Regina v HALA aka BLACK

• 5 - IN THE COURT OF CRIMINAL APPEAL 2004/2119 (60142/04)

SPIGELMAN CJ BARR J HOEBEN J

23 September 2004 REGINA V Edi HALA aka BLACK Judgment 1 SPIGELMAN CJ: I agree with Barr J. 2 BARR J: This is an application for leave to appeal against a sentence imposed in the District Court. On 15 December 2003 the applicant, Edi HALA, also known as BLACK, appeared before Dodd DCJ and confirmed a plea of guilty first entered before a magistrate to a charge of aggravated robbery contrary to s 95 (1) of the Crimes Act 1900. His Honour imposed a term of imprisonment of three years and six months, commencing on 23 September 2003 and expiring on 22 March 2007 and set a non-parole period of 12 months to expire on 22 September 2004.

3 On 22 September 2003 two youths, Christopher Jobson, aged 16 years, and Christopher Browne, aged 17 years, were walking in a public street in Sans Souci. The applicant walked up to them. He was affected by alcohol. He was apparently nursing some resentment about a conversation he had had with Christopher Jobson or both of the youths on an earlier occasion. He asked Christopher Jobson whether he remembered that he had promised to catch up with him. It is not necessary to enquire into the cause of the applicant's resentment or to ask whether it was justified. Nothing justified what he then did. He swung his right arm and struck Christopher Jobson across the face with the back of his hand. He insulted him and challenged him to a fight. He said that people had been laughing at him all his life and that it was his turn to strike back. He asked for a cigarette. That was refused. He asked what was in Christopher Jobson's jacket and took out a mobile telephone. He said that he was just going to look at it, not steal it. Once he got hold of it he said that he was going to keep it. Christopher Jobson told the applicant that the telephone belonged to his friend, Christopher Browne. He told the applicant that he really needed the telephone back. The applicant responded by punching Christopher Browne in the face, knocking him backwards onto a fence. The conversation ended with the applicant threatening to stab the victims, though there was no suggestion that he was armed or that he intended to carry out his threat.

4 The applicant was 19 years old at the time. He had been convicted in April 2002 of unlawfully possessing a prescribed restricted substance and in December 2002 of behaving in an offensive manner in a public place. He had been fined for those offences. On 26 February 2003 he was dealt with in the local court for eight offences, namely two of having custody of stolen goods, one of entering a vehicle without the consent of the owner, two of common assault and one of assault occasioning actual bodily harm, one of having custody of a knife in a public place and one of entering enclosed lands without lawful excuse. On two of the charges he was given the benefit of twelve-month bonds, on another a six-month bond and on another a three-month bond. Fines were imposed on the remaining offences.

5 A pre-sentence report was put before the sentencing judge, showing that the applicant's stepfather had disrupted his childhood and abused him. His behaviour had always been difficult and he had been diagnosed with attention deficit disorder. He had been bought up principally by his grandparents. He had begun to drink alcohol when he was sixteen years old and had soon begun to abuse it. His consumption of alcohol continued until he was arrested on this charge and placed in custody. He accepted responsibility for his actions. Correction centre custodial staff saw him mainly as quiet but as reacting in a threatening manner if challenged. 6 The sentencing judge accepted that the commission of the crime was opportunistic. His Honour noted that neither of the victims had been badly hurt and that they had had no difficulty escaping. He regarded the offences as falling at the lower end of the range of seriousness of such offences. His Honour noted that the applicant's record did not assist him and that he had a tendency to use violence to take out his frustrations on others, particularly after he had been drinking. His Honour noted that the applicant had left school at seventeen and since then had been employed in various unskilled labouring positions, having commenced an apprenticeship at one time that unfortunately came to an end after the master closed his business. His Honour took into account the early plea of guilty and stated an intention to reduce the sentence by 25 per cent for its utilitarian value. His Honour also concluded that the applicant was contrite and that his prospects of rehabilitation were good, provided he solved his alcohol problems. These matters, his Honour said, produced a requirement for a longer than usual period of supervision on parole.

7 There were two grounds of appeal. The first was that the length of the sentence itself bespoke error. It was submitted that given the findings of the sentencing judge that the offence fell at the lower end of the range for such offences, the applicant's youth, contrition, his good prospects of rehabilitation and the discount to which he was entitled for the early plea of guilty, a head sentence of three and a half years was manifestly excessive. If there was a 25 per cent reduction for the utilitarian value for the plea of guilty the sentencing judge must have begun with a sentence of four and a half years. Although such a sentence would be appropriate in a case of armed robbery where a weapon was used - R v Henry (1999) 46 NSWLR 346 at - the circumstances of this offence were quite different. A sentence of four and a half years was manifestly excessive.

8 In my opinion that submission ought not to be accepted. It does not follow that because a sentence of four and a half years might be appropriate for an armed robbery, the starting point for a sentence of aggravated robbery, which this was, must be less. Aggravated robbery is a very serious offence. The parliament has prescribed a maximum sentence of twenty years' imprisonment. In deciding the proper sentence to impose, a sentencing judge is obliged to look at all the features of the case, those which aggravate criminality and those which mitigate, objective and subjective. One of the things a judge has to take into account is the prior criminal history of the person to be sentenced or the fact that that person has no prior criminal history. The range of sentences in R v Henry relied upon by the applicant are those which might be imposed on an offender who has no prior relevant history. That fact alone renders reference to that case of no assistance in this application, since the applicant had a recent and troublesome criminal history which significantly aggravated his criminality. The applicant was in breach of the two twelve-month bonds. Those were matters that concerned the sentencing judge, and rightly so.

9 In my opinion, considering all the matters his Honour was obliged to take into account, the resulting sentence fell within the range of his Honour's proper sentencing discretion. This ground of appeal has not been made good.

10 The second ground of appeal was that his Honour failed to comply with s 44 Crimes (Sentencing Procedure) Act in that he failed first to set a non-parole period for the sentence and then set the balance of the term.

11 Section 44 of the Crimes (Sentencing Procedure) Act was amended to prescribe a different manner of imposing sentences for offences committed after 1 February 2003. The old form of the section, which applied to all offences committed up to and including that day, required the court to set the term of the sentence and then to set a non-parole period. The non-parole period had to be not less than three quarters of the term of the sentence unless special circumstances justified its being less. His Honour sentenced the applicant as though under the section so formulated.

12 The present form of the section, which applies to the present offence, since it was committed after 1 February 2003, requires the court first to set a non-parole period and then the balance of the term of the sentence. The balance must not exceed one-third of the non-parole period unless special circumstances justify it.

13 There have been a number of cases in this court dealing with the sentencing of offenders under the old regime instead of the new and vice versa. It is established that the failure to comply with the appropriate formulation of s 44 constitutes error which may entitle this court to interfere with the resulting sentence.

14 Error has therefore been established. The question that arises is whether, if the court considers the sentence otherwise appropriate, it ought to dismiss the appeal. Section 6(3) Criminal Appeal Act 1912 is as follows - On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal .

15 It was submitted by counsel for the applicant that this court had held in R v KBM [2004] NSWCCA 123 that, once error of this kind is established, the court cannot, or ought not to apply the provisions of s6(3). The submission was based upon a misunderstanding of what the court said. Kirby J, with whom Tobias JA and Bell J agreed, said this at para 30 - The terms of the sentence made it clear that his Honour applied the new regime. The court in R v Mako [2004] NSWCCA 90 determined that to be an error. The crown therefore conceded error and that it was open to this court to intervene if it believed that a sentence other than that imposed was warranted in law (s6 (3) Criminal Appeal Act 1912) . (emphasis added) 16 In my opinion no lesser sentence than the one imposed by his Honour was warranted in law. Accordingly I would dismiss the appeal. 17 HOEBEN J: I agree with Barr J.

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