Regina v Alameddine

48 Similarly in R v Palu [2002] NSWCCA 381 at paras 39 to 42, and in R v Qutami [2001] NSWCCA 353 at paras 58-59 and 79, attention was drawn to the proper approach to be taken in relation to self serving statements appearing in experts reports, and to contentious areas of fact arising from pre-sentence reports. 49 There was a paucity of evidence from which the question whether the Applicant went into the premises, and personally threatened or struck anyone, could have been determined. The offenders were all wearing balaclavas or hoods and could not be identified. Moreover, there was not complete agreement between the various witnesses as to how many offenders were seen or heard. No doubt that was due to the haste in which the offence was committed, the degree of violence involved, and the different locations in which the eyewitnesses found themselves. 50 It is not at all clear whether his Honour came to any firm conclusion in relation to this question, particularly in view of his observation that he was: "not entirely confident that whether [the Applicant] entered the building or not would make any particularly significant difference or a difference of any description really in connection with the likely offence" 51 It was however submitted on the appeal that if the Applicant had not entered the premises and personally participated in the violence that was there displayed, then that should have been reflected in a finding that he was not as culpable objectively as the other offenders, leaving aside presumably Raha. Support for this submission was said to be found in the decisions of this Court in R v Nevermann (1989) 43 A Crim R 347 at 349 - 350, R v McCarroll [1999] NSWCCA 237 at para 16, and R v Donovan [2003] NSWCCA 324. 52 While there is a difference between the circumstances which are sufficient to render a person criminally liable for conduct that comes within joint enterprise principles, and that which establish the extent of such offender's culpability, inevitably this becomes a question of degree. 53 I am not persuaded that the submission advanced in this case has been made good. The first two decisions cited go little further than reinforcing the need for sentencing judges to make sufficient findings in relation to the objective criminality of the offender. Donovan involved a very different factual situation in which the offender's role was clearly subservient to that of the other offenders. 54 Of more relevance is the observation of Carruthers AJ (with whom Beazley JA and I agreed) in R v Hosche [2001] NSWCCA 317 at 18: "18 Insofar as the factual matters are concerned, it is, in my view, sufficient to notice the fact that the criminal law has always looked with great disfavour upon robbery in company. If two persons agree to perform a joint criminal enterprise, such as in the instant case of robbery of an unarmed, innocent bystander, then it is inappropriate to attempt to assess with any degree of precision the role which each played in the consummation of the criminal enterprise. " 55 So far as counsel for the Applicant advanced a submission to this Court that he should have been sentenced on the basis that he did not enter the premises, and in fact lost his nerve and withdrew once he heard gunshots, I would reject that submission. 56 In the absence of sufficient evidence the question remained one that could not be resolved in a way that went either to increase, or to decrease the sentence that was to be imposed. The case was one for which the observations of the majority of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) in Weininger v The Queen (2003) 140 A Crim R 184 were appropriate: "…Framing the question in terms of the onus and standard of proof may suggest that all disputed issues of fact related to sentencing must be resolved for or against the offender. That is not so. As was recognised in Olbrich , some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed. There may be issues which the material available to the sentencing judge will not permit the judge to resolve in that way. … As the majority pointed out in Olbrich at [278] prosecuting authorities and a sentencing judge will often have only the most limited and imperfect information about how it was that the accused came to commit the offence for which he or she is to be sentenced. Although s 16A(2)(a) requires a sentencing judge to take account of the nature and circumstances of the offence, that requirement is not absolute. They are to be taken into account only to the extent that they are relevant and known to the court. The sentencing judge may not be able to make findings about all matters that may go to describe those circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt at [280]. Accordingly, in the particular facts of Olbrich , where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier." 57 What was decisive in this case, for sentencing purposes, was the nature of the enterprise to which the Applicant lent himself. 58 On any view, this was a well planned and organised criminal activity in which threats, and the use of weapons, to overcome any resistance that was offered by the persons inside the premises, who were also likely to have weapons in their possession, albeit for lawful purposes, was inherent. 59 The Applicant was centrally involved in it. He accompanied his co-offenders to the scene, in circumstances where it was known that they were armed with loaded weapons and a jemmy bar, which they were prepared to use to overcome resistance. He was the offender who was receiving and passing on instructions at the scene, and he assisted the co-offenders to burst into the room in circumstances where it was known, from a communication from Raha, that there were at least five persons inside. It was he who gave instructions to the driver of the get away vehicle, and it was he who reported to Raha about the presence of police. He assumed responsibility for the subsequent attempts to dispose of the weapons that had been stolen. 60 His role was hardly that of a bit player, on the fringes of the enterprise, as any reasonable view of the intercepted conversations shows. Rather he was the coordinator of what occurred at the scene and his culpability was equally as great as the others who were there. 61 The present case is accordingly not one where his objective criminality could be reduced by the circumstance, if it be the case, that he did not personally step past the front door, or directly threaten any person, or discharge a weapon. This ground is without substance.

Ground 2 - The Sentence is Manifestly Excessive 62 His Honour expressly had regard to the judgment in R v Henry (1999) 346 NSWLR 367. The present case shared three characteristics with Henry, so far as the Applicant was a young offender with little by way of a criminal record; weapons were involved in the offence that were capable of killing or inflicting serious injury; and there was a plea of guilty, the significance of which was limited by a strong Crown case. Otherwise it was significantly more serious than the typical case considered in Henry, in so far as there was considerable planning and violence involved, and property and cash of significant value were taken. 63 The age and record of the Applicant and the fact of the plea were mitigating circumstances within s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, as were the Applicant's prior good character and remorse. Additionally there was the assessment that he was unlikely to re-offend and that he had good prospects of rehabilitation. 64 On the other hand there were a number of aggravating circumstances within the meaning of s 21A(2), leaving aside those matters that were elements of the crime, in so far as the offence was committed in company, involved the actual and threatened use of violence, was committed without regard for public safety, involved multiple victims who suffered bodily injury and/or emotional harm, occurred at a time when the Applicant was subject to a bond, and was part of a planned and organised criminal activity. 65 Additionally there was the circumstance that the object of the crime was to secure, and then to sell on the illegal market, for significant profit, handguns that would have inevitably found their way to other criminals. The grave concern which the community has for the proliferation of weapons of this kind cannot be ignored in the case of an armed robbery that has that object in mind. 66 This was a case, accordingly, for which the guideline judgment in Henry provided only limited assistance. His Honour's description of it as an offence that was not far removed from the worst category was well justified. Moreover, it was one where despite the youth and the previous good character of the Applicant, the favourable subjective considerations had to give way to the grave objective culpability that was involved, for the reasons outlined in R v AEM [2002] NSWCCA 58 at para 97 and R v Tran [1999] NSWCCA 109 at para 10, as well as those noted in R v Rushby [1977] 1 NSWLR 594. 67 There was the additional consideration, which needed to be taken into account, in accordance with the guideline judgment in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518, of the 15 matters on the Form 1. Their presence required the sentence for the armed robbery offence to be increased beyond that which would have been appropriate, had it stood alone, so far as weight had to be given to the elements of personal deterrence and the community's entitlement to exact retribution for that offence, when there were other offences for which no punishment had in fact been imposed. 68 Of those fifteen offences, six (numbers 1, 2, 7, 8, 9, 10) were directly related to the subject offence, including offences of armed robbery and assault respectively of Messrs Alas and Masri, the receiving of stolen weapons and failing to keep firearms safely. Four (items 3, 5, 13 and 15) indirectly related to the enterprise, being offences involving the possession of unauthorised firearms, the sale of unauthorised firearms and the possession of ammunition without a licence or permit. 69 The remaining five offences were separate offences (items 4, 6, 11, 12 and 14), and included the detention for advantage in company of Danny Quays, the possession of a ballistics vest, conspiracy to steal a Ford Laser, goods in custody (a Nokia phone) and concealing a serious indictable offence (a separate armed robbery). These were not insignificant matters and they clearly justified a significant increase in the sentence. 70 Finally, there was the circumstance that the Applicant, was subject to a bond for an offence of larceny of a motor vehicle, a circumstance that also had to be taken into account, for the well known reasons expressed in R v Daridis NSWCCA 18 December 1986 and R v Readman (1990) 47 A Crim R 181. 71 The evidence that the Applicant was of below average intelligence, was somewhat gullible and easily led, that he was acting under firm, and sometimes angry or frustrated direction from Raha, and had favourable subjective circumstances, remained relevant. However, they were not persuasive considerations operating in mitigation of sentence because of the aggravating circumstances which I have mentioned. The starting point of 10 to 12 years selected by his Honour, and the resultant head sentence, were not manifestly excessive.

Ground 3: - (a) His Honour made inadequate allowances for, and failed to give effect to, his finding of special circumstances; (b) The non-parole period is manifestly excessive. 72 The case was one to which the recently repealed version of s 44 of the Crimes (Sentencing Procedure) Act applied, and required the court firstly to set the term of imprisonment, and secondly to set the non-parole period which could not be less than 75% of the term of the sentence, unless special circumstances were established. 73 His Honour said, in the light of the Applicant's age, the fact that he had never before committed a violent crime, and the fact that he had a supportive family which enhanced his prospects of rehabilitation, that: "I have absolutely no hesitation in finding special circumstances in favour of the prisoner that would enable me to ameliorate any non-parole period, and that is what I propose to do" (R/S 10) 74 It was submitted that meaningful effect was not given to this finding, since the non-parole period of 5 years and 6 months was only 6 weeks less than three quarters of the term of the sentence of 7 years and 6 months, (that is, 73.3% of the head sentence). 75 Reference was made to the decision of this Court in R v Watego [2001] NSWCCA 236 at paras 7 to 10, where it was accepted that the sentencing judge, in that case, had overlooked a similarly stated intention to find special circumstances, when extending the parole period by only 3 weeks. 76 Reference was also made to the Judicial Commission statistics which indicated that, for all offenders charged with an offence under s 97(2) of the Crimes Act, (174 cases) a non-parole period of 5 years and 6 months (reflected in the statistics as 6 years) was in the top 10% of sentences. 77 The approach, which his Honour took in this case, needs to be considered in the context of the fact that he had reduced what he had considered to be an appropriate starting point for the term of the sentence (10 to 12 years), to 7 years and 6 months. The observation relied upon needs to be understood in its full context as follows: "I have absolutely no hesitation in finding special circumstances in favour of the prisoner that would enable me to ameliorate any non-parole period, and that is what I propose to do. And I will give him the full discount in connection with his plea of guilty, what I see as the full discount, making some allowances for the strength of the Crown case. It seems to me that having regard to the seriousness of the case the best I can do is reduce what I would otherwise see as the head sentence by something between twenty and twenty five per cent. I think that is possibly erring in favour of the prisoner but I do not know that having done that, there is much else I can do for him other than to ameliorate the parole and non-parole period." 78 Although this was somewhat infelicitously expressed, it appears that his Honour had taken into account both the plea of guilty and the matters that were capable of qualifying as special circumstances when reducing the starting point of 10 to 12 years to 7 ½ years. 79 This tends to be confirmed by his Honour's remark that this was "possibly erring in favour of the prisoner". It would seem that his Honour took the view that any further reduction of the term of the sentence and of the non-parole period would have resulted in a sentence that was disproportionate to the objective seriousness of the case. 80 That was an approach which was properly open to his Honour: R v Henry [1999] NSWCCA 107 where Simpson J said, at para 76: "76. A sentencing judge, having found special circumstances, has a good deal of room to move in the structure of the sentence to be imposed. However, the discretion conferred by s 5(2) should always be exercised with one eye on the relevant minimum term, which must be such as properly to reflect the objective gravity of the crime for which it is imposed, taking into account the subjective features: see R v. Power (1974) 131 CLR 623; R v. Morrissey , unreported, NSWCCA, 15 July 1994; R v. McDonald , unreported, NSWCCA 12 October 1998. A sentencing judge who varies the statutory proportion in favour of a lengthier additional term needs to take care to ensure that the minimum term is no lower than that which is commensurate with the objective gravity of the crime." 81 The finding of special circumstances, especially where they have already been taken into account in reducing the term of the sentence, does not mandate a variation in the statutory ratio: R v Bertoncello NSWCCA 5 November 1997 and see also R v Simpson (2001) 126 A Crim R 525 at paras 59, 63, 65, 68, and 73 per Spigelman CJ. 82 I am not persuaded that any greater variation should have been made in relation to the non-parole period. To have done so would have been to produce a sentence that would have been inappropriately lenient. 83 It is also not to be overlooked, in this context, that an extended period of potential release on parole is not necessarily advantageous to an offender, having regard to the possibility of revocation for non compliance with parole conditions, resulting in a need for the balance of parole to be served.

Ground 4 - The Applicant has a justifiable sense of grievance when considering the sentence imposed upon his co-offender Nassiem Amood. 84 Amood was sentenced by his Honour Judge Hosking, on 31 December 2003 for the armed robbery and for two offences of selling unauthorised firearms. Six offences were taken into account on a Form 1. They comprised four offences of armed robbery and one of aggravated assault with intent to rob, all of which were directly related to the events at Condell Park. The only unrelated matter was one count of driving while disqualified. A 25% discount for the plea of guilty was given. 85 Judge Hosking noted that this offender's criminality was at the same general level as the Applicant. He was expressly sentenced on the basis that he had been one of the offenders who had entered the premises, and had been the last man to leave. 86 His subjective circumstances were found to be worse than those of the Applicant in that he had been aged 25 years at the time of the offence, and had a significant criminal record. 87 His Honour noted that the present Applicant had 15 matters on a Form 1, while Amood had only 6 matters. He concluded that Amood's less favourable circumstances should be reflected in a higher overall sentence but not in a higher non-parole period. This was justified upon the basis that he did not want to jeopardise what he regarded "as some real prospects of rehabilitation" that Amood had. 88 The difference between the two offenders was accordingly addressed by imposing a term of imprisonment for the armed robbery offence that was 6 months longer than that applicable to the Applicant, meaning that his parole period was potentially longer. The partial accumulation of sentence for the firearm offences resulted in Amood's overall non-parole period being six months longer than that imposed on the Applicant. 89 Counsel for the Applicant submitted that the was entitled to entertain a justifiable sense of grievance in relation to the Amood sentence, given the different roles which the two offenders had played, the less favourable circumstances of Amood, and the fact that the latter was charged with three offences. 90 The relevant principle is that set forth in the well known decisions of Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 98 A Crim R 134 at 301 and it does not require repetition, for the purpose of determining this application, other than to note that, for the Court to intervene, it must be satisfied that the difference in sentences between co-offenders, after making sufficient allowance for any differences in their objective and subjective circumstances, would leave the Applicant with a justifiable sense of grievance. 91 I am not persuaded that this ground has been made good. 92 For the reasons already identified, I am unable to accept that there was any material difference in the objective culpability of the two offenders, such as to justify any lesser sentence having been imposed upon the Applicant. 93 While it is true that Amood stood for sentence in relation to three charges, two of those arose from his sale of weapons that had been stolen from the Firing Range. Similar offences in relation to the Applicant were included in his Form 1. Five of Amood's Form 1 offences were directly associated with the events at the Firing Range, as were at least six of the fifteen offences taken into account on the Applicant's Form 1. 94 The only Form 1 offence of Amood that was unrelated to the events at Condell Park, or their aftermath, was a relatively minor offence of driving while disqualified. In the Applicant's case there were several unrelated offences, including the possession of a ballistics vest, conspiracy to steal a motor vehicle, goods in custody, concealing a serious indictable offence, and, most seriously of all, detention for advantage. 95 The difference between the number and nature of the offences, which were to be taken into account, balanced the difference in the subjective circumstances of the two offenders, such that the Applicant is not entitled to entertain a justifiable sense of grievance. 96 This ground has not been made good. 97 It follows, in my view, that error has not been shown. Submissions were received as to the orders which the Court should make, in the event of it deciding that the appeal lacked merit. This was related to the circumstance that the other persons charged with the armed robbery are yet to be tried and sentenced, leaving open the possibility that a fresh question of parity might arise in the event of one or more of them receiving a sentence that is more favourable than that passed upon the Applicant. 98 To allow for the possibility of a further appeal, it was submitted that the preferable course was to refuse leave to appeal, rather than to grant leave and to dismiss the present appeal. In support of this proposition reference was made to the observations of Dawson and Gaudron JJ in Postiglione v The Queen at 305: "Ordinarily, it is of no consequence whether an order is made dismissing an application for leave to appeal or whether leave is granted and the appeal dismissed. However, putting aside applications which are frivolous or vexatious, there is no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed. An application based on matters agitated on a previous application is properly to be regarded as frivolous or vexatious. But that is not the case where an application is based on a sentencing disparity which has subsequently emerged. That is always a possibility in a case of this kind. That being so, the interests of justice require that, if an application for leave against sentence is to be heard and determined against an Applicant before a co-accused is brought to trial, leave be refused, rather than that the appeal be dismissed." 99 Kirby J provided some support for this approach, in so far as he observed, at 333: "In the nature of complaints of disparity in sentencing (and as the facts of this case demonstrate) it will quite often be the case that the disparity which is said to give rise to the justifiable sense of grievance is not finally known until a considerable time after the complaining prisoner was sentenced. Where the final sentencing of a co-offender, or of another relevant offender, remain outstanding it may well be sensible for a Court of Criminal Appeal to adopt the expedient proposed by Dawson and Gaudron JJ in their reasons." 100 I am of the view that there is always merit in disposing of appeals in a way that achieves finality, and that there is something of a chicken and egg argument involved in leaving the final determination of parity questions until all the relevant proceedings are concluded. I have however reached the conclusion, in this case, that the proper order is to refuse leave to appeal, upon the understanding, which was accepted by counsel for the Applicant, that if further leave is sought, then it will be limited to any question of parity that may arise in relation to the sentences which are passed upon any other persons who are convicted of or plead guilty to the subject offence. 101 Accordingly I propose that the Court make the following order;

102 HULME J: Subject to the remarks which follow, I agree with the orders proposed by Wood CJ at CL and with his Honour's reasons. 103 Judge Christie's remark to the effect that the particular crime was not far removed from a worst case seems to have been directed to the offence itself rather than the Applicant's offending. If that be the correct interpretation of what his Honour said, I would not wish to be taken as agreeing with it. Although I do not need to decide the matter for the purposes of this appeal, when one adds to the conduct of the offenders in the course of the robbery itself, the fact that their object was the obtaining of a quantity - perhaps arsenal would be a better word - of firearms for sale to the criminal members of the community, there is much to be said for the view that the offence itself did fall into a worst category. 104 Secondly, although I am content to preserve for the Appellant the opportunity of again approaching this Court by refusing leave to appeal rather than dismissing the appeal itself, I would not wish that decision to be taken as any indication that, however light a sentence imposed on a co-offender may be, it would be appropriate on grounds of parity to reduce the sentence imposed on the Appellant. The crime was grave, his participation substantial, and there is much to be said for the view that any reduction in his sentence would not create a justifiable sense of grievance in him arising from a lack of parity with a sentence imposed on a co-offender but an injustice to the community appreciably greater than any feeling of grievance he might have through - see Ismunandar and Siregar [2002] NSWCCA 477; R v Doan [2002] NSWLR 115; Reardon (1996) 89 A Crim R 180; R v Steele (unreported, CCA, 17 April 1997). 105 In this connection Judge Christie seems to have made a number of findings which are at least arguably unduly favourable to the Appellant. For example, his Honour observed that he did not see the fact the Appellant was on a recognisance "as being a particularly serious aspect of the sentencing process on this particular occasion," also referring to it as a "marginal fact". Given that the recognisance had been imposed but 3 months prior to the subject offence, his Honour's remarks do not sit happily with the views which this Court has expressed on many occasions as to the aggravating nature of the commission of offences on conditional liberty. 106 His Honour also observed that "there are some circumstances in this particular case that take it a little, perhaps more than a little, above and beyond the guidelines enunciated by the Supreme Court in R v Henry". As Wood CJ at CL has pointed out, common to the subject offence and the characteristics of the offender referred to in R v Henry were the Applicant's youth, little by way of criminal record, weapons capable of killing or inflicting serious injury and a plea of guilty the significance of which was limited by a strong Crown case. However the circumstances of the offence were, in other respects, so far different from the offence contemplated in R v Henry that the assistance provided by that decision is very limited. Indeed, by comparison with the suggested 4 to 5 years head sentence indicated in R v Henry, there is a deal to be said for the view that the sentence here of 7½ years is unduly light. However, there is no Crown Appeal and I need not pursue that question. **********

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