Sua v R

Crimes Act 1900 - s 97(2) LEGISLATION CITED: Firearms Act 1996 - ss 62(1)(b), 93G(1)(a)(ii) Criminal Appeal Act 1912 - s 6(3)

Pearce v The Queen (1998) 194 CLR 610 CASES CITED: Johnson v The Queen (2004) 78 ALJR 616 Mill v The Queen (1988) 166 CLR 59 R v Sua [2000] NSWCCA 84

COUNSEL: M. Hobart - Crown C. Davenport - Applicant

SOLICITORS: S. Kavanagh - Crown S. O'Connor - Applicant

IN THE COURT OF CRIMINAL APPEAL 2007/3268

SANTOW JA HIDDEN J HOWIE J

TUESDAY 4 SEPTEMBER 2007 Jack Siaki SUA v REGINA Judgment 1 SANTOW JA: I agree with Howie J and the additional remarks of Hidden J. 2 HIDDEN J: It is, of course, disturbing to see a young man sentenced to such a substantial term of imprisonment. Nevertheless, these were very serious crimes, committed by an offender on conditional liberty and with a history of offences of a similar kind. I agree with the orders proposed by Howie J and with his Honour's reasons. 3 HOWIE J: This is an application for leave to appeal against sentences imposed in the District Court in respect of seven charges to which the applicant had pleaded guilty in the Local Court. The applicant had been committed for sentence to the District Court where he adhered to his pleas of guilty and was ultimately sentenced on 15 December 2006. The charges for which the applicant was sentenced involved five offences of robbery while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act, one offence of possess loaded firearm so as to endanger life, contrary to s 93G(1)(a)(ii) of the Firearms Act and one offence of possess shortened firearm, contrary to s 62(1)(b) of that Act. In respect of the robbery offences the maximum penalty prescribed is imprisonment for 25 years and in respect of each of the firearms offences, the maximum penalty prescribed is imprisonment for 10 years. 4 The applicant was sentenced to an effective term of imprisonment of 13 years with an overall non-parole period of 10 years. The first of the sentences commenced on 6 December 2005 and the applicant is eligible to be released to parole on 5 December 2015. In respect of the first two charges of robbery the applicant was sentenced on each to a fixed term of three years imprisonment, the second sentence to be served cumulatively upon the first. In respect of the third, fourth and fifth charges of robbery the applicant was sentenced on each to a term of imprisonment comprising a non-parole period of four years with a balance of term of three years. Those sentences were concurrent within themselves but were to be served cumulatively upon the second count of robbery. On each of the firearm offences, the applicant was sentenced to a fixed term of imprisonment for 12 months each to be concurrent with the other and to be concurrent with the sentences for the third, fourth and fifth counts of robbery. 5 There are three grounds of appeal relied upon by the applicant as follows:

1. His Honour erred in not affording the applicant a full discount of 25 percent.

2. His Honour erred in imposing totally cumulative fixed terms in respect of each of the armed robbery offences.

3. The sentence failed to reflect his Honour's finding of special circumstances. 6 The facts of the matters can be stated briefly. The applicant was released to parole in respect of a sentence for armed robbery on 30 June 2005. The first offence of armed robbery was committed on 20 July 2005 at a mixed business. The applicant walked in, picked up a punnet of fruit, waited for other customers to leave and then approached the counter area. He told the victim to give him money. He then unzipped his backpack and removed a sawn-off shotgun, opening the breach to show that it was fully loaded. The victim took money from the till and gave it to the applicant who asked him for money from his wallet and his watch. The victim told the applicant that he had no money and that the watch was an engagement present. The applicant then left the store taking about $350 in proceeds. The applicant was identified as the robber by reason of a fingerprint left by him on the punnet of fruit. 7 The second robbery occurred at a pharmacy on 10 August 2005. The applicant approached the counter and demanded that the victim opened the till. He unzipped his bag, showing a firearm handle protruding from it. The victim opened the till and gave money to the applicant. He said that he also wanted the coins and the victim put them into a plastic bag, handing them to the applicant. The applicant told the victim and other staff members to get onto the floor and then left taking over $200. 8 The other three robbery offences all arose from a single incident that occurred on 11 August 2005. The applicant entered a brothel and produced a loaded sawn-off shotgun from a bag he was carrying. He demanded that the occupants hand over money and mobile phones. There were three victims and hence three charges. The applicant then at gunpoint forced the group to the kitchen area where he demanded that the safe be opened. The manageress complied with this demand and $600 was handed to the applicant. The applicant later forced the manageress to accompany him away from the others into the front of the premises where he told her to pack the proceeds of the robberies into his bag. The applicant ran from the premises but was apprehended by police while trying to escape in a taxi. The police found that the shotgun that he had been carrying was cocked. 9 The firearm offences related to the fact that the applicant had in his possession a shortened firearm and that, being loaded and cocked, it was in a highly dangerous state so far as members of the public were concerned. 10 The applicant was born in Samoa on 6 June 1981. His father was a Seventh Day Advantist pastor who was a strict disciplinarian. As a result, at a young age the applicant went to live with an aunt and uncle. In 1990 he moved to Australia. At the age of 14 he started using drugs eventually resorting to heroin and cocaine. At the age of 16 he committed an armed robbery offence in order to finance his drug addiction. Since 2001, the applicant had been at large in the community for less than three months. At the time of sentence he had some support of his family, a brother was present in court, although the pre-sentence report indicated he had become estranged from the family. 11 The applicant gave evidence before the sentencing judge. He expressed remorse for the offences and a realisation of the effect of his crimes upon the victims. He had been serving his sentence in custody performing the duties of a sweeper. He stated that he intended to attempt to overcome his drug problem by carrying out programmes while in custody. However he admitted in cross-examination that he had completed a drug and alcohol rehabilitation course in prison before he was released to parole.

Ground 1 12 During the course of his sentencing remarks the judge stated:

"He has pleaded 'guilty' and I allow a discount of 15 per cent for the pleas of guilty for the utilitarian value." 13 The applicant argues that, in light of the fact that the applicant pleaded guilty before the Local Court and adhered to those pleas in the District Court, the discount ought to have been at the maximum of 25 percent given the timing of the pleas and their utilitarian value. It was submitted that it was in effect unreasonable for the sentencing judge to deprive the applicant of a discount at the top of the range. 14 The Crown sought to rely upon material by way of affidavit filed in this Court setting out the history of the matter in the Local Court that indicated that the pleas of guilty did not come until over 11 months after the applicant's arrest. The Crown estimated that there were more than a dozen mentions of the matter in the Local Court and that the pleas of guilty did not emerge until about five and half months after the prosecution brief was served on the defence. 15 Although this material might have been before the Judge in the District Court file it is highly unlikely that the Judge would have been aware of it. There is nothing in the submissions made by the parties to the sentencing judge that referred to any delay in the plea in the Local Court or that that delay should sound in a reduced discount. Further there is nothing in the sentencing remarks to indicate that the Judge determined to give less than the maximum discount by reason of any delay in the pleas of guilty in the Local Court. 16 Although it has been frequently stated that an offender is not entitled to any particular discount, the discretion in determining the extent of the discount should be exercised reasonably and according to principle. There was no reason why the sentencing judge should have reduced the discount otherwise appropriate for early pleas of guilty and where the Crown acknowledged that the utilitarian value of those pleas was significant. The discount given was one that would have been appropriate had the applicant pleaded guilty after committal to the District Court. It must be observed that it is difficult to see a discount of 15 percent reflected in the sentences actually imposed. 17 However, although the Judge's discretion in respect of the discount for the utilitarian value of the pleas of guilty does seem to have miscarried, the question for this Court is whether some lesser sentence is warranted in accordance with s 6(3) of the Criminal Appeal Act. That matter is to be considered having regard to the further grounds of appeal.

Ground 2 18 It was submitted that the Judge erred in imposing sentences that were cumulative in respect of the three incidents represented by the five robbery offences. The applicant relied upon the principle that has been distilled from the decision of the High Court in Pearce as to the manner in which a court should sentence for multiple offences. In particular the applicant relied upon a concession made by the Crown appearing before the Judge that some partial concurrence was appropriate in relation to the sentences for the offences. It was submitted that the manner in which the Judge had structured the sentences failed to reflect that the offences were committed over a relatively short period of time and they had many features in common. It was argued that the manner in which the sentences were structured had resulted in a sentence that was manifestly excessive. 19 It is clear, in my opinion that the approach that the Judge was following in determining the structure of the sentences so as to accord with the principle of totality was that considered in Johnson v The Queen (2004) 78 ALJR 616 rather than that for which Pearce has held to be authority. In Johnson the Court affirmed the decision in Mill v The Queen (1988) 166 CLR 59 and confirmed that it was an appropriate course for a judge to reduce the sentences that might otherwise be appropriate for offences committed by an offender in order to achieve conformity with the totality principle when making those sentences cumulative. 20 In the present case counsel for the applicant conceded that a sentence of a fixed term of imprisonment for three years would not be an appropriate penalty to reflect the criminality of the applicant in respect of any one offence of armed robbery if that offence were considered in isolation. In other words had the applicant been before the court for only one offence of armed robbery with a dangerous weapon committed while on parole for a similar offence, a fixed term of three years would have been manifestly inadequate. Clearly the Judge reduced the otherwise appropriate non-parole period for the first and second offences when determining that each should be punished by a fixed term of three years. However, in respect of the other three offences of robbery, his Honour chose to make the sentence for each of those offences concurrent between themselves, because they arose from a single incident of criminality, but that those sentences should be cumulative to the sentences imposed for the first and second robberies, which were separate and distinct incidents. 21 In my opinion the only possible error that his Honour might have committed in structuring the offences as he did was to determine that the sentences for the last three charges should be concurrent notwithstanding that there were three separate victims each of whom were threatened with the loaded rifle and from whom the applicant stole property. There are a number of decisions of this Court that indicates that it is appropriate to accumulate sentences where more than one victim is involved. 22 The question is whether an overall sentence of 13 years is excessive having regard to the totality of the criminality involved in the applicant's offences in light of the fact that he was on parole for similar criminal conduct but having regard to his age and other subjective circumstances. In my opinion the overall sentence imposed upon the applicant was well within a proper exercise of sentencing discretion and in my view no lesser sentence is warranted notwithstanding that the applicant was given the benefit of a discount of only 15 percent for the utilitarian value of his pleas of guilty. In reaching that decision I have taken into account material contained in an affidavit that was tendered to the Court as to courses undertaken by the applicant. 23 The criminality of the applicant was very grave indeed considering that while on parole and less than a month after his release from imprisonment he obtained a shortened loaded firearm and committed a series of armed robberies. The last incident was particularly serious in light of the fact that the firearm was not only loaded but apparently cocked during the course of the robbery when a number of persons were threatened with the firearm and required to hand money and valuables to the applicant. He had been given the benefit of a reduced sentence for an earlier offence of armed robbery on appeal to this Court largely because of his young age and prospects for rehabilitation: see R v Sua [2000] NSWCCA 84. In light of the chances offered to him to rehabilitate himself whilst in custody and with the advantage of early release to parole, he could expect little leniency in respect of the sentences for these serious offences.

Ground 3 24 It was submitted on behalf of the applicant that the Judge failed to carry out his intention to find special circumstances for the purpose of determining the appropriate non-parole period by the manner in which he structured the sentences imposed. During the course of his sentencing remarks the Judge stated:

"Since these offences will involve a very long period of custody, he will require a lengthy period of post-custody supervision if he is to make good. To that extent I am prepared to find special circumstances, although, since there has to be accumulation of sentences, the ultimate result of the parole period may not reflect, in total, special circumstances such as to eventually affect the statutory equation. I cannot help that. The strictures of the legislation do not allow for that sort of arithmetical result." 25 The overall sentence imposed by the Judge is not in accordance with the statutory ratio. The aggregate non-parole period is about 76 per cent of the aggregate total sentence. But it is clear in that the Judge intended that the applicant should spend a period of 10 years in custody before being eligible to be considered to parole. 26 In my opinion there is no error in the passage quoted from the sentencing remarks. It is reasonably clear that the Judge was indicating that, at least in respect of the sentences for the last three offences, he would fix a non-parole period having found special circumstances but that there may not be, at the end of the day, a reduction in the overall non-parole period from that in accordance with the statutory ratio. It has been held that the fact that a sentence is being made cumulative with another sentence can require a finding of special circumstances in relation to the last sentence imposed in order to have the overall sentence accord with the statutory ratio between the non-parole period and the total term. It seems to me that this was what his Honour was intending to indicate in the passage quoted. 27 In my opinion the relationship between the overall non-parole period and the overall term of the sentence is not such that requires intervention by this Court. I am of the view that no lesser sentence than a minimum period of 10 years incarceration before the applicant is eligible to be considered to parole is warranted in view of the seriousness of the applicant's offending, the need for both general and specific deterrence, and the failure of the applicant to benefit from the leniency that was shown to him the last time that he was before this Court. In other words no lesser sentence than that imposed by the Judge is warranted notwithstanding the failure of the sentencing judge to discount the sentences imposed upon the applicant by more than 15 percent for the early pleas of guilty. 28 I propose that the applicant be granted leave to appeal to this Court against the sentences imposed upon him but that the appeal be dismissed. **********

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