Regina v Amani SUAALII

CATCHWORDS: Criminal law - Sentencing - Crimes (Sentencing Procedure) Act 1999 s21A - Special circumstances - Sentence manifestly excessive.

Crimes Act 1900 - s 95(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 21A Security Industry Act 1997 - ss 7, 15 and 16

R v Foster (1995) 78 A Crim R 517 R v Holder (1983) 3 NSWLR 245 R v Simpson (2001) 53 NSWLR 704 CASES CITED: R v Tait (1979) 46 FLR 386 at 388 R v Tobar [2004] NSWCCA 391 Whittaker v The King (1928) 41 CLR 230 R v Wickham [2004] NSWCCA 193

Appellant - Amani Suaalii PARTIES: Crown - Regina

Mr CJ Smith - Appellant COUNSEL: Mr DC Frearson SC - Crown

SE O'Connor (Legal Aid Commission) - Appellant SOLICITORS: S Kavanagh (Director of Public Prosecutions) - Crown

• 1 - IN THE COURT OF CRIMINAL APPEAL 2004/3174 CCAP

JAMES J HISLOP J HALL J

9 June 2005 Regina v Amani SUAALII Judgment 1 JAMES J: I agree with Hislop J. 2 HISLOP J: The applicant pleaded guilty to the offence of robbery in circumstances of aggravation contrary to the Crimes Act 1900 s 95(1). The maximum penalty for such an offence is 20 years imprisonment. 3 On 11 June 2004 the applicant was sentenced for that offence in the District Court to imprisonment for a non-parole period of 6 years and 6 months, commencing on 2 September 2003 with the balance of the sentence of 2 years and 6 months to expire on 1 September 2012. 4 The applicant has sought leave to appeal against that sentence. The grounds of appeal are: 1. The sentencing judge erred by taking into account as aggravating factors that the offence involved the actual or threatened use of violence, and that the offender abused a position of trust or authority in relation to the victim. 2. The sentencing judge erred in not taking into account the finding of special circumstances in determining the non-parole period. 3. The sentence is manifestly excessive. 5 The facts of the offence, as stated by the sentencing judge in his Remarks on Sentence, were: The offender together with a co-offender Mauai and Darren Certoma were high school friends and associates. Each obtained security guard licences and worked in the security industry at various licensed premises throughout Sydney. In March 2003, the offender Mauai and Certoma met at the Palms Hotel, Chullora. At this time, Suaalii indicated that he owed money and wished to commit a robbery to obtain funds to pay debts.

Mauai and Certoma, together with the offender discussed the licensed premises at which they had previously worked and decided to commit a robbery at the Family Inn Hotel at Rydalmere. This hotel was apparently chosen because it had no video surveillance. Mauai and Certoma had previously worked there as security guards. A plan of the layout of the Family Inn Hotel was drawn up and a plan devised.

Certoma informed the offender and Mauai that the only staff working there would be likely to be the bar manager, Ben Hough and possibly his wife, Colleen Thornburn who at the time was pregnant. The robbery was planned to be committed on the Saturday morning because Suaalii finished his shift as a security guard early on the Friday night, and then picked Mauai up before going to the Family Inn Hotel. It was also likely that Certoma would be working on the Friday night. On 5 April 2003 at about 3.20am, the Family Inn Hotel had been closed, and Certoma was the only security guard working there. Ben Hough finished removing all the money from the poker machines and Colleen Thornburn was cleaning up the tables. The 2 offenders, Mauai and Suaalii gained entrance to the Family Hotel through an unlocked door. Each was armed with a knife, carried duct tape and wore gloves and balaclavas. The offender had a 23 centimetre hunting style knife, and Mauai had a 13 centimetre solid throwing knife. After they gained entry, Mauai and Suaalii approached Hough and Certoma who was standing inside the Family Inn Hotel, removing money from the poker machines. These offenders took Certoma, Thornburn and Hough to the main bar area, made them lie on the ground, brandishing their knives as they did so. The victims cooperated. The offender and Mauai asked who the manager was and Hough identified himself. He was taken to the main safe in the hotel, he opened it at their request and a silent alarm was triggered as a result. Once inside the safe, the offender removed about $31, 500 and placed it in a sports bag. Both the offenders then tied up the victims, including Colleen Thornburn, who was at the time, six months pregnant and concerned about her unborn child. The offenders shortly thereafter left the hotel. 6 His Honour, in his Remarks on Sentence, quoted from the statement of Mr Hough, as follows: As we were lying face down on the floor, they put my hands behind my back and put duct tape around them. They also put duct tape around my ankles. As we were being taped up I heard one of them call the other 'Isaac' on two occasions. They were saying things like, 'there is a bomb on the door if you move within the next 15 minutes the bomb is going to go off. There is also a bomb in the hotel. We are going to be watching you from the hotel, nobody move'. 7 His Honour also referred to the evidence of Ms Thornburn that she was scared that she was going to be struck in the stomach and might lose her baby and that she was afraid they were going to hurt her husband. 8 The applicant was born on 10 November 1982 in Samoa. He had no prior convictions, though subsequent to the subject offence he was sentenced to imprisonment for 6 months for an assault occasioning actual bodily harm, which offence had occurred prior to the robbery.

Ground One - The sentencing judge erred by taking into account as aggravating factors that the offence involved the actual or threatened use of violence, and that the offender abused a position of trust or authority in relation to the victim. 9 The Crimes (Sentencing Procedure) Act 1999 ("the Act") s 21A provides relevantly: (1) In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) The aggravating factors to be taken into account in determining the appropriate sentence for an offence are (relevantly for present purposes) as follows: … (b) the offence involved the actual or threatened use of violence… (k) the offender abused a position of trust or authority in relation to the victim…

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

10 His Honour, in his Remarks on Sentence, said: …I have taken into account what is required for the Court to consider under s 21A of the Crimes (Sentencing Procedure) Act to determine the appropriate objective and subjective features of the offence, and also to determine, so far as s 21A(2) and (3) require, the aggravating and mitigating factors set out therein…. Under s 21A the aggravating and mitigating factors are set out, and authority does not require me to set out every aspect of that section, but I indicate the aggravating and mitigating factors that I specifically take into account as part of the sentencing process leading to the conclusion that I have reached as to the extent of the objective seriousness of the criminality in this case. Turning firstly to the aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act , I find the aggravating factors to be as follows: (b), (c), (e), (g), (i), (k), (l) and (m).

Section 21A(2)(b) 11 The indictment alleged that the applicant: …did rob Ben Hough of certain property…the property of the said Ben Hough, and at the time of the robbery deprived the said Ben Hough of his liberty.

12 In R v Foster (1995) 78 A Crim R 517 at 552 it was held: The essence of a robbery is that violence is done or threatened to the person of the owner or custodian who stands between the offender and the property stolen, in order to overcome that person's resistance and so to oblige him to part with the property; in other words, the victim must be compelled by force or fear to submit to the theft. 13 The applicant submitted that his Honour infringed the requirement of the concluding words of s 21A(2) by taking into account as an aggravating factor the fact that "the offence involved the actual or threatened use of violence" (s 21A(2)(b)) when these matters were elements of the offence. 14 In R v Wickham [2004] NSWCCA 193, Howie J (with whom the other members of the court agreed) said: [22] When a sentencing court is about to consider matters of aggravation or mitigation under s 21A it is important that it recognises the limits upon the use to be made of those factors. The first is that found in relation to factors of aggravation in s 21A(2) which, after listing a number of aggravating features, provides: The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. The effect and policy behind such a limitation is self-evident: there should be no double counting of aggravating features of an offence. 15 The context of the sentencing judge's reference to aggravating factor (2)(b) makes it clear his Honour took that factor into account pursuant to s 21A, contrary to the requirements of the concluding sentence in s 21A(2). However, the Remarks on Sentence otherwise do not suggest his Honour gave any additional or cumulative effect to this factor and the infringement, in my opinion, is no more than a technical error of little or no significance. Section 21A(2)(k) 16 The applicant submitted the sentencing judge erred in finding aggravating factor (2)(k) established, as such finding was not available to him on the facts of the case. 17 The applicant, Mauai and Certoma had each obtained security guard licences and were working in the security industry in licensed premises. Although the applicant had not worked at the Family Inn Hotel, Mauai had worked at those premises prior to the robbery, and Certoma was working there as a security guard at the time of the offence. All three discussed the licensed premises at which they had worked and decided to commit the robbery at the Family Inn Hotel as it had no video surveillance. A plan of the layout was drawn up and the knowledge of Certoma as to staffing levels at the relevant time was used. 18 The Security Industry Act 1997 ss 7, 15 and 16 provides a person must not carry on a security activity unless licensed under that Act and that an application for a licence must be refused if the applicant is not a fit and proper person to hold such a licence or if s/he has been convicted of, inter alia, an offence involving fraud, dishonesty and/or stealing, where the maximum penalty is imprisonment for 3 months or more, or robbery. 19 His Honour found the aggravating factor referred to in subsection (2)(k) established and said the applicant, Mauai and Certoma: Used the information and knowledge from the security industry in which they were involved. This was the use of information of a significant degree which, in my opinion, raised the level of its criminality substantially. 20 The applicant submitted there was no evidence to support a finding that the applicant was in a position of trust or authority to the victim as required by subsection (2)(k) as there was no relationship of employment or of any other description between the applicant and the victim. 21 The Crown submitted the meaning of subsection (2)(k) was wider than contended for by the applicant. Four situations may be distinguished:

a) Where the security guard was employed by the victim and used his position as such to facilitate the robbery. This, the Crown submitted, involved a clear abuse of a position of trust. The security guard was trusted to guard the victim's money, not to assist in its theft.

b) Where, as here, there was a joint criminal enterprise and one of the persons involved in that enterprise was a security guard employed by the victim who used his position to facilitate the robbery, the offender was liable for the actions of the employee, including any breach of trust.

c) Where, as here, the offender made use of knowledge as to the security measures in licensed premises which he had gained from employment in the security industry generally.

d) Where an offender made use of knowledge as to the security measures and procedures in the victim's premises which knowledge he had gained from employment in those premises on occasions prior to the time of the offence.

The Crown submitted that the second and third situations were applicable in this case. 22 In my opinion it is not necessary to determine the ambit of ss (2)(k) in this case. The matters which caused his Honour to categorise the situation as falling within subsection (2)(k) were objective factors which affected the relative seriousness of the offence, and which his Honour was entitled to take into account pursuant to s 21A(1)(c) if those matters were not appropriately categorised as within s 21A(2)(k). It is the underlying facts which are relevant, not the label which is attached to them. His Honour was well aware of the underlying facts which he took into account. In my opinion no relevant error has been demonstrated. Ground Two - The sentencing judge erred in not taking into account the finding of special circumstances in determining the non-parole period. 23 His Honour held: I find special circumstances. The special circumstances are based on the requirement for rehabilitation on release. This is the first time the offender has been in full time custody. This is a matter where he has some history of drug taking and needs rehabilitation from that in due course. As a result, I propose to alter the statutory ratio and impose a longer balance of sentence other than that provided for by s 44(2) of the Crimes (Sentencing Procedure) Act …. The sentence that I propose to impose is a non-parole period of six years and six months to commence 2 September 2003, with the offender being eligible for release at the end of that non-parole period, and to then impose a balance of sentence taking into account the alteration of sentence required by the finding of special circumstances of a further two years and six months. 24 The applicant submitted his Honour erred in that, having found special circumstances, he gave effect to that decision by increasing the balance of the term, rather than reducing the non-parole period in the context of the appropriate total term. 25 Notwithstanding the amendment to s 44 of the Act in 2002, the focus of sentencing remains upon the determination of the total term of the sentence, i.e. the total of the minimum term and the additional term. Thus, although s 44 requires the minimum term (non-parole period) first to be specified or pronounced, it does not require that that term be the first determined. In the event special circumstances are found, effect is given to that finding by a reduction of the minimum term, and not by an extension of the additional term - R v Tobar [2004] NSWCCA 391 [33] - [39]. 26 His Honour appears to have first determined the non-parole period and then imposed a balance of term which exceeded the statutory ratio of one third of that term, contrary to the principles in R v Tobar. I am satisfied that error in this regard has been demonstrated. Ground Three - The sentence is manifestly excessive. 27 His Honour's determination of sentence proceeded through a number of stages:

a) He first concluded, "… on the objective material available to the court" that this was a case which was above the mid-range of objective seriousness. He stated that that conclusion was based: … on the fact that the amount taken was significant, the planning was extensive, the manner in which it was carried out involved the binding of those persons who were there. They used the information and knowledge from the security industry in which they were involved. This was the use of information of a significant degree which, in my opinion, raises the level of its criminality substantially.

b) His Honour then referred to various matters, including the factors under s 21A of the Act which he took into account, that apart from the matter of assault the applicant was otherwise of good character and without previous criminal convictions, and that whether he was likely to re-offend depended upon his response to any rehabilitation activities put in place. He indicated he proposed to grant a 25% discount for the utilitarian value of the plea, and its indications, so far as they could be accepted, on remorse and contrition, but that little or no allowance should be made for assistance to authorities. He concluded: Having considered all those matters I have come to the view to which I have already indicated, namely that this was an offence of significance and above the mid-range of objective seriousness. This is so notwithstanding the previous good character of the offender.

c) His Honour then proceeded to "consider what would be an appropriate sentence having regard to all of those circumstances" and said: I have taken into account the fact that the offender has had a number of problems, which are set out in the Probation and Parole Service report in relation to his past, that he has been a drug taker.

d) He noted that he had earlier sentenced Mauai and that "it was not argued otherwise at the sentencing hearing that these two offenders should be approached on an equal basis and there is parity". He then pronounced sentence. 28 The applicant submitted the sentence was manifestly excessive because:

a) His Honour failed to have adequate regard to the youth of the applicant and the absence of any criminal record at the time of the offence; and

b) Judicial Commission statistics showed that in relation to all offenders sentenced to imprisonment for this offence, only 6 of 233 received a greater head sentence, and only 3 of 202 received a greater non-parole period. 29 The Crown submitted the sentence was an appropriate exercise of the sentencing discretion, but acknowledged it was "a very heavy sentence" and "perhaps at the top of the range".

30 "The decision of the primary judge must….be regarded as prima facie correct…" - Whittaker v The King (1928) 41 CLR 230 at 249, R v Holder (1983) 3 NSWLR 245 at 253 B-E. An appellate court does not interfere with a sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error - R v Tait (1979) 46 FLR 386 at 388, and then only if it forms the positive opinion that some other sentence is warranted in law and should have been passed - R v Simpson (2001) 53 NSWLR 704 at [79]. 31 Notwithstanding my reluctance to interfere with a sentence imposed by an experienced District Court judge, I have formed the positive opinion that some other sentence is warranted in law in this case and should have been passed. As was accepted by the parties, his Honour's starting point appears to have been in the order of 12 years imprisonment based upon purely objective materials which placed the offence above the mid-range of objective seriousness. However, having reached that conclusion, his Honour then, after considering a number of factors including matters subjective to the plaintiff, repeated his conclusion that the matter was above the mid-range of objective seriousness. He then presumably applied the 25% discount for the plea, leaving the 9 year total sentence ultimately imposed. 32 In my opinion, greater weight should have been given to the youth of the applicant, the fact that this was his first offence of this nature, that his record consisted of only one prior offence and that there were prospects of rehabilitation. The case, in my opinion, is not one which, when all circumstances are considered, should fall within the top 3% of sentences for an offence of this nature.

33 I acknowledge the offence was a serious one and was aggravated, inter alia, by the use of information obtained from work in the security industry and the binding of a pregnant woman. However, in my opinion, the sentence required at law was a non-parole period of 4 years 6 months, commencing on 2 September 2003 with the balance of sentence being 2 years 2 months. I have taken into account evidence tendered on appeal which indicates the applicant's motivation has improved and he is participating in educational and other courses and programmes whilst in gaol and the special circumstances identified by his Honour.

Orders 34 I propose the following orders: 1. Leave to appeal granted.

3. Sentence quashed and in lieu thereof, the applicant is sentenced to imprisonment for a non-parole period of 4 years 6 months, commencing on 2 September 2003 and expiring on 1 March 2008 with the balance of the sentence of 2 years and 2 months to commence on 2 March 2008 and expire on 1 May 2010. The earliest day on which the applicant will become eligible for release on parole is 1 March 2008. 35 HALL J: I agree with Hislop, J. **********

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