Regina v Tezay Hasan

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Lowe v The Queen (1984) 154 CLR 606 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v AEM Snr, KEM and MM [2002] NSWCCA 58 R v Ellis (1986) 6 NSWLR 603 R v Hammoud (2000) 118 A Crim R 66 CASES CITED: R v Henry (1999) 46 NSWLR 346 R v Iskander (CCA- 22 July 1996) R v Kalache (2000) 111 A Crim R 152 R v Lynn [2004] NSWCCA 222 R v Mako [2004] NSWCCA 90 R v Thomson (2000) 49 NSWLR 383

A Francis - Applicant COUNSEL: B Knox SC - Respondent

S E O'Connor - Applicant SOLICITORS: S Kavanagh - Respondent

• 8 - IN THE COURT OF CRIMINAL APPEAL 2454/04

DUNFORD J BELL J

FRIDAY 4 FEBRUARY 2005 REGINA v TEZAY HASAN Judgment 1 DUNFORD J: Tesay Hasan (the applicant) seeks leave to appeal against the sentences imposed by his Honour Judge Dodd in the District Court at Sydney on 12 March 2004 following his pleas of guilty in the Central Local Court on 29 July 2003 to two counts of robbery in company committed against two taxi drivers on 22 and 30 December 2002 respectively. He adhered to his pleas in the District Court on 5 March 2004. The offences were committed along with a co-offender, Ozal Shefki, a cousin of the applicant. The maximum penalty for each offence is twenty years imprisonment: s 97(1) of the Crimes Act 1900.

2 His Honour sentenced the applicant to two wholly concurrent terms of imprisonment for four years with a non-parole period of two years to commence on the date of sentencing, 12 March 2004. The co-accused received the same sentences, but backdated to an earlier starting date due to pre-sentence custody.

3 The applicant has filed a Notice of Application for Extension of Time to lodge the Notice for Leave to Appeal, being two days out of time.

4 At about 6:30pm on 22 December 2002, the applicant and Shefki approached a taxi parked near the Parramatta Railway Station. Shefki sat in the front seat and the applicant in the back. The driver, Mr Nguyen, drove them to Leichhardt. He was directed to a dead-end street, supposedly on the basis of the offenders going to a girlfriend's house. The applicant suddenly grabbed Mr Nguyen from behind by the throat with both arms. Mr Nguyen described being "strangled" and held back strongly in his seat. Shefki threatened to stab him if he did not hand him money. Mr Nguyen gave $150 to Shefki from his shirt pocket. The taxi ignition keys and the victim's house keys were also stolen. The offenders ran away.

5 At about 10:30pm on 30 December 2002, the offenders entered a taxi at the Lidcombe Railway Station taxi rank. The applicant sat in the back and Shefki sat in the front. The driver, Mr Wong, was directed to drive to Star City Casino. About halfway there he became concerned that he may not be paid and after some discussion Shefki handed Mr Wong his mobile telephone as a form of security. Close to the Casino he was directed to drive into a dead-end street, again on the basis of going to a girlfriend's house, who, according to Shefki, had the credit card they were going to use to pay for the fare. The applicant grabbed Mr Wong from behind by the throat with both arms. Mr Wong described having "a lot of trouble breathing and I thought I was going to die." The applicant was pulling him "very tight back into my seat." Shefki threatened to stab him if he did not hand over money. Mr Wong pointed to the centre console, as he was unable to speak, and Shefki stole $60 to $70, the taxi ignition keys and reclaimed his mobile telephone. The offenders ran off.

6 The victim, Mr Nguyen, identified Shefki when he happened to see him at Liverpool Local Court on 27 March 2003 (Mr Nguyen was studying law and attended to observe court proceedings generally). The applicant turned himself in on 4 June 2003, it seems after a conversation with Shefki, but at a time when his identity was unknown to police. The applicant was charged by police that same day and released on bail. None of the property stolen was recovered and had not been repaid at the time of sentencing.

7 With respect to the objective seriousness of the offence, his Honour noted the prevalence of robbery from the person and described both offences as "serious". His Honour found:

"In my view they were not mere opportunistic examples of this kind of criminal activity but there was some element of planning involved. That is, in my view, confirmed by the fact that a second offence took place in much the same manner as the first. You both appear to have acted entirely in similar roles in each offence. Although the offences cannot be regarded as being towards the upper end of the scale for such offences, they are, nevertheless, serious examples of such offences." 8 His Honour summarised the applicant's subjective features (ROS 6-10). The applicant was nineteen at the time of the offences and twenty when sentenced. He is Shefki's cousin. His Honour noted that the applicant was on a twelve-month bond to be of good behaviour imposed at the Downing Centre Local Court, three months before the offences for common assault, and a second twelve-month bond imposed by Burwood Local Court two months before the offences for driving in a manner dangerous. His Honour noted that the present offences were thereby aggravated (although it was submitted that it would be more accurate on the authorities to say that the present offences are seriously aggravated).

9 A pre-sentence report stated that the applicant was generally compliant in the past with his supervision and reporting obligations. The applicant had remained on bail since handing himself in to the police. He had a supportive family upbringing, but they were shocked at his behaviour and he clashed with his father. This led to the applicant leaving home in November 2003. His sister noted that he had become more mature and family orientated since moving out and he was now more mature in his choice of friends.

10 The applicant completed most of his HSC and completed six months of an Australian Army Reserve Private's course, but left to work as a bricklayer's labourer and then worked for a real estate agent. He commenced a TAFE course in real estate but discontinued after a few weeks and had resumed work as a bricklayer. He had a positive report from his current employer.

11 The applicant reported being shot at some months prior to the offences when he was at Shefki's house, apparently by a gang called "The Assyrian Kings". He and Shefki decided to commence a weight-training program and they took steroids, leading to bouts of uncontrollable anger. The applicant had stopped using steroids. His Honour noted that the pre-sentence report and the psychological report of Mr Gorrell discussed the possible side effects of steroids on users of the drugs. 12 As his Honour observed, however, both offences were committed deliberately and no evidence was led to establish that steroid leads to the commission of this type of offence. The steroid use was not an excuse for the offences and could not be used in mitigation, given the deliberate planning of the offences and the modus operandi used by the offenders on each occasion.

13 In sentencing the applicant and his co-offender, his Honour noted that they had both pleaded guilty at the earliest opportunity and said (ROS 9) that on account of the utilitarian value of such pleas he was allowing a discount in accordance with R v Thomson (2000) 49 NSWLR 383 of twenty-five per cent. Subsequently, his Honour referred to the guideline judgment in R v Henry (1999) 46 NSWLR 346 and a number of features of the offences identified in that case as relevant to determining the sentence.

14 The matters referred to are also relevant under s 21A of the Crimes (Sentencing Procedure) Act 1999. His Honour went on: "... and you have both pleaded guilty, the significance of that being limited by a strong case in your case, Mr Shefki, and as a result of your admissions in your case also, Mr Hasan."

and later: " I take into account in your case Mr Hasan that you did turn yourself in and had you not done so the possible prosecution of you for these offences might not have taken place." 15 His Honour found special circumstances and then decided that although there were two separate offences, he would make the sentences for each offence wholly concurrent with each other and imposed the sentences referred to.

16 Grounds of Appeal 1 and 2 are as follows: 1. His Honour erred in assessing the value of the plea of guilty stating that it was "limited by a strong Crown case";

2. The sentence does not reflect a significant element of leniency having proper regard to the principles enunciated in R v Ellis (1986) 6 NSWLR 603.

17 A difficulty which immediately arises in considering both grounds is that, although his Honour has referred to two guideline judgments by name, he has not shown how he has applied them, and although he has announced a twenty-five per cent discount for the utilitarian value of the pleas of guilty, he has not specified the notional sentence which he has discounted by twenty-five per cent.

18 One can mathematically calculate that four years is seventy-five per cent of five years four months, but if five years four months was in fact his Honour's starting point, it is in excess of the range indicated in R v Henry for cases which clearly and, as his Honour implicitly found, were not at the top of the range of cases considered in that judgment. As pointed out in R v Lynn [2004] NSWCCA 222, the purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea: R v Thomson at [162]. See also R v Mako [2004] NSWCCA 90.

19 It is generally, in my view, unsatisfactory to indicate that a specified discount is being allowed without specifying the term off which such discount is being allowed, otherwise there is a danger that the offender may perceive that although a discount has been specified, it has not in fact been allowed in the sentence. I have some concern that this may be what in fact happened in this case.

20 One of the relevant factors referred to in Henry is a plea of guilty of limited value. As was made clear in Thomson, this factor in the Henry guideline is separate to the issue of the utilitarian value of the plea, in respect of which the discount is additional and dependent primarily on the timing of the plea.

21 In the present case, the reference to the strong Crown case related to the evidence of identification by one of the taxi drivers of the co-accused and, in the present case, to the fact that he had made a number of admissions and this is related to ground 2. 22 With all due respect to his Honour, the applicant's admissions did not limit the significance or value of his pleas of guilty but considerably enhanced them. These were not mere pleas exhibiting a degree of contrition, but the applicant had voluntarily surrendered to police and confessed at a time when they were apparently not aware of his identify and, as his Honour said, if he had not done so he may never have been prosecuted for these offences.

23 This factor of itself entitled the applicant to some degree of leniency in accordance with the principles set out in R v Ellis (1986) 6 NSWLR 603. But, the facts of this case are very different to that in Ellis. There, the applicant had made voluntary disclosure of his involvement in armed robberies of which the police had no knowledge. Here, on the other hand, the police had information in respect of the robberies, they had identified and arrested his co-offender and there was a real risk, it would seem, that the co-offender may identify the applicant, particularly bearing in mind that he confessed after speaking to the co-offender. But he did voluntarily surrender and confess and is entitled to some recognition and leniency on that account.

24 The third ground of appeal is that the sentences are manifestly excessive. In considering this ground it is necessary to bear in mind that these were deliberate, unprovoked attacks on taxi drivers at night in dead-end streets into which they had been directed so that the robberies could take place and in Henry itself, Spigelman CJ drew attention at [162] to the particular vulnerability of taxi drivers. See also R v Iskander (CCA - 22 July 1996).

25 However, there were two quite separate discrete offences some eight days apart, and yet his Honour saw fit to make the sentences wholly concurrent; and although the applicant's subjective features were generally good, these offences were committed in breach of two separate good behaviour bonds granted to him in the Local Court.

26 Pearce v The Queen (1998) 194 CLR 610 requires, in the case of sentencing for multiple offences, that the Court first fix an appropriate penalty for each offence and then consider accumulation or concurrence so as to give effect to the principle of totality; that is, to determine the appropriate period of incarceration for the total criminality involved: R v Kalache (2000) 111 A Crim R 152 at 183-4, cited in R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [60]. Generally, disparate features of the two offences will point to at least a partial accumulation: R v Hammoud (2000) 118 A Crim R 66 at [7]

27 If four years was the appropriate sentence for one robbery in company, it would not, in my view, also be an appropriate sentence for two robberies in company. I therefore consider that the sentences should have been made partially concurrent.

28 Although not referred to in the grounds of appeal, it was submitted that parity principles such as referred to in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295 required that this applicant receive a lesser sentence than his co-accused because there was more evidence of contrition in his case on account of his voluntarily surrendering to police at a time when they apparently were not aware of his identity but, as I have already commented, this was precipitated by the co-accused and was some months after the commission of the offences.

29 Whilst it is conceded by the Crown that there may technically be some merit in this submission, any difference to be reflected in the comparative sentences on this account, would in all the circumstances be minimal. 30 For myself, I would not have placed these offences at the bottom of the range indicated in Henry because they each involved an attack on a victim in a particularly vulnerable position and because the offences constituted breaches of two bonds only recently given. I would have allowed a discount of approximately thirty per cent on account of the utilitarian value of the pleas at the earliest opportunity and the voluntary surrender of the applicant to police and disclosure to police, but I would have made the sentences for the two offences partly cumulative.

31 When these factors are all balanced against each other, I am satisfied that the effective sentence imposed of four years with a non-parole period of two years is not manifestly or otherwise excessive, and is well within the appropriate range.

32 As error has been disclosed in his Honour's approach, I have taken into account the contents of the two affidavits that have been filed. They show that the applicant is making good use of his time in custody to better himself and to prepare for his release; and that his rehabilitation is well advanced and his prospects good. This is commendable but is no less than the sentencing judge expected, and was the reason for him finding special circumstances thereby reducing the non-parole period from three-quarters of the head sentence to only one-half.

33 For these reasons I would grant an extension of time for the filing of the notice of the grounds of appeal. I would grant leave to appeal but I would dismiss the appeal.

34 BELL J: I agree with the orders proposed by Dunford J for the reasons that his Honour gives.

35 DUNFORD J: The orders will be as I have indicated.

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