Rangihuna v R

The facts

1. The agreed facts adopted by the Sentencing Judge disclosed the following. 1. (a) St George Hotel, 9 December 2011

Count 1: Assault with intent to rob, in company, whilst armed with a dangerous weapon

Form 1 offence - Stealing

1. About 3:15am on Friday 9 December 2011 three offenders, including the Applicant, forced a rear glass door to the St George Hotel, at 618 Canterbury Road, Belmore causing it to shatter. The Applicant was armed with a black replica pistol. One of the others carried an axe. One of the others was carrying a bag and told hotel staff and security (Wayne Borg) that it contained a shotgun. The offenders violently confronted Wayne Borg with the weapons, throwing him to the ground. They forced him to go to the gaming and bar areas.
2. The offenders were yelling at Wayne Borg to make him comply, and were also demanding cash. There was a guard dog in the vicinity. The man with the axe (not the Applicant) said, "If the fucking dog bites me I'll smash you in the head with the fucking axe." The Applicant said nothing at that time. Mr Borg was terrified.
3. It was the intention of the offenders as part of a joint criminal enterprise, including the Applicant, to rob the hotel of the money which was the proceeds of the night's trading.
4. The group were unable to access any of the proceeds of the hotel's trade as it had already been reconciled and secured in an office safe prior to the offence. This money was in the possession of the bar manager, Chien Hui Lo. As they left, the offenders stole a wallet belonging to Mr Lo, containing $100 and bank cards. The stealing of this wallet and its contents was part of a joint criminal enterprise between the offenders. (1st Form 1 offence).
5. The offenders wore the hooded jumpers back-to-front. The hoods, with eye holes cut out at the "rear", concealed their faces and were tied behind their heads so that, effectively, they acted as balaclavas.
6. Police responding to the robbery recovered a plastic magazine to the replica pistol which had been used in the offences in the rear car park of the hotel. This had been dropped either just before or just after the offences.
7. Some telephone conversations involving the Applicant were intercepted. These included discussions about surveying potential locations to commit robberies, the group meeting at the Applicant's house before the offence and the use of equipment stored in co-offender Bokhari's vehicle for use in this offence. Bokhari was a friend of the Applicant.
8. Physical surveillance operations sighted and photographed the Applicant associating with Bokhari and travelling in Bokhari's maroon Holden Commodore sedan several hours before this offence on 8 December 2011.
9. On 20 December 2011, police searched Bokhari's maroon Holden Commodore sedan. A black replica self loading pistol was located in the vehicle's front passenger door. The replica pistol was reasonably heavy with a partly metal frame and working slide, but the magazine inserted through the pistol grip was missing. The pistol magazine located at the scene of the St George Hotel robbery was found to match and fit this pistol.
10. Plastic cable ties and several sets of clothing including hooded jumpers, tracksuit pants, pairs of gloves and shoes were also located in the boot of the vehicle. DNA on swabs taken from clothing found in the car was analysed. The analysis shows that 7 of the items had the same DNA profile as the accused.

(b) Earlwood Bowling and Recreational Club - 11 December 2011

Form 1 offence: Break and enter with intent to steal, in circumstances of aggravation (in company)

1. About 12:45am on Sunday 11 December 2011 four offenders armed with a black replica pistol, a military style rifle and a crow bar forced entry to the Earlwood Bowling and Recreational Club on Woolcott Street, Earlwood by kicking in and smashing the glass panel of a side entrance to the premises. The Applicant was carrying the replica pistol.
2. As they entered the main bar area they were interrupted by a guard (Denis Andrews) who activated the security alarm. This resulted in them leaving before being able to steal the proceeds of the night's trading, which was their joint intention when they broke in. One offender attempted to access the poker machines without success.
3. As in the St George Hotel offences, the offenders wore the hooded jumpers as described at [11] above.
4. Telephone interception evidence included discussions between members of the group involved in the commission of this offence (including the Applicant) about making observations of access points and security measures at the Earlwood Club on 25 November 2011, the Applicant attempting to contact Bokhari several hours before the offence (Bokhari had been storing weapons and clothing used by the group in the commission of armed robbery offences) and members of the group meeting at the Applicant's residence after the offence.

(c) The Metro Service Station at 442 Punchbowl Road, Belmore - 24 December 2011

Count 2: Armed robbery in company, whilst armed with a dangerous weapon

1. About 5:30am on Saturday 24 December 2011, the Applicant and a co-offender Coleman Rongo entered the Metro Service Station at 442 Punchbowl Road, Belmore. The Applicant was armed with a black replica pistol and the co-offender was armed with a knife. An employee, Fakhrul Munna, was working alone.
2. The Applicant pointed the replica pistol at Mr Munna and threatened him. The co-offender threatened Mr Munna with the knife. Mr Munna was terrified. They robbed Mr Munna of about $1500 from the cash register and forty assorted packets of cigarettes before fleeing in a Silver Nissan Pulsar SSS hatchback.
3. The offenders again disguised themselves with jumpers worn backwards and hoods concealing the faces in the same manner as balaclavas and strikingly similar to the disguises worn during the commission of the earlier offences at the St George Hotel and the Earlwood Club.
4. Telephone interception evidence included discussions pre-offence between the Applicant and Rongo about meeting for the purpose of "training" (coded language used to describe them preparing for and committing armed robberies) and discussions post-offence about a police media release that identified a vehicle to be a silver Nissan Pulsar SSS hatchback as being believed by police to have been used in connection with the offence. In these discussions it was evident that those involved, including the Applicant were concerned about being seen and/or linked to the vehicle.
5. The Applicant was in possession of the Silver Nissan Pulsar SSS hatchback before and after this offence.

Count 3: Armed robbery in company, whilst armed with a dangerous weapon

1. About 3:40am on Sunday 25 December 2011, the Applicant, Albert Blake and another male accessed the Forest Inn at 467 Forest Road, Bexley by kicking in and smashing a door. The Applicant was armed with a black replica pistol. The co-offenders were armed with a knife and a pipe or bar.
2. They confronted staff and patrons with their weapons, demanding they lie on the floor, before dragging the bar manager (Rodney Austin) to the office and robbing him of $19,082.00 cash which was the evening's bar and poker machine trade proceeds. During this time Mr Austin was hit in the head by one of the offenders. The Applicant repeatedly pointed the replica pistol at the bar manager, and at other staff, who thought it was a real gun. The victims were terrified by the actions of the offenders.
3. Prior to leaving, the offenders attempted to smash open the sliding glass security door at the front entrance by kicking it. The offenders then fled.
4. Two of the offenders, one of whom was the Applicant, disguised themselves in the same hooded jumpers as those worn in the armed robbery at the Metro Service Station the previous morning using the improvised concealment of their faces. These offenders were also armed with the same weapons as those used in the commission of that earlier offence.
5. Telephone interception evidence included discussions involving the Applicant and Blake about the offenders meeting and coordinating equipment for use in the commission of the offence.
6. At 7:00pm on Tuesday 31 January 2012, the Applicant presented himself at Campsie Police Station in accordance with an existing bail order on unrelated matters. He was arrested in connection with the armed robbery matters and entered into custody.

Subjective matters

1. The Applicant was born in April 1984 and was aged 27 at the time of the offending. His criminal record commenced in May 2000 when he was convicted in the Bidura Children's Court for the offence of robbery in company. For that offence he received 100 hours of community service.
2. Later the same year he was convicted of two counts of robbery armed with an offensive weapon in respect of which he received a control order for nine months. The following year he was convicted of assault occasioning actual bodily harm and another count of robbery. He was given a 9 month control order for the robbery.
3. There were no further convictions until December 2008 when he received a 12 month section 9 bond for an assault occasioning actual bodily harm. His offending was, therefore, sporadic, although the offences were serious. The Sentencing Judge, whilst accepting that most of the offences were ten years prior or more held, nevertheless, that the Applicant's record did not assist him.
4. The only evidence concerning the Applicant's background was contained in a pre-sentence report and a psychological report prepared by Chris Probetts of Proactive Psychology. The contents of both reports were simply adopted by the Applicant in his evidence in chief before the Sentencing Judge despite there being inconsistencies between them.
5. The Sentencing Judge rejected the conclusions in the report of Mr Probetts largely because his Honour said it appeared to accept unconditionally and unequivocally the assertions of the Applicant on which it was based. The Sentencing Judge noted, however, that the psychological report revealed that the Applicant had no psychological disorder and did not require treatment.
6. The Applicant was born in New Zealand and moved to Australia when he was seven or eight years of age. He had a good relationship with his parents during his childhood. His parents were still together and were happily married. The Applicant was the youngest of six children.
7. He completed Year 10 but by that time he was under the supervision of Juvenile Justice for his early offending. He undertook and learnt certain employment skills and was subsequently employed mainly in audio-visual assembly including plasma screens, projectors and interactive white boards.
8. He met his partner in about 2008 and one boy was born to that relationship.
9. At some point he ascertained that his partner was working as a prostitute and that caused difficulties and separations. The Applicant told the Community Corrections Officer who prepared the pre-sentence report as well as Mr Probetts that it was the breakdown of the relationship which was responsible for his increased alcohol and illicit drug abuse that led to the present offending.
10. However, he told the Community Corrections Officer that he commenced using alcohol at the age of 16 and would consume alcohol on a weekly basis drinking to intoxication each time. He said he had been smoking one gram of cannabis every second day since the age of 16 and that had increased to three grams a day in 2010. In that year he also commenced smoking heroin every third day and methamphetamine daily. He did not see any of these matters as being problematic. The Corrections Officer said that he tended to justify his behaviour by saying that he had committed the offences to finance his increased alcohol and illicit drug use.
11. The Sentencing Judge formed a most unfavourable view of the Applicant. He found him to be neither remorseful nor credible.

Remarks on Sentence

1. The Sentencing Judge noted that the offence on the Form 1 of aggravated enter a building with intent was a serious offence. His Honour observed that placing an offence on a Form 1 did not make the offence thereby disappear. Rather, the function of a Form 1, if appropriate, was to increase the sentence on the substantive charge because additional criminality was identified. His Honour considered that there was additional criminality at least by that offence.
2. The Sentencing Judge said that the offences were very serious ones with a great deal of violence. His Honour noted that the people who suffered from the carrying out of those crimes must have been terrified, and probably for some considerable time after were affected by psychological sequelae of their experiences. His Honour said that the principle of general deterrence had a special part to play.
3. His Honour then dealt with the two reports to which I have referred and went on to say this: I do accept the pre-sentence report, the author of which referred to the prisoner's attitude as being not one of remorse concerning at least the victims and that report identified a clear need for the prisoner to be supervised, supported and guided in a number of areas, especially counselling for drug and alcohol abuse and gambling. To facilitate the lengthy delivery of these supervisory services and to mark the fact that this is the prisoner's first time in adult custody I have made a very small adjustment to the overall propositions (sic) of his sentence. Some adjustment to the last sentence was necessary in any event because of the accumulation of these sentences. Accumulation itself is necessary to mark the fact that these are entirely separate crimes, committed at different times, involving different victims. However the reasonably brief span of time during which they were committed, the connections in terms of equipment, clothing and so on as being part of a campaign of crime and the methods all tend towards some concurrency. By far the most important reason for concurrency however is the principle of totality in order to bring these sentences back within the range appropriate overall to the criminality displayed so some concurrency has been ordered and some accumulation.

Ground of appeal

1. No issue was taken by the Applicant with the individual sentences imposed nor with the fact that there was a partial accumulation of the sentences. It was the structuring of the sentences which was said to have led to a combined sentence that overstated the total criminality. During oral submissions it was made clear that the error in accumulation was said to have occurred in relation to Count 3. It was submitted that the 3 year accumulation on the sentence for Count 2 led to the overstatement of the criminality.
2. The Applicant accepted that questions of concurrence or accumulation are a discretionary matter for the Sentencing Judge. Reference was made to R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at [7] and Johnson v The Queen (2004) 78 ALJR 616 at [26]. However, the Applicant submitted that the discretion must be subject to what is required in a particular case to reflect the totality of the criminality, referring to Howie J in R v Merrin [2007] NSWCCA 255; (2007) 174 A Crim R 100 at [36].
3. The Applicant pointed to three matters that it was said demonstrated that the accumulation was unreasonable and unjust on a House v The King basis. First, the offences in Counts 2 and 3 were both committed within a very short period of time of each other. Secondly, despite his early offending, the Applicant had not come to the attention of the authorities for some years. Thirdly, reliance was placed on the Applicant's subjective circumstances, particularly his problems with drugs and alcohol.
4. The Applicant relied on five cases involving multiple robbery offences for the purpose of demonstrating the way the courts have exercised the discretion to accumulate. Those cases were R v Smith [2007] NSWCCA 100, R v Lesi [2010] NSWCCA 240, R v Taufahema [2010] NSWCCA 241, McCarthy v R [2011] NSWCCA 64; (2011) 206 A Crim R 131, and McIvor v R [2010] NSWCCA 7.
5. Minimal assistance can be obtained from those decisions in the way the sentences have been structured. Three of the decisions were Crown appeals with the limitation that results in using them as comparisons even if it was regarded as appropriate to compare the results in other cases. Of some significance, however, is what Adams J (with whom Handley AJA and Howie AJ agreed) said in McCarthy: [76] In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 the approach to the question of accumulation and concurrency was (if I may respectfully say so) aptly summarised by Howie J (with whom the other members of the court agreed) as follows: [27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both. … [78] The fundamental problem in the present case, in common with many cases where there are a number of offences for which an offender must be sentenced, is not so much whether the offences are completely separate occasions of criminality or part of one or more criminal enterprises but, rather, how to structure the sentences so that the ultimate overall sentence and non-parole period appropriately reflect the total criminality. It is also important, in cases where discounts have been applied, to ensure that the accumulation does not effectively reduce the discount, in short to take away with one hand what has been given by the other. [79] It seems to me that, in the present case the most useful approach is to identify the overall sentence which reflects the totality of the applicant's criminality and adjust the accumulation of the sentences as necessary to yield that result. In undertaking this task, it will follow that issues of distinct offences must be substantially disregarded, though this consideration will have played its part in the determination of the appropriate overall sentence.
6. The starting point, therefore, in the present case should be the overall sentence imposed. The overall sentence was 11 years 3 months with a non-parole period of 8 years and 3 months, but a discount was given for a late plea of 12½%. Bearing in mind the discount, the overall sentence might otherwise have been something in the order of 13 years.
7. A number of matters suggest that the overall sentence and, therefore, the structure of the sentences, should not be interfered with.
8. First, as the Sentencing Judge pointed out, the offences were very serious indeed. They involved actual violence and not just the threat of violence. The telephone intercepts demonstrated the level of planning involved. The offence, the subject of Count 3, involved the theft of more than $19,000. Further, one of the offences on the Form 1 was a serious offence of aggravated break and enter with intent. It was only that the offenders were confronted which meant that they failed in their attempt to steal the proceeds of the night's trading at the Earlwood Club.
9. Secondly, the fact that the offences comprising Counts 2 and 3 were committed in close proximity in time cannot mean necessarily that the accumulation provide for Count 3 was excessive. In R v Nguyen [2007] NSWCCA 14 Howie J said: [12] It seems obvious from a number of matters that have been before this Court recently, that there is abroad an insufficient understanding of the principles of totality and of the relevant factors to be taken into account when determining whether to order that sentences be served concurrently or made, at least, partially cumulative. There is no rule that sentences for offences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of this Court that should make it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence…
10. Thirdly, the Applicant had few subjective matters in his favour. It was true that he had largely not offended for some years prior to these offences, but where the Sentencing Judge rejected his evidence and the evidence contained in the psychologist's report, there was little to provide the basis for any leniency from the subjective factors.
11. Finally, the Sentencing Judge gave particular consideration to the issue of totality and accumulation as is apparent from the passage set out at [45] above. His Honour correctly summarised the principles derived from cases such as Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, Mill v R (1988) 166 CLR 59 and Johnson v The Queen. Beyond that, the matter is ultimately one of discretion as Rothman J (Whealy JA and Davies J agreeing) said in JT v R [2012] NSWCCA 133: [71] The exercise involved in determining accumulation and concurrence and the application of the principles of totality are inconsistent with the proposition that one single correct answer will be derived in every circumstance by every judge. The application of the principle of totality is an exercise of discretion, intuitive or instinctive synthesis, and cannot be conducted arithmetically…
12. The Applicant does not show that the Sentencing Judge's discretion miscarried. In those circumstances the appeal must fail.

Conclusion

1. I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed.
2. BELLEW J: I agree with Davies J.

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