Raad v R

Court of Criminal Appeal (NSW)|2015-10-19|Before: Bathurst CJ, Hidden J, Davies J

Solicitors: Bo Yi Ye (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2013/143794 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 23 June 2014 Before: Madgwick ADCJ File Number(s): 2013/143794

Judgment

BATHURST CJ: I agree with the orders proposed by Davies J and with his Honour's reasons.
HIDDEN J: I agree with Davies J.
DAVIES J: On 9 May 2013 the Applicant was charged with firing a firearm at a dwelling house with reckless disregard for the safety of any person. The maximum sentence for this offence is 14 years imprisonment. There is a standard non-parole period of 5 years. He was subsequently charged with two offences of possessing a prohibited drug, being an amount of cannabis and 1.2 grams of amphetamine, and an offence of assault occasioning actual bodily harm in company.
He pleaded guilty to the firearm offence on 3 February 2014 at Burwood Local Court and was committed to the District Court for sentence. He was sentenced by Madgwick ADCJ on 23 June 2014 after a sentence hearing involving both the applicant and the co-offender in the firearm offence, Mohamad Ojaghi, on 20 June 2014. The offences of assault occasioning actual bodily harm and possession of drugs were dealt with by two Form 1 documents.

Facts

The facts involving the offence may be briefly stated. The Applicant involved himself in a long-running dispute between the Hamze family and the Goktas family. That dispute commenced with Hasan Goktas stabbing Ibrahim Hamze when they were school students in February 2011. Hasan Goktas was dealt with by a custodial sentence that expired shortly before 28 August 2012.
On 28 August 2012 Hasan Goktas was at Auburn Railway Station. He was approached by another person who made a number of phone calls that brought the Applicant and another person to the station. Those three persons then violently assaulted Hasan Goktas.
Hasan Goktas informed his father Hakan of the assault, and the pair then travelled to the townhouse complex in which Ibrahim and Bilal Hamze lived with their mother. Hasan Goktas was shot in the abdomen and attempts were made to shoot Hakan Goktas. The Applicant was present at the complex at that time.
On 9 March 2013 Mrs Maha Hamze, the mother of Bilal and Ibrahim, was shot outside their residence. At the time the telephones of the Applicant and the co-offender were being intercepted by the police, and tracking devices had been installed on a car that the Applicant was driving.
On the day of the shooting of Mrs Hamze the Applicant received a phone call telling him about the shooting and that he had to do something about it. It was believed by the caller and subsequently by the Applicant and the co-offender that the Goktas family was responsible for the shooting of Mrs Hamze. In fact, the Gotkas family were not in any way involved in the shooting.
In the result the Applicant drove with the co-offender in the front passenger seat to the Goktas residence in Auburn. The co-offender had a .45 automatic calibre pistol. As they drove past the house, with the Applicant telling the co-offender to shoot, the co-offender fired at the Goktas residence at least eight times. Some of the bullets hit the Goktas residence while others hit the house next door. At the time of the shooting there were people including children in both properties. The people who lived in the adjoining residence were not associated with the Goktas family in any way.
The offenders were arrested on 9 May 2013. The cannabis and amphetamine were found during the execution of a search warrant at the Applicant's premises on that day.

Remarks on Sentence

In his Remarks on Sentence his Honour said that general deterrence and the necessity for a resounding denunciation of the criminality involved in the shooting demanded that condign sentences be imposed. His Honour described the assault on Hasan Goktas as appalling.
His Honour said that there were matters in the background of the Applicant that compelled a degree of mercy. He detailed those matters. In summary they were that the Applicant's father was a heroin addict and provided no support of any sort to the family. The children were brought up by the mother in difficult economic circumstances. The Applicant was diagnosed with Attention Deficit Hyperactivity Disorder. His mother was unable to afford treatment so he did not have it. He was suspended from school on a number of occasions and ultimately expelled in year 9 at the age of 14. He was allowed back to school in year 10 but was expelled in the first week. He then attended TAFE to undertake training as a spray painter but was expelled from that. His Honour said, nevertheless the Applicant had shown a capacity for hard work and had the continuing support of a girlfriend of some four years.
His Honour noted that the Applicant was born prematurely and was likely to have had impaired cognitive skills as a result of his premature birth. He took to drug use from the age of 15 to the point where at 17 he was using cannabis on a daily basis and also abusing benzodiazepines. He had unresolved feelings of hate and anger towards his father.
His Honour noted his custody record which he said was not such as to induce great confidence for the future. That custody record shows a number of offences including drug offences.
His Honour noted a report from Dr John Roberts who considered that the Applicant's substance abuse problem was at the root of the Applicant's other problems.
Having detailed the subjective matters his Honour then said this: As against the objective seriousness of the crime I take into account all the matters that his youth and very difficult background can be said to mitigate in the name of humanity the sentence that he should receive, but I cannot think that any sentence of less than six years would suffice. One should not abandon hope of rehabilitation of one so young and I do not. It is clear that if there is to be any rehabilitation it would be the result, among other things, of his proving that he is worthy of being released to parole before the expiration of the head sentence and, if his behaviour does warrant it, it is very desirable that he should have a period longer than the prima facie 25% of the sentence supervised on parole. I take into account the matters in the Form 1s and, as I indicated earlier he will be sentenced to a minimum term of three and a half years to commence from 9 May 2013 and to expire on 8 September 2016 and to an additional term of two and a half years to expire on 8 May 2019.
His Honour then turned to deal with the co-offender. Having considered matters relevant to him he concluded by saying: For somewhat different reasons, I think the same sentencing disposition is appropriate for him as for Raad and, as I indicated, he will also be sentenced to a minimum term of three and a half years to commence from 9 May 2013 and to expire on 8 November 2016 and an additional term of two and a half years to expire on 8 May 2019.

Submissions

The Applicant submitted that the Sentencing Judge made no reference to the plea of guilty or any discount although at the outset of his reasons his Honour referred to the committal in the Local Court. The Applicant submitted that the Reasons plainly showed an intention on his Honour's part to allow some benefit for subjective matters. The Applicant submitted that when an allowance is made for subjective matters it appears that either the discount for the plea of guilty has been lost or the benefit of the subjective matters has been lost or subsumed in the ultimate sentence. The Applicant submitted that the result deprived the Applicant of the full benefit of the statutory entitlements under s 22 and s 21A (3)(k) of the Act.
The Applicant relied on what this Court said in Wei v R [2015] NSWCCA 66 at [24] - [31] as to the criteria the Court should apply when seeking to ascertain whether an unspecified discount for a plea indicated that the judge did not properly take the discount into account. The Applicant submitted that the focus should be on the reasoning of the Sentencing Judge. It was important, it was submitted, for it to be known generally that a discount is given for an early plea to encourage others.

Consideration

The sentence hearing took place on a Friday. At the conclusion of the hearing his Honour indicated what the sentences would be for the Applicant and the co-offender. He said he would give his reasons the following Monday. Those reasons were given and the sentences formally imposed.
It is significant to note the following exchanges between counsel for the Applicant (Mr Clark) and the co-offender (Mr Radojev) on the one hand and his Honour on the other during the sentence hearing: HIS HONOUR: What would be, just let me come over from the other end, if he was convicted after a trial what would we be looking at as a head sentence, of the order of eight years? RADOJEV: Seven flashed into my mind. But somewhere - Mr Clark's has made it six to eight, so we're probably all on the same page. HIS HONOUR: We're all on the same page. RADOJEV: Yes. Of course then there's the 25%, we'd be saying 25% discount for the plea. HIS HONOUR: So it brings it down to six. RADOJEV: Yes. In fact what we say then is quite a lot of, potentially, subjective material but clearly in my respectful submission-- HIS HONOUR: You've still got to end up with a non-parole period. RADOJEV: Absolutely. … HIS HONOUR: But my problem is a bit different, the prima facie non-parole period would be four and a half years. RADOJEV: Yes, your Honour. HIS HONOUR: I agree he should have a longer parole, a chance for a longer time on parole period than that. RADOJEV: Yes. HIS HONOUR: If I go and make, maybe anything under, certainly much under four years it offends in one sense of what the objective gravity of the crime nevertheless caused. RADOJEV: With respect, your Honour, you're not looking at general deterrence to the same degree if you're not looking at a Muldrock type situation, it's more a matter of - because of the nature of the intellectual impairment. So that allows a degree of flexibility, I'm not saying a huge degree of flexibility but that would allow, perhaps consideration of a reduction to three or three and a half years. HIS HONOUR: Yes. RADOJEV: Then you give him a lengthy period on parole allowing for special circumstances of perhaps another three years which would give you a head sentence of say six years which is not completely ridiculous bearing in mind the figures we're talking about, the early plea, you know, those matters, gives him say for example, and I'm only using figures, say three years inside, he's done 13 months, he's got another 17 months or something to go, he's done some period in time, there's a reason why he should be out and there's certainly a reason why he should be on a lengthy period of parole. CLARK: Could I respectfully just adopt that position of my friend your Honour, that would be essentially, I know that we're supposed discouraged, that counsel ever suggest what length the sentence is going to be. HIS HONOUR: I don't think that the High Court has stopped defence counsel from doing it. They seem to think Judges are unduly prone to accept what the Crown says. CLARK: I mean I have different reasons of course than to my learned friend but they're pretty much on the same page but just so your Honour can know what I'm thinking as well, I would adoptive Mr Radojev's strategy in relation to that in my case because of the young age of my client and the first time in custody. … HIS HONOUR: I just think that, first of all objectively I don't think there's much to choose between them. I mean it's true that Ojaghi pulled the trigger but it's also true that Raad knew exactly what was happening and urged Ojaghi on, and they were both, you know private soldiers that acting at the behest of a sergeant or a captain or some people, and so there is that. But looking the non-parole period, Dr Roberts, says he needs a minimum of two years which sounds persuasive but Ojaghi has consistently expressed remorse, and there is none of that from your client? CLARK: There is in the presentence, your Honour. … HIS HONOUR: Yes. I don't need to hear you, subject to this, Mr Crown, there's no principle that I can discern that would require that Raad get more here as a head sentence or as a non-parole period than the other man? CURRAN: No, your Honour, there isn't. HIS HONOUR: All right. I see there and it's 4 o'clock and it's Friday. I will indicate for the benefit of the prisoners what I am going to do. I am going to sentence you both to a non-parole period of three and a half years dated back to when you went into custody and an additional term of two and a half years, so that is six all up, the three and a half on the bottom, and I will give my reasons for that on Monday, the prisoners should be returned for that purpose. Counsel may be excused if they wish on that day. (emphasis added)
It may be noted that neither at the conclusion of the hearing on 20 June nor when the sentence was formally imposed on 23 June did either counsel say anything to his Honour to suggest that he had overlooked the early plea.
In RCW v R (No. 2) [2014] NSWCCA 190 R A Hulme J (with whom Bathurst CJ and Adams J agreed) said: [37] Before turning to the proceedings on sentence it is worth being clear about the utility of doing so. "Normally this Court will not find an error of principle from interchanges between the bench and counsel that indicate an apparent incorrect appreciation of the law, since those views do not necessarily reflect a considered decision": R v Pham [2005] NSWCCA 94 at [11] (Wood CJ at CL). However, there are circumstances in which there may be some utility in having regard to statements from the bench during the course of submissions; for example, when they can assist in elucidating abbreviated statements appearing in remarks on sentence: Peiris v R [2014] NSWCCA 58 at [67] (Leeming JA). In my view there is also some utility where during the course of submissions a judge exposes his or her reasoning and announces a concluded view which is ultimately maintained without any qualification of the reasoning in an immediately ensuing ex tempore sentencing judgment. Similar statements have been made in Peiris v R [2014] NSWCCA 58 at [67] (as noted by R A Hulme J) and in R v Robinson [2014] NSWCCA 12 at [19].
In my opinion, the exchanges set out above may be taken into account, not the least reason for which is that his Honour, shortly after they occurred, said that he would sentence the offenders as he had indicated in the exchange. When his Honour was discussing the matter with Mr Radojev it is clear that the 25% discount brought the notional eight years starting point to six years which was ultimately imposed.
It cannot be said that the subjective matters have thereby been lost. The starting point of eight years is referred to after the co-offender's subjective matters had been identified by Mr Radojev. His Honour dealt at length with the subjective matters and employed some of them in adjusting the statutory ratio between the non-parole period and the overall sentence particularly for the purposes of rehabilitation as Dr Roberts had suggested.
No assistance can be derived from Wei. It is apparent that if the sentence in that case had not been discounted for the early plea the sentence would have been manifestly excessive: see at [27] and [31]. In the present case the Applicant expressly declined any suggestion that the sentence imposed was manifestly excessive. Quite apart from what has already been discussed concerning the way the sentence was reached by the Sentencing Judge, the absence of any manifestly excessive sentence prevents any inference being drawn from the sentence itself that the discount was overlooked.
In my opinion, the Sentencing Judge did not overlook nor fail to apply the discount for the early plea.
Further, even if error is identified in the way asserted, consideration would need to be given to whether any lesser sentence was warranted. The Applicant submitted that a starting point of seven years taking into account his subjective considerations was appropriate. The 25% discount would then reduce that to an overall sentence of five years three months with a corresponding reduction in the non-parole period.
This was a very serious offence requiring condign sentences as the Sentencing Judge observed. The eight bullets fired penetrated two houses where persons including children were present. Such offences were prevalent as the Sentencing Judge noted. The Form 1 offence of assault occasioning actual bodily harm was also at a high level of objective seriousness. The Applicant's subjective matters could only mitigate the appropriate sentence in a small way.
In my opinion no lesser sentence than a six year sentence was warranted in all the circumstances. In dealing with the matter in that short hand way I do not overlook what was said in Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [43] and by R A Hulme J in Thammavongsa v Regina [2015] NSWCCA 107 at [16]-[25].
I would propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2015

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