Regina v S Y & Anor

Regina v S Y & Anor - [2003] NSWCCA 291 - NSWCCA 2003 case summary — Zoe

[79]

63 It cannot however be accepted that the unusual or rare circumstances under discussion in the relevant portion of the paragraph of Wood CJ at CL's judgment applied in either of the situations pertaining to each respondent in these appeals other than in the most general way. The respondent S Y was admittedly the victim of severe torture at the age of 17 in Iran. Thereafter, he spent two years in the army during the Iran/Iraq war. He experienced difficulty in adjusting to life afterwards and had nightmares. He fled Iran in 1984 and spent seven years in Istanbul. In 1991 he came to Australia. The facts of the matter indicate however that although he was introduced to heroin while serving in the Iranian army he did not use the drug at all after this time nor while he was in Turkey for a period of seven years. He began using cannabis again only after he came to Australia and took up heroin again as late as 1994. It is plain that there was evidence to sustain the view that he was suffering from chronic post-traumatic disorder and was in a number of respects behaviourally and emotionally dysfunctional. 64 None of these matters warranted the conclusion made by his Honour at page 21 that the respondent's drug use had been a means of self-medication to deal with the symptoms that he has experienced as a consequence of the trauma arising from his history and background. Even if it were permissible, even to a limited degree, to so describe the basis of his drug usage, there is nothing in the passage in Henry that suggests that the use of heroin as a form of self-medication to exorcise real or imagined demons is any warrant for elevating considerations of leniency above those relating to the imposition of a proper sentence reflecting appropriate measures of punishment retribution and deterrence. This is especially so in a case such as the present where the armed robbery was of a very serious and violent kind. In fact, to take the contrary view, as the sentencing Judge did, is to subvert entirely the principles of general application so carefully analysed and affirmed by Wood CJ at CL in the whole of his judgment in Henry between pages 387 and 398. It will often be the case, as observed earlier, that the use of drugs as some kind of self-medication will be present as a circumstance of drug addiction. There is not the slightest suggestion in para 273 of Henry that such a situation is to be singled out so as to entitle leniency arising out of an absence of personal responsibility.

[83]

Re-sentencing the respondents 70 There is no need for me to repeat my views about the seriousness of the armed robbery in the present matter and the high level of criminality involved. Similarly, there is no need for me to repeat the considerable detail relating to the subjective circumstances of each respondent. 71 In my view, an appropriate head sentence for the armed robbery in the case of each respondent was, prior to discount for plea and assistance, a term of imprisonment for eight years. 72 In relation to the respondent S Y, I agree with the sentencing judge for the reasons given by him that special circumstances exist so as to vary the statutory proportion between non-parole period and the head sentence. It has been conceded by the Crown that, by reason of the assistance he has provided to enforcement agencies since May 2003, it would be appropriate to reduce any increased sentence imposed on S Y by as much as 50%. Having regard to the nature of the assistance involved, I accept that is a reasonable concession. 73 It is necessary, additionally, to have regard to the principle of double jeopardy (R v Bavadra [2000] 115 A Crim R 152) 74 In practical terms, the consequence for S Y is that, after a proper allowance for plea and assistance, and the allowance of special circumstances, the resultant term of imprisonment is such that it is appropriate, in the exercise of the Court's discretion, to dismiss the appeal. 75 In relation to the respondent K S it is appropriate that a discount for early plea and a limited level of assistance be recognised and applied. I agree with the sentencing judge's assessment of the low level of assistance likely to be provided in relation to evidence to be given by K S at the trial of Mr X. The resultant discount and the application of discretionary considerations, having regard to the fact that this is a Crown appeal, are sufficient to reduce the appropriate head sentence to a term of imprisonment for five years. This is especially so when regard is had to the principle of double jeopardy to which I have referred. 76 I would, for the reasons mentioned by the sentencing judge, find special circumstances in relation to K S and for the same reasons. There should be a lower than usual proportion between the non-parole period and the head sentence. 77 The practical application of these conclusions is that, in my view, K S should be re-sentenced to a term of imprisonment for five years with a non-parole period of three years expiring on 29 October 2004. 78 It remains only to deal with two arguments advanced by Mr Dhanji on behalf of K S. The first is the suggestion that the principle of parity might be offended as between the two respondents to this appeal because of the dismissal of the appeal against K S on discretionary grounds. Mr Dhanji relied upon the decision of Heydon JA in R v McIvor [2002] NSWCCA 490 at paras 10 and 11. As I read his Honour's decision, however, it not only fails to support Mr Dhanji's contention but is in fact authority for the very opposite proposition to that advanced by Mr Dhanji. 79 McIvor was a Crown appeal against the inadequacy of sentences passed in the District Court. The respondent and a co-offender Hernando had been sentenced in the District Court in relation to two counts of robbery in company. The sentences imposed on both on both McIvor and Herando included non-parole periods of approximately seven months and six months respectively. The Crown had brought an appeal against the inadequacy of the sentence against Hernando but had delayed a considerable time before bringing the appeal. The Court of Criminal Appeal, in the exercise of its discretion, dismissed this appeal although it was of the view that the sentence imposed on Hernando was manifestly inadequate. (R v Hernando [2002] NSWCCA 489) 80 The Crown appeal against the inadequacy of McIvor's sentence had been, by contrast, lodged promptly. The point at issue became whether, in relation to his appeal, McIvor could identify a legitimate sense of grievance if he were sentenced to fifteen months in gaol, in circumstances where the appeal against his co-offender had been dismissed. At paras 10 and 11 Heydon JA (with whose reasoning Levine J and Carruthers AJ agreed) said: - "It is appreciated that Lowe v R (1984) 154 CLR 606 does not automatically mean that any difference in sentences for co-offenders should mean that the higher sentence is unjust. See R v Diamond (Court of Criminal Appeal, unreported, 18 February 1993) and R v Steele (Court of Criminal Appeal, unreported, 17 April 1997). Those authorities indicate that what must be compared are appropriately lenient or low sentences with more severe sentences. If a sentence is inappropriately lenient, that is no justification for reducing a more severe sentence on a co-offender. As Brennan J said at 617, it is not the case that where there is one wrong sentence and one right sentence, the court should reduce the right sentence to the level of the wrong sentence. The more severe sentence should not be reduced to a level which is so far out of line with what is right that it is an affront to the administration of justice. But that line of authority deals with attempts by convicted persons to have their severe sentences reduced on appeal by comparison with lenient sentences on co-offenders. They do not deal directly with the present position - a question of whether a sentence on one co-offender should be raised while the identical sentence on another co-offender remains unchanged. In that type of circumstance, illustrated by the present case, questions of justifiable grievance arising by reason of a move from parity to a lack of parity have a different quality. Though McIvor cannot rely on the factor of delay in his particular case to any effective extent, it would be likely to excite a sense of grievance in McIvor if his sentences were increased while those imposed on his co-offender remained the same. That sense of grievance would be justifiable, because the difference would not depend on anything in the objective circumstances of the crimes or in the subjective circumstances of each co-offender's background. This legitimate sense of grievance would be likely to generate a bitter resentment antithetical to the prospects of avoiding recidivism. From this point of view McIvor is perhaps even more fortunate than Hernando, for not only did he share the same sentencing judge, he has been able to take account of a fact which is not peculiar to his own position, namely that, assuming that there were appellable errors in the sentencing judge's approaches in the two cases, Hernando's sentence is not to be changed by reason of the adventitious circumstance of the Crown's gross delay." [emphasis added] 81 There is no principle that would justify a legitimate sense of grievance on the part of K S in the present matter. This is because the difference between the way this Court proposes to deal with each appeal arises precisely because of the very different circumstances now existing in relation to each respondent. On the one hand, there is the respondent S Y who has in recent times provided extremely valuable assistance to an investigating agency in relation to the investigation of a very serious crime. On the other hand, there is the respondent K S who is not in that position at all. This marked difference between the two respondents is essentially why no legitimate sense of grievance can arise so as to offend the parity principle. 82 The final matter may be disposed of briefly. It is true that K S does not, and will not, have access to the confidential material which has revealed to the Court the assistance that has been given to the investigating authority by S Y. In the nature of things, that must remain the situation. In my view, this does not give rise to any discretionary matter which would warrant or entitle this Court from refraining to increase the sentence which otherwise considers is appropriate to impose upon the respondent K S. 83 Accordingly, the orders I propose are: -

[86]

Impose a sentence of imprisonment for five years with a non-parole period of three years. Both such periods to commence on 30 October 2001. The non-parole period is to expire on 29 October 2004. 84 HOWIE J: I have the benefit of reading the judgment of Whealy J in draft and I agree with the orders proposed and the reasons given by his Honour. I wish to comment on two matters that were raised in argument: one by the Crown and the other by the respondents. 85 The Crown submitted that Judge Sides erred in relation to the amount of discount given to the respondent SY as a result of the plea of guilty. The sentencing judge determined that the pleas were given at the earliest opportunity and justified a discount of 25 per cent. This was notwithstanding that SY did not plead guilty to the offences until 23 September 2002 after he had been committed for trial. His Honour treated these pleas as being made at the first reasonable opportunity because the Crown chose to indict the respondent with alternative counts of assaults to the charges of detain for advantage upon which the respondent had been committed for trial. There was, in my opinion, no basis for treating the plea to the armed robbery as being made at the first reasonable opportunity. A plea of guilty to that charge did not depend upon the other two charges, and the respondent could have pleaded to that offence while denying the other two offences at any time. 86 It does not always follow that a plea is entered at the first reasonable opportunity simply because the plea occurs after negotiations with the Crown once the offender has been committed for trial. Clearly there will be occasions where the nature of the bargain struck does indicate that the offender could not reasonably have been expected to plead guilty before the opportunity was presented to plead to some less serious charge. But that is not always so and it behoves the sentencing judge to look at the situation realistically in determining the value of the plea on the utilitarian basis. Nor is it the case that the same discount applies to all the offences for which the offender is to be sentenced and a proper exercise of discretion requires the judge to discriminate between the offences if it is necessary to do so in order to properly reflect the value of the pleas by the discount given. 87 Further, in R v Dib [2003] NSWCCA 117 this Court held that the fact that the plea to the lesser offence is offered at the first reasonable opportunity does not automatically mean that a full discount for the plea should be given. Hodgson JA, with whom Barr J agreed, stated:

[88]

This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability. 88 In my opinion his Honour erred in giving SY a discount of 25 per cent on the sentence for the armed robbery. It should have been no more than 15 per cent. 89 Both respondents relied upon parity with the sentence imposed upon the co-offender DV as justifying the sentences imposed upon the respondents or, in the alternative, as being a matter that this Court should take into account when determining whether to exercise its discretion in refusing to intervene to disturb the sentences. 90 Whealy J has referred to the sentence imposed upon DV and briefly the reasons given by Judge Sides for imposing a sentence that seems, on its face at least, to contravene s 23(3) of the Crimes (Sentencing Procedure) Act in that it is "unreasonably disproportionate to the nature and circumstances of the offence". In his remarks, when sentencing the respondents, his Honour sought to compare and contrast the subjective cases of the respondent's with that of DV. To some degree this evaluation was infected in favour of the respondents by the error that has been identified by Whealy J in respect of the sentencing judge's reliance on what Wood CJ at CL said in R v Henry. Judge Sides also undertook the same task in respect of the objective seriousness of their participation in the robbery. While it was true that DV had breached his employer's trust in assisting the respondents, the respondents were both involved in gratuitous violence to the victims. In the circumstances of this particular robbery it is impossible, in my view, to determine that the criminality of DV was higher than that of the respondents. 91 But the subjective features between DV, on the one hand, and the respondents, on the other, were so disparate that there was no requirement or justification for his Honour to seek to maintain parity between them. Of course the most important distinguishing feature between DV and the respondents was that of assistance to the authorities, including his confessions and his identification of the respondents and Mr X to the investigating police shortly after his arrest. But that was not the only factor. 92 The judge's remarks on sentencing DV are before the Court. He described DV as playing "a critical role in relation to the arrest and charging of the co-offenders". His Honour was also of the view that, without DV's preparedness to give evidence against Mr X, "it was highly unlikely that the Crown case would even be in a position to proceed". Judge Sides concluded that DV had a compelling subjective case but that it was not alone sufficient to justify anything but a full-time gaol sentence. His Honour believed that DV would be highly vulnerable in custody both by reason of his personality and because of the assistance he had given to police. Judge Sides thus concluded it was a case where exceptional circumstances had been made out permitting a sentence other than full-time custody to be imposed. It seems inescapable from a fair reading of the remarks that the sentence of three years was chosen because it was the longest sentence that could be imposed without requiring DV to serve full-time imprisonment. 93 Whether that sentence was erroneous is not now in issue. There is, however, a strong foundation for an argument that it was, both by reason of the sentence imposed and the manner in which his Honour determined it. But there was no Crown appeal. Judge Sides, therefore, was entitled, when sentencing the respondents, to conclude that such a sentence was appropriate in the case of DV. But his Honour was not entitled to assume that a sentence of three years otherwise represented a proper reflection of the objective circumstances of the offence. His Honour could not reason that a sentence of three years was an appropriate sentence to impose upon the respondents by seeking to achieve parity with that imposed upon DV. The sentence imposed on DV had little, or no, relevance to the task of sentencing the respondents. In particular, DV's sentence did not represent some benchmark upon which the appropriate sentences to be imposed upon the respondents had to be assessed. 94 Similarly the sentence imposed upon DV should not cause this Court to stay its hand. There could be no justifiable sense of grievance arising from the fact that, if the appeal were allowed, the respondents would be sentenced appropriately to the circumstances of their particular cases having regard to their criminality and their subjective matters. In any event, the errors identified by Whealy J were so egregious and the sentences so inadequate to reflect the objective seriousness of the offences that, subject to any other consideration, it would be an affront to the proper administration of criminal justice to allow them to remain. 95 There is authority that this Court is not required to achieve parity with an erroneous sentence, if to do so would amount to the imposition of another erroneous sentence: R v Diamond (NSWCCA, unreported, 18 February 193); R v Isumander and Siregar [2002] NSWCCA 447. Whether those authorities also apply to a Crown appeal, such that this Court would not allow an erroneous sentence to stand on the basis of parity with another erroneous sentence does not have to be determined. But clearly the failure of the Crown to appeal an erroneous sentence on a co-offender would be a matter tending to suggest that the appeal should be dismissed on discretionary grounds. Were it necessary to consider that matter in the present case, it would not, in my view, require that the appeal against the respondents be dismissed. **********

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