REGINA v. AVANESS [2002] NSWCCA 230

MONDAY 17 JUNE 2002 REGINA v. NARBEH AVANESS Judgment 1 GREG JAMES, J: This is an application for leave to appeal against sentences imposed upon the applicant in the District Court of New South Wales in consequence of he, in that court, having confirmed his pleas of guilty, originally made in the Local Court, to two offences under s.97 of the Crimes Act 1900 of robbery in company. He had been committed in the local court for sentence in the District Court pursuant to s.51A of the Justices Act 1902. 2 The two offences were committed on 23 May 2001 at Frenchs Forest when one victim was robbed of certain property: a mobile phone, some cash, a driver's licence and some other personal cards. Later that day, another victim was robbed of some $30 in cash by the same three assailants who had participated in the first offence. Those offences are regarded by the law as most serious. The maximum penalty prescribed in each case is imprisonment for 20 years. 3 The short facts of the offences as found by the trial judge were based upon the tender in evidence without objection - and apparently at the time of tender unchallenged - of a police-prepared facts sheet. 4 I now summarise what is contained in the remarks on sentence. The offender and two companions, (two juveniles at the time) at about 4.00 pm on 23 May 2001, were in a vehicle driven by another young person. They were all four friends and resided in areas that the trial judge referred to in the remarks on sentence. They drove to Frenchs Forest and were looking for young persons to rob. The first victim was walking home at about 4.10 pm that afternoon. The driver stopped the car near him, the applicant and the two co-offenders got out of the car and followed him. The driver drove around the block. The victim was approached by the applicant who said, "give me your money and give me your phone". The victim was pushed and spun around by one of the co-accused. He was then kicked and punched to the body and head a number of times and forced to the ground. One of the other young men who had left the car, took the victim's mobile phone and wallet from his jeans pocket. The victim was punched and kicked for between one and two minutes and afterwards came to his feet in a dazed state, returned home and contacted the police. He suffered soreness to the back of his head, soreness to his ribs and back, and his eyes and cheeks. 5 Shortly after this attack, the offenders, having resumed their cruise of the streets of Frenchs Forest at 4.25pm, located a 17 year old male teenager walking and the vehicle slowed. The applicant then followed the victim and said to him, "Mate, do you have 15 bucks?". The victim replied, "No, I've got no money", and fearing for his safety jumped over a fence and began to run away. However, his Honour recorded:- "He was grabbed by the offender, was pushed to the ground and the offender then jumped on to him. The victim was punched between seven and 12 times to the head while pleading, 'take the money. Just don't take my wallet'". 6 The co-offenders began to search through the victim's pocket. He was asked for a phone. He was lying face down on the ground and was told not to turn around. When he turned his head slightly he was punched to the left side of his head. His pockets were gone through and his wallet was eventually thrown back towards him with another statement, "don't turn around". After the car and the offenders had driven away, the victim found his father who reported the matter to police. 7 The car was seen still driving in Frenchs Road, Frenchs Forest shortly after the second robbery. It was stopped by police. The four occupants were arrested, and found wedged in a rear passenger seat was the mobile phone belonging to the first victim. 8 When the applicant was taken to the Manly Police Station he declined to be interviewed and declined to participate in an identification parade but was videoed so that a record could be made of his appearance at the time. The other offenders were also videoed for that purpose. 9 The second victim said that as a result of the attack upon him, the back of his head was swollen, he had a lump and cuts to the front of his head, and a swollen right index finger and had a terrible headache. Not surprisingly the trial judge was not sure that his bare recital of the events adequately conveyed the feeling of terror that both of the victims must have felt at the unprovoked assaults upon them. 10 On the basis of these facts, the trial judge concluded that the two crimes were very serious indeed, marked as they were by considerable violence to young victims who were simply walking along, minding their own business and chosen by the offenders at random. The trial judge referred to the seriousness with which the law regards the conduct of persons who attack, beat and rob others in packs, choosing their victims at random, and referred to the necessity that severe sentences be imposed. The trial judge equated the vulnerability of these victims to the vulnerable shopkeeper or taxi driver victims referred to in the decision of CCA in Regina v. Henry & Ors (1999) 46 NSWLR 346, a guideline judgment. 11 His Honour adverted to the considerable degree of actual violence involved in these offences when having regard to the profile of the offender referred to in Henry (supra) and the range of sentences there suggested by the guidelines. 12 The trial judge, having adverted to the applicant's subjective circumstances which were established by a pre-sentence report, his own evidence, and the evidence of his mother, and also the report from a family therapist, adverted also to the plea of guilty for which the applicant received a significant discount; his youth, it only being a few months after his 18th birthday when he committed the offences; and found special circumstances, in particular, because of the applicant's need for continued counselling over an extended period to deal with his own personal anger management issues and referring to matters indicated in the pre-sentence report. His Honour referred to this sentence as being the first time the applicant would serve in a gaol. 13 His Honour sentenced the applicant to concurrent sentences of four years imprisonment with a non-parole period of two years, directing release on expiration of the non-parole period on condition the applicant submits to the supervision of the Probation and Parole Service and obeys their directions, particularly concerning the anger management course and other such relevant programmes as recommended. His Honour had said, when enunciating his reason for taking that course, that he had taken into account the fact that the applicant was just short of his 18th birthday, and were it not for that fact, his Honour would have been minded to consider an appropriate starting point for calculating the relevant sentences as a sentence of imprisonment for six years in each case. 14 Before us it is contended that his Honour erred in a number of ways. Firstly, that his Honour failed to have regard to the evidence that the applicant gave before him concerning the role the applicant had performed in the second robbery. The applicant had admitted speaking to the first victim and demanding his property. He denied, however, speaking to the second victim and demanding his property. He contended that one of the co-accused had spoken to him and that upon being spoken to, the victim turned and ran, and more or less trapped himself down the hill; that the other boys had pursued him, were on top of him and were fighting with him. It was one of the other boys that had taken the property. The applicant had said, "I didn't touch the bloke". The applicant had confirmed that in cross-examination. 15 It was contended that notwithstanding counsel before the trial judge did not take explicit issue with the statement of facts, there being that evidence before the trial judge, it was incumbent upon his Honour to reject what was in the statement of facts and to accept the account given in evidence by the applicant. It is notable that apparently it was not sought that the victim be cross-examined, although the victim's statement was tendered and appeared to found the inference that the offender's conduct was as set out in the statement of facts if he was otherwise identified. 16 However, as I have said, the applicant did not give a record of interview or attend an identification parade. It is notable that there appeared to be no necessity in the court below for the video of his appearance to which I have referred to be tendered in evidence as being capable of establishing what the assailant in the second offence wore and thereby enabling the applicant's contention to be tested by what was contained in the victim's statement concerning the clothing of the men and the roles that they performed when he was attacked. 17 In my view, the ground of criticism of the learned trial judge's finding is not made out, but even if it had been, it does not appear to me that considering the evidence given by the applicant, that he, in conjunction with the other three, sought to pick out victims at random to assault in this way and that all were prepared to accept complicity in this manner of attack would have meant that there was much by way of mitigation even if his evidence was accepted and certainly not any mitigation to be found in his standing by while others with whom he had linked himself in purpose, embarked upon this conduct. 18 In my view, there is no such matter by way of error of law as would warrant any interference with the trial judge's conclusions arising from what has been put in support of this ground, and in that regard, and in particular in regard to certain of the other criticisms, they being that the sentencing judge failed to give sufficient weight to the applicant's attempts at rehabilitation and to various subjective factors. I reiterate, what this court has often said, that what one is concerned with in applications for leave to appeal against sentence is whether or not some such error as the High Court adverted to in House v. The King (1936) 55 CLR 499 is disclosed, so that one might conclude the sentencing discretion miscarried. Normally no such error is likely to be found in the assertion that the trial judge merely failed to give sufficient weight to a relevant matter, and I am of the view that in respect of these matters, no such error can be found here. 19 It was also contended that the trial judge erred in failing to give a sufficient discount in respect of the applicant's early plea of guilty. The trial judge adverted to the criteria set out in Henry (supra). One of the matters there referred to is a late plea of guilty. However in this case, the trial judge said:- "I take into account the offender's plea of guilty. I propose to give him a significant discount for his plea of guilty. Even though the Crown seems to have had quite a good case against him, it seems that the victims were in position to identify him and he was found as a passenger in the vehicle, as I have said, where the first victim's mobile phone was found. I propose to give him a significant discount for his plea of guilty, notwithstanding, the recent remarks of the High Court in The Queen v Cameron ." 20 That passage precedes the remarks made by his Honour to which I have referred concerning the relevance of the youth of the offender to his Honour's starting point for calculating the sentences at a sentence in each case of imprisonment for six years. It is conceded by Mr. Glennon, who has appeared for the applicant and has said on his behalf all that could be said, that the law does not require there to be an enunciation of a precise arithmetical kind of the degree of discount for the plea of guilty. 21 Section 22 of the Crimes (Sentencing Procedure) Act 1999 merely requires that the court must take the fact of the plea into account. The court may, accordingly, impose a lesser penalty than would otherwise have imposed. If it does not, the court is required under s.22(2) to indicate to an offender and make a record of, its reasons for not imposing a lesser penalty. It has been said that there is a necessity that there be a discernible reflection of the benefit flowing to an offender who does plead guilty, thus demonstrating that there has been the application of legislative intent: Attorney General's Application (No 1); Regina v. Ponfield (1999) 48 NSWLR 327; Regina v Thomson [2000] 49 NSWLR 383. This court encouraged judges to quantify the effect of the plea on the sentence as far as those judges might believe it appropriate to do so, and to enunciate the factors to which the plea of guilty or the quantification of the plea of guilty had regard notably, of course, to the timing of the plea. 22 In Thomson (supra) reference was made to the utilitarian value of the plea being generally assessed in the range of 10 to 25% with reference particularly to its timing. In The Queen v. Cameron [2002] HCA at 6, it was pointed out that such a plea should appropriately be regarded not by reference to the utilitarian value, but with reference to its evidencing a willingness to facilitate the course of justice. However, that decision has been distinguished in relation to State offences by this court in Queen v. Sharma [2002] NSWCCA 142 which discriminates between matters of objective utility and matters which are subjective to the offender. 23 On an analysis of what the trial judge has said here, I do not see in the light of these cases that the trial judge has fallen into any error in concluding, as he did, that he would give a significant discount for the plea of guilty in the circumstances in which it was entered without expressing the amount of discount more precisely. Having regard to the offender's age and the plea, it is entirely apparent that he has given a significant discount so as to produce the sentence, which was in fact passed. I do not see that having regard to the guideline in Henry (supra) and having regard to the process of reasoning the trial judge undertook, nor in the context of the sentencing statistics that were provided to us, that the trial judge started the sentence calculations too high, particularly having regard to these four offenders deliberately cruising the street of a Sydney suburb determined to commit multiple offences punishable each by such a high maximum. 24 The submissions originally made to us were supplemented by an additional submission that the trial judge had erred in failing to give consideration to the imposition of either a community service order or periodic detention. These matters were raised in the pre-sentence report before his Honour. They were referred to also in the original submissions filed in this court but in the context of the applicant having put forward matters that supported the prospect of successful rehabilitation and that his Honour, the trial judge, had found the applicant had, since his arrest, "made some real efforts towards his own rehabilitation". 25 The judgment of the CCA in Henry (supra) makes it quite clear that in respect to the offences to which that judgment is applicable - that is armed robbery - it will only be in exceptional circumstances where other than a full time sentence of custody is appropriate. In my view, those remarks apply equally to the offence which is treated by the Crimes Act 1900 as akin to armed robbery, robbery in company. Thus, one would expect that in the event that the discretion to impose some sentence different in nature to that of full time custody were to be successfully invoked before the trial judge, that those exceptional features would be clearly delineated in evidence. 26 Here it is said that such features can be found in the prior good record and the prospects of rehabilitation. Nonetheless, the evaluation of those matters and the appropriateness of the sentence to be selected, both in nature and extent, is a matter for the exercise of the discretion of the trial judge. It is only where that exercise of discretion is in error of law or principle, or is manifestly unreasonable that the court is empowered to intervene applying the principles in House (supra). 27 The general sentencing principles the court must apply are now enunciated in s.21 of the Crimes (Sentencing Procedure) Act 1999. They include a number of matters in addition to the individual prospects of rehabilitation. Regard must be had to them. Here the sentence imposed at first instance reflects them. 28 The trial judge, in the exercise of discretion and in balancing the application of those matters, was of the view - in my view appropriately - that deterrence and denunciation had important roles to play in the sentences and in that regard passed the sentences that he did. But when he had regard to special circumstances, what he sought to do was to limit the impact of what otherwise would have been an appropriate sentences for the subjective considerations appropriate to the offender and his prospect of rehabilitation. I consider that in that regard no criticism can be made of the non-parole period as being inappropriate. 29 I therefore conclude that the matter having been fully argued, leave to appeal should be granted but that in the upshot, the decision of the learned trial judge is not one to which s.6(3) of the Criminal Appeal Act 1912 applies. I cannot conclude that some other sentence warranted in law should have been passed. I would therefore propose that the appeal be dismissed. 30 SMART, AJ: I agree. 31 GREG JAMES, J: The orders will be therefore as I have proposed. **********

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