Regina v Chebat

LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/0319 FILE NUMBER(S) : LOWER COURT Ellis DCJ JUDICIAL OFFICER :

• 1 - IN THE COURT OF CRIMINAL APPEAL 60195/04

BELL J HOWIE J HISLOP J

28 June 2004 REGINA v MARK CHEBAT Judgment 1 BELL J: I agree with Hislop J. 2 HOWIE J: I agree with Hislop J. 3 HISLOP J: On 7 August 2003 the applicant pleaded guilty to one count of aggravated robbery contrary to the Crimes Act 1900 s 95(1). The maximum penalty for such offence is twenty years imprisonment. On 28 October 2003 Ellis DCJ sentenced the applicant to two years and six months imprisonment for that offence commencing on 28 October 2003 with a non-parole period of one year and three months. 4 His Honour recommended that the sentence be served in juvenile detention. This recommendation could not be carried out as the applicant was over the age of eighteen at the time of the offence. The recommendation was withdrawn on 30 October 2003. The applicant has served the sentence to date in adult gaols. 5 The applicant seeks leave to appeal against sentence. The written grounds of appeal assert: "1. The sentencing Judge applied a wrong principle, in that his Honour interpreted the applicable guideline judgment as meaning that any sentence other than full time imprisonment would have been erroneous.

On the hearing of the appeal an additional ground was advanced as a "fall back" position in case the filed grounds did not find favour with the Court. In essence the ground was that his Honour's approach to imposing the sentence in accordance with the Crimes (Sentencing Procedure) Act 1999 ("the Act") s 44 as it had been amended in 2002 had led to an increase in the term of the sentence by the finding of special circumstances rather than a reduction of the non-parole period.

6 The facts, as found by his Honour, were as follows: "… on 29 May 2003 at Parramatta, in the company of two other men, the offender and two other males approached the area in which the victim was speaking to two females. Shortly after the offender walked up to and approached the victim who was seated at a bench waiting for a lift, the offender stood with his right leg between the victim's legs with his knees nearly touching the bench upon which the victim was seated, and he indicated to the victim "I'm going to take your wallet". The offender then reached forward and took the victim by the throat with both hands, squeezing as he did so, the force of which cut off the air supply to the victim. Whilst doing that, he forced the victim backwards onto the seat, causing his head to strike the brick wall behind. Fearing for his life, the victim punched and kicked the defendant. He fought the offender and forced him off. When he did this, the other two males encircled the victim and began to punch the victim to the body and the head. It was then that one of the males took the victim's backpack from him. The offender came to the front of the victim and punched the victim once to the face. The victim was forced to the ground by tripping. Once on the ground, he was continually kicked to the torso and head area. He managed to stand up and hit one of the males. He was then taken from behind with his arms pinned and the offender came towards him again, but the victim managed to kick the offender away. After the offender did that he was thrown to the ground. He again was very fearful but stood and was hit to the head from behind by the offender and thrown onto the ground… The victim received a split to his lower lip that bled freely, teeth on the left side of his mouth were loose, his jaw was stiff and hard to move, his ribs on both sides of his torso were sore, both arms were sore from defending himself and his back was sore and stiff. The victim was approximately 170 centimetres tall and weighed a mere 60 kilograms. The offender standing before me certainly is a far larger young man than the victim."

The attack ceased only upon the intervention of police officers who chanced upon the scene. Ground One 7 His Honour held that the starting point for determining any sentence involving an offence of this type was the sentencing guideline in R v Henry (1999) 46 NSWLR 346 where the majority of the Court determined that when sentencing an offender for an offence involving characteristics similar to the present a full time sentence of between four to five years was warranted. It was appropriate for his Honour to take that as a starting point and I do not understand the contrary to be asserted. 8 It is clear that the imposition of a non-custodial sentence in a case within the Henry guideline is not excluded thereby though the imposition of such a sentence is confined to "exceptional cases" see Spigelman CJ in Henry at [210]. 9 The applicant has submitted that his Honour proceeded on the erroneous understanding that where the guideline judgment had application it was mandatory that a custodial sentence be imposed. 10 The applicant relied upon comments made in the judgment that there was "no option other than a sentence of full time custody". Those comments were made initially in the context of a discussion of general sentencing principles in relation to ss 3A and 21A of the Act and again immediately before the imposition of sentence. Those comments, read in their context, do not suggest to my mind that his Honour was under the misapprehension alleged, particularly as earlier in his judgment his Honour had stated the guideline "ought to be complied with unless there are reasons for deviating from it". His Honour was saying simply that in the circumstances of this case a sentence of full time custody was appropriate. 11 In my opinion the first ground of appeal fails.

Ground Two 12 His Honour found that there were reasons why the guideline should be departed from in this case. Those reasons, shortly stated, were that the applicant was young (date of birth 8 September 1984); had a somewhat dislocated upbringing; his relationship with his father had been problematic; he had completed his schooling attending classes regularly and posing no disciplinary problems; he was in permanent employment; he was of prior good character and had no prior convictions; he had shown remorse; there were good prospects of rehabilitation; he had pleaded guilty at the first opportunity; he had been involved in a motor accident in April 2002 in which he had suffered significant head injuries. 13 The submissions for the applicant focussed upon the last matter, it being accepted, as I understand it, that, but for this factor, it could not be contended the case was "exceptional". 14 As to the injuries in the motor accident his Honour made extensive reference to a treating doctor's report. His Honour stated inter alia: "… it may be said that the significant brain trauma suffered by the offender may reduce the significance of general deterrence in the sense that that injury has certainly made him more susceptible to both anger and to being led by others, and to reduction of his ability to control angry responses or spontaneous outbursts" and "… perhaps he did not have a full appreciation of his actions and there is no doubt that his medical condition may well have contributed to his inability to think rationally and to control his impulses". 15 The sentencing Judge gave due weight to all of these considerations in determining the sentence which he imposed. The sentence reflects the appropriate punishment with regard to the objective criminality involved, (i.e. a cowardly attack of which the applicant was the instigator upon an innocent victim causing the victim actual physical injury which attack came to an end only upon the fortuitous arrival of the police) balanced against the personal circumstances of the applicant.

16 In Whittaker v The King (1928) 41 CLR 230 at 249 Isaacs J said: "a decision of the primary Judge: "must… be regarded as prima facie correct, and, in order that it should be displaced, it must be shown, … that it is "not merely (excessive), but manifestly so, because the learned Judge in imposing it either proceeded upon wrong principles, or undervalued or overestimated some of the material features of the evidence". 17 In R v Tate (1979) 46 FLR 386 at 388 it was held: " an appellant Court does not interfere with the 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 in acting on a wrong principle, or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing Judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error". 18 In my opinion the sentence imposed by his Honour was well open to him on the evidence and no error has been demonstrated in that regard. In my opinion the second ground of appeal fails. Ground Three 19 The 2002 amendments to the Act have application in this case. 20 Section 44 of the Act, as amended, provides: "(1) When sentencing an offender to imprisonment for an offence, the Court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one third of the non-parole period for the sentence, unless the Court decides that there are special circumstances for it being more (in which case the Court must make a record of its reasons for that decision)." 21 In the course of his remarks his Honour indicated that he had found that there were special circumstances for the purposes of s 44 of the Act and stated: "I am required by the Act to fix a non-parole period, and thereafter to fix an additional period, that additional period is fixed as a percentage of the non parole period, unless special circumstances exist justifying a longer than statutory period of rehabilitation." 22 The argument advanced on behalf of the applicant is that this passage reveals that his Honour thought that the section required him to fix the non-parole period and then to consider whether there were special circumstances in order to determine whether to increase the "additional period" for the purposes of the applicant's rehabilitation. Reference was made to the decision of this Court in R v Way [2004] NSWCCA 131 and that part of the Court's judgment considering the role of special circumstances under s 44, in particular the following: "111 The view that was taken in R v Moffit (1990) 20 NSWLR 114 in relation to the former s 5 of the Sentencing Act did not require the sentencing judge to first determine a minimum term, which was thereafter immutable, notwithstanding a subsequent finding of special circumstances. In substance, the section specifies the sequence in which the sentence was to be set, focussing upon the period which was considered appropriate to be served by way of a minimum period of actual imprisonment, followed by the period for a potential supervised release on parole. 112 While there are separate considerations involved for s 44(2) of the Act, they need not be regarded as involving a two-step or sequential process since, as Spigelman CJ pointed out in R v Hampton (1998) 44 NSWLR 729, the relevant steps can be taken simultaneously." 23 It is plain that his Honour was simply indicating in terms of s 44 how he was required to impose the sentence and not indicating the manner in which he was to determine how the sentence was to be derived. The applicant's submission carries with it the inference that the Judge believed that the section required him to increase a sentence for the purposes of accommodating the applicant's rehabilitation by the finding of special circumstances. Such a proposition is so inconsistent with general sentencing theory and with the interpretation of a similarly worded provision in the former Sentencing Act that it should not be attributed to a sentencing judge without it being overwhelmingly apparent that this was the approach adopted. 24 In any event the sentence imposed clearly proves, if proof is required, that his Honour did not approach his sentencing task in that way. The non-parole period fixed could not have been considered as appropriate unless his Honour had reduced it by finding of special circumstances to provide the applicant with a longer period on parole for the benefit of his rehabilitation.

Conclusion 25 I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed.

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