Stepanyan v R

Ground 1 - His Honour erred in finding that the offence was aggravated by the security guard, a co-offender, being shot 34The applicant conceded that his Honour's approach that the most relevant sentence for him to consider for comparative purposes was that imposed on Mr Balian was correct. It was submitted, however, that neither the s 97(2) offence for which the applicant was being sentenced, nor the s 33 offence being taken into account on the Form 1 involved the wounding of the security guard. That was because it was found that he had been complicit in the pre-planning of the offence. It was thus argued that his Honour had erred in concluding that the seriousness of the offence was aggravated by the fact that a person was shot. 35It was also argued that Frearson DCJ had adopted the correct approach when sentencing Mr Balian, when he observed: "I do acknowledge that the offender is not to be punished for the shooting of the security guard and I disregard that aspect. He is to be punished for the robbery in which he participated, a robbery in which he was well aware that the persons who went in to perform the robbery were armed. I appreciate that I do not aggravate the offence by reason of the bare elements of the offence which obviously includes the robbers being armed. But I should add though that it was a robbery that involved some actual shots being discharged. It seemed to me that I can take into account the actual violence that was perpetrated and the actual things that happened in terms of discharging of shots but not the fact that the security officer was wounded and I disregard that latter aspect." 36There are two difficulties with the applicant's reliance on these remarks. The first, that Lakatos DCJ wrongly took a different view to that of Frearson DCJ, is not made out by a fair reading of his Honour's sentencing remarks. The second, that it is not clear that Frearson DCJ's approach was correct. 37The applicant was being sentenced for an offence under s 97(2) of robbery while armed with a dangerous weapon. The offences established by s 97 of the Crimes Act are: "97 Robbery etc or stopping a mail, being armed or in company (1) Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, or stops any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same, shall be liable to imprisonment for twenty years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) when armed with a dangerous weapon. A person convicted of an offence under this subsection is liable to imprisonment for 25 years." 38In determining this sentence his Honour had regard to the R v Henry guideline judgement, where Spigelman CJ identified at [162] s 97(1) cases with common characteristics warranting a custodial sentence in the range of 4 and 5 years. They were: "(i) Young offender with no or little criminal history (ii) Weapon like a knife, capable of killing or inflicting serious injury (iii) Limited degree of planning (iv) Limited, if any, actual violence but a real threat thereof (v) Victim in a vulnerable position such as a shopkeeper or taxi driver (vi) Small amount taken (vii) Plea of guilty, the significance of which is limited by a strong Crown case." 39Spigelman CJ also discussed mitigating and aggravating factors which would warrant sentences falling below or above that range: "169 Aggravating and mitigating factors will justify a sentence below or above the range, as this Court's prior decisions indicate. The narrow range is a starting point. 170 In addition to factors which may arise in any case eg youth, offender's criminal record, cooperation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include: (i) Nature of the weapon (ii) Vulnerability of the victim (iii) Position on a scale of impulsiveness/planning (iv) Intensity of threat, or actual use, of force (v) Number of offenders (vi) Amount taken (vii) Effect on victim(s)" 40That approach accords with the requirements of the Crimes (Sentencing Procedure) Act 1999 (NSW), which requires that relevant and known mitigating and aggravating factors to be taken into account on sentencing. They include that the offence involved the actual or threatened use of violence (s 21A(3)(b))and the actual or threatened use of a weapon (s 21A(3)(c)). 41Here the evidence established that not only were the applicant and Mr Koupilian armed with guns, but that threatened and actual violence was used towards both Mr Lee and Mr Yaacoubian, who were both taken to the safe, pushed to the ground and gaffer taped. Mr Lee was then threatened that he would be killed and Mr Yaacoubian was actually shot. That was done in order not only to help intimidate Mr Lee, but also to conceal Mr Yaacoubian's involvement in the robbery and to help him further his other aim, of falsely making a compensation claim from his employer. That was plainly to be a part of his reward for his participation in the robbery. 42That it was planned by the co-offenders, who included Mr Yaacoubian, that he would be shot, did not make this evidence irrelevant to the sentencing task which his Honour had to undertake. To the contrary, it plainly revealed aggravating matters which did not form an element of the s 97(2) offence. It was evidence which could not properly be ignored. Nor could it be suggested that taking these matters into account would have been wrong, because it would have warranted the applicant's conviction with respect to a more serious offence, contrary to the principles stated in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. 43Under s 97(1), a robbery offence carries a maximum sentence of 20 years imprisonment. Such an offence is aggravated if carried out by a person armed with a dangerous weapon, in which event the maximum penalty is 25 years. Under s 98, an offender who commits a robbery when so armed and also immediately before, or at the time of, or immediately after the robbery, also wounds, or inflicts grievous bodily harm upon that person, is also liable to a maximum term of imprisonment of 25 years. 44It follows that if his Honour had taken the shooting of Mr Yaacoubian into account as an aggravating matter, he would not have erred. It does not, however, appear that he did so. His Honour not only considered the sentence imposed by Frearson DCJ on Mr Balian, he said a relevant aggravating factor was the use of violence, noting that: "A weapon was used...there was actual violence rather than a threat of it albeit I note that the violence was perpetrated on a person, so the Crown contends and I accept was party to this criminal activity and may well have expected it to have happened. However, I am bound to take into account the effect that such violence would have had on Mr Lee who observed it occurring and did not know if it was indeed the case that this was an inside job. The victim was clearly in a vulnerable position, he being a Bar Manager at a hotel when, on that occasion, there was nobody else present." 45Contrary to his Honour's observations it was in fact common ground that Mr Yaacoubian had consented to being shot. His Honour, however, finally identified one of the key features of the offence to have been 'the use of a loaded firearm and its discharge, placing the victim in fear and ensuring his compliance'. That was clearly a reference to Mr Lee, not Mr Yaacoubian. 46In so approaching this sentencing task his Honour did not fall into the error on which the applicant relied. In the result this ground was not established.

Ground 2 - The applicant had a justifiable sense of grievance given the degree of disparity in the starting point adopted by his Honour, in relative terms to that adopted with the co-offender Balian 47The applicant did not challenge his Honour's findings that he was one of the principals in this criminal enterprise, and thus one step higher in the hierarchy than Mr Balian, or that this had to be taken into account in this sentencing exercise. That the s 33 offence also had to be taken into account in the sentence imposed upon him, with the result an increase in the relative starting point of his sentence, was also accepted. It was, however, submitted that the disparity in the starting points for the two sentencing exercises, of 8 years, 6 months in Mr Balian's case and 10 years in the applicant's was too great, despite these differences. 48The applicant's case was that Mr Balian had been: "i. Involved in the planning of the robbery and prior surveillance of the target. ii. He drove on three occasions to meet the security guard. iii. He organised the gun and purchased the balaclavas. iv. Agreed to drive the getaway car and arranged the safe house; and v. While he distanced himself from the actual events inside the club he knew the plan was that the security guard was to be shot and the manager threatened. Further, by being outside he minimized his risk of exposure to detection." 49Mr Balian also knew that it was planned that Mr Yaacoubian would be shot. He was otherwise a willing participant in the robbery he had helped plan. It was submitted that it followed that Mr Balian's level of criminality was thus not substantially lower than that of the applicant. It was also relevant that he had a significantly more serious criminal record than that of the applicant, which together should have resulted in a lower sentence than that imposed on the applicant. 50At the time of the robbery the applicant, who was aged 20 years was subject to two bonds for driving offences, while Mr Balian, who was aged 22 years was on parole for armed robbery, having been released to 15 months parole on 15 February 2008. Mr Balian was thus 2 years older than the applicant and had a more serious record, having already served terms of imprisonment for break enter and steal offences, while the applicant had only a robbery with offensive weapon offence as a juvenile, for which he was ordered to serve 40 hours community service, an affray for which he had a s 9 bond and driving offences. It was argued that this difference should have been reflected in a lower relative starting point for the applicant's offence. The evidence as to problems he was experiencing with orthodontic problems should also have had an impact on that outcome. 51In the result the applicant submitted that his Honour had not properly observed the principle of parity in sentencing, leaving him with a justifiable sense of grievance, as discussed in Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540. 52In that case Campbell JA referred to what was discussed by Gibbs CJ (with whom Wilson J agreed) in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 as to the operation of the parity principle in the case of two people who had co-operated in the one criminal enterprise, although playing different roles in it. There it was observed at 609: "The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account." (emphasis added) 53Those considerations explain the difference in the sentences imposed on these two offenders, as does the Form 1 offence for which the applicant was being sentenced. As reiterated in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [31]: "The sense of grievance necessary to attract appellate intervention [in a severity appeal] with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise." 54This was unquestionably a very serious, planned offence committed by a number of offenders, the younger applicant being found to have been one of the principals and Mr Balian, who had a more serious record and was on parole, having taken a lesser role in the enterprise. The sentence imposed on Mr Balian had to reflect the common purpose which he and his co-offenders had pursued and that they were to be sentenced for the full range of the criminal acts done by any of them in carrying out that purpose, but he was not necessarily to receive the same punishment as would have been appropriate, if he had personally performed all of those acts (see R v Wright [2009] NSWCCA 3 at [28] - [32]). Importantly in this case he was not one of those involved in the repeated discharge of the firearm and the shooting engaged in to wound Mr Yaacoubian and to intimidate Mr Lee. That had to be taken into account when Mr Balian was sentenced. 55That the applicant was personally involved in all of these acts did have to be taken into account when he was sentenced, as did his greater role in the enterprise. That had to result in a higher sentence in his case. 56Further, in this case, not only were the circumstances in which their pleas were entered such that in the applicant's case only a discount of 10% was warranted, while in Mr Balian's case a 55% discount was warranted, but very different conclusions were reached as to the evidence given by Mr Balian, which was accepted and the views reached as to the reliability of the information put before the court on sentencing by the applicant, who had earlier given false evidence at the aborted trial and had not himself given evidence at the sentencing hearing. That had an impact on his Honour's approach to the evidence as to his personal circumstances and the relevant mitigating matters which had to be taken into account when sentencing the applicant, which did not arise in Mr Balian's case. 57That this Honour erred in the conclusions which he reached, so as to have given rise to a justifiable sense of grievance on the applicant's part, was not shown. As Spigelman CJ observed in Mulato v R [2006] NSWCCA 282 (Simpson J agreeing) a (46): "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour." 58That his Honour's characterisation of the applicant's role and the acts for which he had to be held accountable and how that should be reflected in the sentence imposed upon him were wrong, was not established. His Honour's conclusions accorded with those reached by Frearson DCJ, who found that Mr Balian's role had been limited, namely that of a driver who chose not to go into the Club. While he was a participant in a well planned armed robbery involving a number of offenders and threatened and foreseeable violence, this was accepted as providing some limited amelioration of his sentence. Such a conclusion was not available to the applicant. 59The differences in the two offenders' respective criminal records was apparent and a relevant matter taken into account, but in the face of the other matters which had to be taken into account in this sentencing exercise, including the other aggravating and mitigating matters which his Honour discussed and the Form 1 offence, that his Honour erred in rejecting the outcome for which the applicant contended and imposing the higher sentence which resulted, has not been established. 60It may not be overlooked that the increase in the sentence warranted by the Form 1 offence was not necessarily small. It was a serious offence carrying a maximum penalty of 10 years. As Hoeben J discussed in Dionys v R [2011] NSWCCA 272 at [64] - [65]: "64 The observations of Spigelman CJ in the guideline case go further than was set out in the applicant's submissions. The following extracts indicate his Honour's view as to the extent to which Form 1 matters can affect the length of a sentence: "18 A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (See e.g. The Queen v White (1981) 28 SASR 9 at 13; Murrell v The Queen [1985] FCA 14; (1985) 4 FCR 168 at 179 per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372.) ... 42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. 43 I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence." 65 What is clear from the above paragraphs is that while the Court is sentencing only for the principal offence and not for the Form 1 offences, the entire point of the process is to impose a longer sentence and that the additional component may not be small. While not excluding other considerations, the Chief Justice referred specifically to greater weight being given to personal deterrence and to "the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed." 61In this case the increase in the sentence imposed on the applicant to reflect the serious Form 1 offence which was being taken into account, plainly had to result in a substantial increase in the sentence which would otherwise have been imposed upon him. His Honour correctly concluded that the sentence had to have particular regard to both elements of general and specific deterrence. In the result, in my view, it must also be concluded that this ground was not established.

Orders 62For these reasons, I would make the following orders:

1. Leave to appeal allowed.
2. Appeal dismissed. 63BARR AJ: I agree with Schmidt J.

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