REGINA v Fadde ASSAAD

Douar v R (2005) 159 A Crim R 154 Legge v R [2007] NSWCCA 244 R v Blackman and Walters [2001] NSWCCA 121 CASES CITED : R v Henry & Ors (1999) 46 NSWLR 346 R v Hernando (2002) 136 A Crim R 451 R v Zamagias [2002] NSWCCA 187 Yardley v Betts (1979) 22 SASR 108

PARTIES: REGINA (Applicant) Fadde ASSAAD (Respondent)

COUNSEL: P Miller (Applicant) N Steel (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Applicant) Kiki Kyriacou Lawyers (Respondent)

LOWER COURT FILE NUMBER(S): 2008/11/1465; 2008/11/1466

• 14 - IN THE COURT OF CRIMINAL APPEAL 2008/3845 2008/12244

McCLELLAN CJ at CL HIDDEN J McCALLUM J

14 JULY 2009 R v Fadde assaad JUDGMENT 1 McCLELLAN CJ at CL: I have had the benefit of reading the judgment of McCallum J in draft. Subject to the following remarks I agree with her Honour. 2 When sentencing the respondent the sentencing judge identified the fact that in the circumstances there was no alternative but to impose terms of imprisonment. His Honour then said "the question before me is should these terms of imprisonment be served by periodic detention." He made this statement before articulating the sentence which he proposed to impose. By so doing his Honour did not disclose in his reasoning process that he had complied with the requirements of the law when imposing a term of imprisonment to be served by periodic detention: see Douar v The Queen [2005] NSWCCA 455; 159 A Crim R 154. The Crown submitted that accordingly his Honour was in error. 3 This Court has said that a failure to disclose a reasoning process in accordance with the three step process described by Johnson J in Douar at [69] ff does not invariably disclose error, compliance may be inferred. However, I do not believe that conclusion is available in the present case. After expressing the conclusion that a term of imprisonment was required, his Honour immediately proceeded to consider what he identified as "the question"; whether the sentence should be served by periodic detention. At that point in the reasoning process "the question" which had to be considered was the length of the prison term and only then, if that term permitted, could periodic detention be considered. 4 If as McCallum J concludes his Honour had already determined the sentence but preferred not to disclose it until concluding his remarks, his Honour should have indicated that he had determined to impose a sentence of less than three years making periodic detention an available option. 5 McCallum J has concluded that the sentences which his Honour imposed were manifestly inadequate. Whether assessed by reference to the guideline in Henry or otherwise the terms of the sentences were excessively lenient. When those sentences are to be served by period detention that leniency was further compounded. But for the efforts which the respondent has made to rehabilitate himself I would have intervened to impose a greater sentence. However, in the exceptional circumstances of the present case I agree the Crown appeal should be dismissed. 6 HIDDEN J: I agree with McCallum J. 7 McCALLUM J: This is a Crown appeal against the sentences pronounced by Armitage ADCJ on 17 April 2009 after the respondent pleaded guilty to one count of robbery in company, one count of armed robbery and one count of aggravated taking and driving a motor vehicle. 8 The first in time was the offence of robbery in company contrary to s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period in respect of that offence. The facts of the offence were that, at about 10.00am on 12 April 2006, the respondent went to a jewellery store in Auburn in the company of another male and a female. They began looking at engagement rings and the female tried some of them on before all three left the store. They returned about an hour later. At that time, there was a female customer in the store. The respondent's male companion produced a knife and the customer tried to leave but was prevented from doing so by the respondent. 9 The respondent told the female customer to move into the back section of the store. She said "I've got to pick my Mum up from the surgery" to which the respondent replied "That's okay, we won't be long." He took her to an area at the back of the store where he tied her hands behind her back with a cable. The respondent's companion tied the hands of the store owners. The respondent's companion then handed him the knife and went to the front of the store. One of the owners attempted to stand up and the respondent told him to sit down or he would kill him. 10 The respondent continued guarding the owners and the female customer while the male co-offender emptied the safe. The co-offender then returned to the back area and told the respondent to take the customer's wallet. He demanded the wallet and she responded that it was her mother's. The respondent and his co-offenders then left the store. 11 Police were called to the scene of the offence. They seized a number of items from which they obtained DNA samples, which identified the respondent as one of the offenders. He was arrested and charged with the offence on 6 March 2008 while he was serving a sentence of periodic detention in respect of an offence committed in late 2005. 12 The other two counts on the indictment related to two offences committed on 24 April 2006. The first was an offence of armed robbery contrary to s 97(1) of the Crimes Act, which carries the same penalty as the robbery in company and has no standard non-parole period. The second was an offence of aggravated taking and driving a motor vehicle contrary to s 154C (2) of the Crimes Act, which carries a maximum penalty of 14 years. There is a standard non-parole period of 5 years in respect of that offence. 13 Those offences were committed against a taxi driver who was flagged down by the respondent and another man at Miller. The respondent directed the driver to a cul-de-sac in Bass Hill where the co-offender placed his arm around the driver's seat and held a knife at his neck. The co-offender said to the driver "Don't move, give me your wallet". The driver declared that he did not care about the money and handed approximately $180.00 in cash to the respondent. 14 The respondent then searched the driver's pockets and told the driver to give them his key card and pin number. The driver responded that he did not have a key card. The respondent then produced a knife and told the driver to get out of the taxi, which he did. The co-offender then got into the driver's seat and drove away. The taxi was later recovered undamaged. The respondent was identified by the driver from photographs. He was arrested and charged with those offences on 29 November 2007, also while he was serving the earlier sentence. 15 The respondent pleaded guilty to the offences involving the taxi driver on 25 August 2008, which was the date fixed for trial of those offences. He pleaded guilty to the offence in respect of the jewellery store on 9 October 2008.

The sentencing proceedings 16 The sentence hearing commenced in March 2009. The respondent had completed his earlier sentence of periodic detention about a month earlier. On 17 April 2009, he was sentenced for the offence of robbery in company at the jewellery store to imprisonment with a non-parole period of 1 year and 3 months and a balance of term of 1 year and 3 months, to be served by way of periodic detention. An offence of assault with intent to rob in respect of the female customer in the store was taken into account on a Form 1. 17 In respect of the two offences against the taxi driver, the respondent was sentenced to concurrent terms of imprisonment with a non-parole period of 1 year and 3 months (accumulated by six months on the sentence for the robbery in company) and a balance of term of 1 year and 3 months, also to be served by way of periodic detention. Accordingly, the total effective sentence was a full term of 3 years with a non-parole period of 1 year and 9 months to be served by way of periodic detention. 18 The respondent was aged 20 when the offences were committed and 23 when he was sentenced. At the time he was sentenced he had a prior conviction for committing a serious indictable offence in a dwelling (inflicting actual bodily harm) for which he had been sentenced to periodic detention for 3 years with a non-parole period of 18 months commencing on 15 June 2007. Apart from that matter he had no serious prior convictions. 19 The respondent gave evidence at the sentencing hearing as to his mental and physical state at the time the offences were committed. The sentencing Judge recorded that he accepted that evidence without reservation. The evidence was to the effect that, at the time he committed the offences, the respondent was addicted to cocaine and steroids and was also taking anti-depressants which he "wasn't taking properly." At that time, the respondent had separated from his partner (who is now his wife) although she was pregnant with his child. The child was born shortly after the present offences were committed. About a month after the child was born, the respondent decided to overcome his drug addiction and get his life back in order for the sake of his family. 20 The sentencing Judge also heard evidence from the respondent's wife, whom he found to be an intelligent and honest witness. Her evidence was to the same effect as that of the respondent. 21 The sentencing Judge also had regard to a report from a psychiatrist, Dr Pennington, who has been treating the respondent since January 2008 when he was referred to her by his general practitioner, who had become concerned about the respondent's symptoms of depression. Since that referral, the respondent had seen Dr Pennington every one or two weeks. 22 Dr Pennington noted that the respondent had a background of a dysfunctional upbringing with an abusive father. She stated that he presents with a chronic low mood, thoughts of deliberate self harm with associated irritability and social withdrawal. She also described psychotic symptoms. She attributed his mental illness and criminal behaviour to "multiple losses and dramatic events since early childhood" including the fact that, when he was five, he had witnessed his four year old brother being hit by a car and killed. She also referred to "chronic and severe physical and emotional abuse throughout his childhood." 23 Dr Pennington gave a guarded prognosis in light of the respondent's chronic and dysfunctional upbringing. However, she stated that he is "insightful, intelligent and motivated" and that his consistent attendance and compliance with treatment were strong indicators of a positive outcome. Dr Pennington expressed the opinion that the respondent's prognosis would be affected by the outcome of the sentence proceedings and stated "a period of incarceration and exposure to violent criminal environment, separate from his children, is highly likely to reinforce his negative behaviours". 24 The sentencing Judge also had regard to a report of a psychologist, Dr Watson-Munro, who recorded the respondent's strong resolve not to relapse into illicit drug use and stated that the respondent is "supported by his wife and has a strong sense of responsibility for his young family". 25 There was also before the Court a report of a Probation and Parole officer, Mr Hansard, who described the respondent as "respectful and co-operative". He referred with optimism to the respondent's abstinence from illicit substances and his apparent motivation to address his psychological problems. He described the respondent's wife as a "pro-social influence" for the respondent. 26 Finally, the sentencing Judge had regard to a reference from the respondent's employer, who described himself as also being a family friend. He stated that the respondent had "come a long way since this bad year in his life". 27 The sentencing Judge noted that the offences were very serious and that any penalty other than full time imprisonment was not appropriate except in most exceptional circumstances. His Honour accepted a submission put on behalf of the respondent that exceptional circumstances existed owing to a combination of the following factors: (a) The fact that the respondent was aged 20 at the time he committed the offences and was 23 when sentenced. (b) That he became involved in the offences because he was addicted to illicit drugs and desperate for money to support that habit but also because he had acquired that addiction in circumstances where he was suffering from untreated post traumatic stress disorder and intermittent psychotic symptoms. (c) The fact that he gave up drugs entirely within about a month of committing the later offences. (d) The fact that he had remained drug free since that date and had been receiving regular psychiatric treatment. (e) The delay between the date of the offences and the date of sentencing and the fact that the respondent had made "remarkable progress towards complete rehabilitation" in that intervening period. (f) His Honour's finding, in light of the respondent's criminal record, that he had not "developed settled criminal habits". 28 The sentencing Judge recorded his view that, having regard to the objective seriousness of the offences, it would be inappropriate to suspend the sentences. He stated, however, that in view of the finding that there were very exceptional circumstances, particularly including the respondent's mental state and the very considerable steps he had taken towards rehabilitation in the intervening years, it was appropriate to impose a sentence to be served by way of periodic detention.

Failure first to determine the appropriate term 29 The Crown identified four grounds of appeal. It is convenient first to consider grounds 3 and 4 raised in the Crown's supplementary submissions. Ground 3 is that his Honour erred in law in failing to determine the appropriate term of imprisonment to be imposed before considering whether it should be served by way of periodic detention. This ground stems from the sentencing remarks at page 21, where the Judge said: "It is apparent that having regard to the objective seriousness of all three offences there is in this case no alternative to terms of imprisonment. The question for me is should those terms of imprisonment be served by way of periodic detention. In view of my finding that there are very exceptional circumstances, in particular the offender's mental health issues and the very considerable steps he has taken towards rehabilitation in the three years since he committed the offences, it is my opinion that they should be served by way of periodic detention. I am also of the view that the sentences for the offences of 24 April 2006 should be partially cumulative upon the sentence for the offence of 12 April 2006." 30 The Crown relies on the fact that the Judge had not, before that point in the remarks on sentence, identified the period of imprisonment that was appropriate for all or any of the offences. He submitted that that approach was not in accordance with the decisions of this Court in Douar v R (2005) 159 A Crim R 154 at [69]-[72] and R v Zamagias [2002] NSWCCA 187 at [23]-[28]. Those decisions establish that the proper approach entails three steps. 31 The first is to identify whether there are any alternatives to the imposition of a term of imprisonment. If not, the second step is for the Court to determine the appropriate term of imprisonment without regard to the manner in which the sentence is to be served. The third step, after the Court has identified the appropriate length of the term of imprisonment to be imposed, is to consider whether any alternative to full time imprisonment is available and appropriate. 32 In the present case, the Judge did not articulate his conclusion in respect of the second step (as to the appropriate term to be served) before he came to address the third step. Mr Steel submitted, however, that it does not follow that there was a departure from the correct approach. He submitted that the Judge was, rather, observing the practice of not revealing the length of the term of imprisonment until the point when sentence is formally passed at the conclusion of the statement of reasons. 33 That may well be the approach that the Judge took. A consequence, however, is that his Honour did not expose the three steps in which he was required to approach his task in accordance with the principles stated in Douar and Zamagias. I am not satisfied that the Judge did in fact fail to take the correct approach, but it would have been preferable in accordance with those principles if his Honour had articulated his conclusion as to the appropriate term before determining that there was an alternative to full time imprisonment.

34 The fourth ground, which is related to the third, is that his Honour erred in law in tailoring the length of the sentences imposed to enable him to order that they be served by way of periodic detention. 35 In respect of that ground, the Crown submitted that the term of the sentences imposed is "suggestive" that the Judge tailored the length of the terms so as to enable him to direct that they be served by way of periodic detention. The Crown relied on the exchange between the sentencing Judge and counsel for the respondent at pages 3 to 10 of the transcript of 9 April 2009. 36 This Court has repeatedly observed that the views of the sentencing Judge are to be gleaned from the remarks on sentence, not from exchanges with counsel during the sentencing hearing. I am not satisfied that ground 4 is established.

Was it open to the Judge to find exceptional circumstances? 37 The first ground of appeal is that his Honour erred by finding that there were exceptional circumstances justifying the imposition of sentences to be served by way of periodic detention. As noted by Mr Steel, the test in determining that ground is whether the finding was open to the sentencing Judge on the evidence before him. 38 The second ground is that the sentences were manifestly inadequate. Since the adequacy of the sentences is inextricably linked to the issue whether the respondent's circumstances were so exceptional as to justify directing that they be served by way of periodic detention, it is appropriate to consider both grounds together. 39 The Crown submitted that the evidence did not establish a sufficient connection between the offences and the respondent's mental health to warrant a finding of exceptional circumstances. That connection was, of course, only one of a number of factors relied upon by the Judge to support his finding of exceptional circumstances. In any event, in my view, it was plainly open on the evidence before the Judge to find, as he did at ROS 20.6, that the respondent's moral culpability was reduced on account of his mental state and that he was an inappropriate vehicle for general deterrence. 40 The Crown further submitted that there was no evidence before the Judge that a full time custodial sentence would "set the respondent backwards in terms of his mental state." That submission ignores the evidence of Dr Pennington referred to above, which directly supported the proposition that a period of full-time custody would have an adverse effect on the respondent's prognosis. 41 The Crown's submissions in support of ground 2 otherwise amount to a complaint as to the weight given to various matters by the sentencing Judge. I am not persuaded that the finding of exceptional circumstances was not open on the evidence before the sentencing Judge. 42 There can be no doubt, however, that the circumstances were not so exceptional as to warrant the extent of leniency afforded to the respondent. In my view, having regard to the objective seriousness of the offences, the sentences imposed were manifestly inadequate. As noted by the Crown, the sentences represented a significant departure from the guideline judgment in R v Henry & Ors (1999) 46 NSWLR 346. Further, I accept, as submitted by the Crown, that the objective circumstances of the present offences are more serious than those considered in the guideline judgment. 43 The Crown acknowledged that the guideline judgment is not a straightjacket but noted that it remained a benchmark and that the sentences imposed indicate that his Honour simply disregarded it. Mr Steel submitted on behalf of the respondent that the Judge did not disregard the guideline judgment, but sentenced the respondent on the basis that there were features in the respondent's case sufficiently unusual to warrant the extension of leniency. Mr Steel noted that it is an error to apply Henry as if it can only be departed from in exceptional circumstances: Legge v R [2007] NSWCCA 244 at [58]-[59] per Spigelman CJ. In that case, the Chief Justice observed that such an approach impermissibly confines the exercise of sentencing discretion. 44 It must be observed, however, that in Henry itself, the Chief Justice emphasised at [113] that the offence of armed robbery must carry a full time custodial sentence except in "the most exceptional circumstances". 45 Accepting that it was open to the Judge to find that there were exceptional circumstances in the case so as to warrant a measure of leniency, in my view the sentences imposed were manifestly inadequate for the offences committed. The circumstances relied upon by the Judge were not so exceptional as to justify a sentence other than a full time custodial sentence.

The residual discretion of the Court 46 Mr Steel submitted that this is a case in which, even if appellable error were established, the Court should nonetheless exercise its residual discretion not to interfere with the sentences imposed, citing R v Hernando (2002) 136 A Crim R 451. In that case, Heydon JA (as his Honour then was) stated the principle that, in order to succeed in an appeal against sentence under s 5D of the Criminal Appeal Act 1912, the Crown must not only establish appellable error in the sentencing Judge's discretionary decision but must also negate any reason why the residual discretion not to interfere should be exercised. 47 Mr Steel placed particular emphasis on the observations of Heydon JA at [18] as to the "cruel impact" on a respondent of a sentence which is so lenient that it reveals appellable error on its face. Mr Steel submitted that those comments apply with particular force in the present case, having regard to the fact that a sentence other than a full time custodial sentence was imposed at first instance and the fact that the respondent suffers from post traumatic stress disorder and chronic depression. Plainly, there is considerable force in the contention that a successful Crown appeal would have a particularly cruel impact on the respondent in the present case, although I think the remarks made by Heydon JA in that particular passage in Hernando were rather directed as a caution against erroneously lenient sentencing than to the issue of this Court's discretion not to intervene. 48 Nonetheless, there is a compelling reason for exercising the discretion in the present case, which is the undesirability of interrupting what appears to be a remarkable case of self-rehabilitation by a person who was addicted to illicit drugs. An additional factor is the delay between the commission of the offences and the time when the respondent was sentenced and the fact that his rehabilitation has been constantly good during that period. 49 The sentencing Judge accepted that the respondent had taken very considerable steps towards his own rehabilitation. His Honour appears to have accepted that the respondent had stopped taking illicit drugs altogether shortly after the offences were committed and that he had remained free of drugs since that time. The Judge also accepted that the respondent had made considerable progress in the treatment of his underlying psychiatric problems. 50 The evidence before this Court was to the effect that the respondent's rehabilitation has continued to progress well since the sentences were imposed. It could scarcely be doubted that to impose a full time custodial sentence at this point will jeopardise the progress that the respondent has made in that respect on his own initiative. He is relatively young and is at a point in his life where permanent rehabilitation appears to be a strong prospect. 51 The prospect of jeopardising the progress of an established case of exceptional rehabilitation by a young person is, in my view, a compelling reason for the exercise of the Court's residual discretion. As noted by Mr Steel, similar considerations were regarded as an appropriate basis for this Court to stay its hand in a Crown appeal in R v Blackman and Walters [2001] NSWCCA 121. In that case, Wood CJ at CL was of the view that the grounds of appeal were not made out but indicated in any event that "the enormous change in each respondent and the time which has passed" warranted an exercise of the discretion not to intervene.

52 I have reached the conclusion that this is an appropriate case for the exercise of the Court's discretion not to re-sentence the respondent, notwithstanding the manifest inadequacy of the sentences imposed. The order I propose is that the appeal be dismissed. **********

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