Tobia v R

Court of Criminal Appeal (NSW)|2016-04-21|Before: Hulme J, Garling J, Wilson J

Judgment

R A HULME J: I agree with the judgment of Wilson J which encapsulates my reasons for joining in the making of the orders of the Court on the hearing of the application for leave to appeal on 21 April 2016.
GARLING J: The reasons set out in the judgment of Wilson J, to which I have nothing to add, express my reasons for joining in the orders which the Court made on 21 April 2016.
WILSON J: On 21 April 2016 this Court heard an application from Evin Tobia, the applicant, for leave to appeal against the sentence imposed upon him on 2 April 2015 in the District Court of New South Wales for an offence of aggravated break, enter and steal, contrary to s 112(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation was that the applicant was in company with another offender, Yahyah Aili ("the co-offender").

The Proceedings Before the District Court

The applicant came before the District Court on committal for sentence, having entered a plea of guilty in the Local Court on 26 November 2014. On 2 April 2015 he was sentenced by her Honour Judge Culver to a term of imprisonment for 3 years to date from 3 March 2015 and expiring on 2 March 2018, with a non-parole period of 15 months. The applicant was therefore first eligible for release from custody on 2 June 2016.
An offence of aggravated break, enter and steal carries a maximum penalty of 20 years imprisonment, with a standard non-parole period of 5 years imprisonment as specified by Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The co-offender was referred to the Drug Court having been accepted into the Drug Court program. He faced initial sentence for this offence, and an additional related offence of steal from the person, contrary to s 94 of the Crimes Act. The latter offence was taken into account on a Form 1 document pursuant to s 32 of the Crimes (Sentencing Procedure) Act. The co-offender also faced sentence for a separate offence, being a further count of steal from the person.
Pursuant to s 53A of the Crimes (Sentencing Procedure) Act, an aggregate sentence of imprisonment for 2 years and 6 months was fixed. The indicative sentence for the subject offence was imprisonment for 2 years and 3 months. The sentence was suspended upon the co-offender entering the Drug Court program. A non-parole period was not set, pending participation in the Program.
The applicant was also eligible for entry into the Drug Court program, but was unsuccessful in gaining a place.

The Facts of the Offence

The facts of the offence can be briefly stated. The larceny took place at a residential address in Liverpool on 14 May 2014. At about 4pm that day, the co-offender stole a handbag and its contents from a 55 year old woman (this offence was reflected by the s 94 offence that was taken into account when the co-offender was dealt with for the s 112(2) offence). The contents of the stolen handbag contained a number of personal items, including the victim's house keys.
There is no suggestion that the applicant played a role in that initial theft.
At around 9pm that same day, the applicant and his co-offender used the stolen house keys to enter the victim's premises when she was away from home. Whilst the key gave access to the front security screen door and the front entrance door of the premises (both of them locked), it was necessary for the offenders to break a security chain across the front door to gain entry.
Over about an hour, the applicant and his co-offender ransacked the victim's house and stole a number of items including specially issued Australian gold and silver coins, collected stamps, a digital camera, cash and various documents and cards.
The statement of agreed facts indicates that the total value of the stolen property was $12,355.13. None of the property was ever recovered.
The applicant was arrested on 20 May 2014; the co-offender was also arrested at around that time, the fingerprints of each having been found in the property. During an interview with police the applicant conceded that he and his co-offender had broken into the house and taken property from it, with the property later either pawned, thrown away, or burnt.

Additional Information in the Crown Case

The applicant's criminal history contained relatively few entries although, importantly, he had been previously convicted of a dishonesty offence, and was subject to conditional liberty at the time of the present offence.
The applicant had two driving matters in his history (an offence of drive menacingly, and one of drive whilst disqualified) from October 2010 and May 2011, dealt with respectively by way of fine and bond. In December 2013 the applicant was convicted of an offence of steal from the person. He was fined, and made subject to a 2 year good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act. Additional charges of furnish false information and receiving stolen goods were dealt with by fine.
Three days after the commission of the current offence the applicant committed the offence of steal from the person. He was sentenced to a term of 12 months imprisonment, commencing on 31 July 2014 and expiring on 30 July 2015. A non-parole period of six months was fixed, which expired on 29 January 2015.
The applicant had been called up for the breach of the good behaviour bond that the current offence constituted, and sentenced to a term of 12 months imprisonment, backdated to commence on 31 October 2014. A non-parole period of 6 months was fixed, which expired on 30 April 2015.
A pre-sentence report set out the applicant's personal and family circumstances. He is the youngest of a number of children to his Christian Assyrian parents. Having been born in Iraq, the family were marginalised, and the applicant witnessed the killing of family members there. Two of his brothers died in the conflict in Iraq. The applicant's family fled their homeland when the applicant was about twelve years old, living in Syria for two years, before settling in Australia.
The applicant found school in this country difficult, and reported having been bullied. He left school at the beginning of Year 11. His only employment was very short term work as a cleaner and labourer.
The applicant's family are close and supportive, and the death of the applicant's father in January 2014 affected the applicant considerably. The family reported that he became depressed.
Members of the applicant's family told the author of the pre-sentence report that the applicant fell in with anti-social friends when he arrived in Australia. He began to use cannabis at about sixteen years of age, and other drugs - methylamphetamine, cocaine and ecstasy - from the age of seventeen. The applicant said that this drug use and his unstable emotional state following his father's death had led to his involvement in the subject offence.
The applicant, who was in Australia subject to a visa, has had his visa cancelled. Whether his visa will be reinstated was undetermined at the time of sentencing.

The Applicant's Case Before the Sentencing Court

The applicant tendered a report from a forensic psychologist, Patrick Sheehan. The applicant gave Mr Sheehan a history broadly consistent with that contained in the pre-sentence report, although he did not give him a truthful account of his criminal history.
He reported finding the transition to life in Australia difficult and felt bullied and alienated at school because of his poor English language skills. He fell in with a group of socially wayward teenagers and began truanting from school. The group introduced him to drug use and crime, much to the distress of his family. The applicant's drug use continued because he felt anaesthetised from his memories and dreams of war and death when intoxicated. His health suffered; the applicant reported considerable improvement in his health and weight following his incarceration.
Mr Sheehan noted that the symptoms reported by the applicant were consistent with Post Traumatic Stress Disorder, although he could not suggest a firm diagnosis in the absence of any supporting evidence for the existence of the disorder. The applicant's reported drug use met the criteria for a substance abuse disorder. Mr Sheehan opined that the applicant's struggle to deal with the trauma of exposure to war set the context for his drug use, and the commission of the current offence.
The applicant expressed remorse for what he had done to Mr Sheehan, stating that he had brought shame on his family.
The applicant further expressed his remorse in a letter written by him to the sentencing judge, and another he had written to the court, as a means of conveying an apology to the victim of his crime, and to the community more broadly.
In oral evidence before the sentencing judge on 2 April 2015, the applicant gave further detail of some of those matters referred to by Mr Sheehan, and in the letters to the court. He deposed that, upon release from prison, he intended to resume his studies to obtain his Higher School Certificate, and to work for his brother in his brother's transport business.
The applicant's sister gave short evidence confirming his prospective employment.

The Position of the Co-Offender

Tendered before the sentencing judge was a copy of the co-offender's criminal history. Mr Aili had convictions for offences of cruelty to an animal, assaulting a police officer, and failing to appear. The latter was dealt with without penalty, whilst bonds were imposed for the former. The co-offender was not subject to any bond at the time of the commission of the offence.

The Remarks on Sentence

In her Remarks, the sentencing judge set out the circumstances of the offence, noting that a level of pre-meditation, co-ordination, and organisation was involved in the crime. She referred to the distress occasioned to the victim of the crime, whose sense of security and sanctuary in her home was destroyed, particularly so where there had been damage occasioned to the property. Her Honour concluded that the seriousness of the offence was between the low and mid-range.
The applicant's criminal history was set out, with her Honour noting that he was subject to conditional liberty at the time of the offending conduct, that being an aggravating feature.
The sentencing judge accepted that the applicant had committed the crime when affected by drugs, and referred to the applicant's traumatic experiences in Iraq, and his resort to drug use. Her Honour accepted that the applicant was remorseful, and that he was committed to his rehabilitation.
She allowed a discount on the sentence that would otherwise have been imposed in recognition of the utilitarian benefit of the early entry of a plea of guilty.
Referring to the co-offender, the sentencing judge said: "His co-offender, it should be noted, has not yet been sentenced for his matters. His co-offender was successful in accessing the Drug Court Program. The offender tried twice to access that program but, due to no personal issue but rather his circumstance of serving a sentence and being rejected on the first occasion, he was rejected on both occasions." (ROS 10)

The Proposed Appeal

The applicant sought to advance two grounds of appeal: 1. That he has a justifiable sense of grievance due to the marked disparity between his sentence and the sentence imposed on his co-offender, Yahyah Aili; and 2. The overall sentence is manifestly excessive.

Ground 1: Sentence Disparity

The applicant asserts that he has a justifiable sense of grievance given the marked disparity between the sentence imposed upon him and that initially fixed upon the co-offender in the Drug Court sentence proceedings. He complains that the unfairness is compounded by the fact that the indicated sentence for the co-offender, in addition to being shorter than that imposed upon him, was suspended due to participation in the Drug Court program.
The Crown submits that the respective cases of the applicant and the co-offender were different, with the differences explaining and justifying the disparity in sentence. Additionally, the Crown contends that the co-offender's participation in the Drug Court's rehabilitative program cannot give rise to a legitimate sense of grievance.
When sentence was imposed upon the applicant the co-offender had not been dealt with. At the hearing of this application the parties provided the Court with the Remarks on Sentence from the Drug Court, together with other documentary material that had been before the Drug Court.
The co-offender was before the Drug Court for initial sentence on 30 April 2015, for the current offence and others not shared with the applicant. An aggregate sentence was imposed, as noted at [9] above. Taking into account the related steal from person offence, the Drug Court fixed the indicative sentence for this offence as one of 2 years and 3 months imprisonment. The sentence was suspended as a consequence of the co-offender's participation in the Drug Court program.
In determining the indicative sentence the sentencing judge referred to the sentence imposed upon the applicant, and noted that the applicant had a "more serious" record than did the co-offender (ROS 4), and was a "more serious offender" (ROS 5).
The co-offender also received the benefit of a 25% discount on sentence in recognition of his early plea of guilty (the starting point for the indicative sentence being thus 3 years imprisonment).
The court's conclusion in relation to the respective criminal histories of the two offenders was correct, and it represents a significant difference in the cases of each. In particular, the applicant was subject to conditional liberty at the time of the commission of the present offence, a matter of aggravation pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act, as the sentencing judge noted. That distinction alone is sufficient to warrant the difference in sentence (of nine months) between the head sentence imposed upon the applicant and that imposed upon the co-offender, no non-parole period having been set in relation to him, in accordance with s 7A(4) of the Drug Court Act 1998 (NSW).
As was observed in Wong v The Queen; Leung v The Queen [2001] HCA 64 at [65]; (2001) 207 CLR 584 at 608: "To focus on the result of the sentencing task, to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice. Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." (per Gaudron, Gummow and Hayne JJ, emphasis in original)
In the applicant's case, the reason that supports the result is his greater criminal history, and the fact that he, unlike the co-offender, was subject to a bond to be of good behaviour when he committed this offence.
The remaining matters of which the applicant makes complaint, that the co-offender received a suspended sentence with access to rehabilitative programs, whilst he did not, is also explained by a relevantly different feature, that being the co-offender's acceptance to the Drug Court.
On two separate occasions, 20 November 2014 and 26 March 2015, the applicant was referred to the Drug Court Program pursuant to s 6 of the Drug Court Act. Where there are more eligible applicants for entry to the Program than there are places on it, entry is determined by ballot. The applicant was not selected in the ballot, and he was unsuccessful in gaining entry to the Program. The co-offender was selected and was dealt with in that jurisdiction.
Sections 44-48, 50, 51 and 51A of the Crimes (Sentencing Procedure) Act do not apply to a person convicted and sentenced under s 7A of the Drug Court Act and, to that extent, individuals sentenced in the Drug Court are dealt with in a different way to persons sentenced in other courts.
The sentencing procedure followed in the Drug Court is quite different to that followed in more conventional courts. Once satisfied of an offender's eligibility (s 7A(2)(a)), and of a number of other matters set out in s7A(2)(b) - (g), the court proceeds to conviction and sentence. However, the execution of the sentence must be suspended and conditions imposed upon the offender relating to the rehabilitative program the offender is to enter: s 7A(5)(a) - (b).
Any sentence imposed pursuant to s 7A is an "initial sentence". No non-parole period is specified. The "final sentence" is determined pursuant to s 12 of the Act. The initial sentence may be set aside and another sentence imposed, as provided for by Part 2 of the Drug Court Act or the initial sentence may be confirmed: s 12(3)(a) - (b). The final sentence cannot exceed the initial sentence: s 12(4).
The co-offender had not, at the time of the hearing before this Court, been before the Drug Court for final sentence.
It must be accepted that sentences imposed by the Drug Court, whether they be initial or final sentences, may incorporate what may be perceived to be a significant measure of leniency. That is a consequence of the importance of achieving an offender's rehabilitation, consistent with the objectives of the statutory scheme under which the Drug Court operates. Section 3(1) of the Act provides for three objects: "3 Objects (1) The objects of this Act are: (a) to reduce the drug dependency of eligible persons and eligible convicted offenders, and (b) to promote the re-integration of such drug dependent persons into the community, and (c) to reduce the need for such drug dependent persons to resort to criminal activity to support their drug dependencies."
Due to the specific statutory objectives under which initial and final sentences are determined by the Drug Court, objectives that have no application outside that court, it is generally unproductive to attempt to make a direct comparison between a sentence imposed in that jurisdiction and a sentence imposed in another court. Such an exercise is not dissimilar to making a comparison between a sentence imposed for a particular offence in the Children's Court and a sentence imposed for the same offence in the Local Court. The parity principle in those circumstances could have little or no application. It must similarly have little or no application in circumstances where the complaint of disparity, as here, focuses on the suspension of sentence pursuant to s 7A(5)(b) of the Drug Court Act, and the access given to a co-offender to a rehabilitation program.
For persons who satisfy the criteria for eligibility to the Drug Court, as the applicant and his co-offender did, admission to the Drug Court Program is to some extent a matter of chance. For example, r 4 of the Drug Court Regulation 2015 (NSW) provides that only persons whose usual place of residence falls within specified local government areas can be eligible for acceptance by the court. It is simply not open to offenders who happen to live outside the nominated areas to seek access to the Drug Court. Similarly, even if an offender meets all of the requirements for acceptance to the Drug Court program, there may be insufficient places available on any given week, and an individual may not be selected in the ballot process which is then employed, provided for by Policy 12 of the Drug Court Policies, as in force from time to time.
As Basten JA observed in Scicluna v R [2008] NSWCCA 24; (2008) 181 A Crim R 133, at [10] (Barr J agreeing): "It follows that it is not the diversion into a rehabilitation program which is to be compared, for the purposes of parity in sentencing, with the imprisonment imposed on a co-offender. The legitimate comparison is between the initial sentence imposed in accordance with the Sentencing Procedure Act and the sentence imposed on the co-offender. The fact that one co-offender is eligible for the program because of drug dependency, whilst another is not, may itself have consequences for the relevant comparison; nevertheless, it is the equivalent sentences under the Sentencing Procedure Act which must be compared."
One can readily understand that the applicant could feel aggrieved that his co-offender, through the happenstance of being both eligible for the Drug Court program, and selected for one of the limited available places by ballot, received an apparently better outcome than him. However, the sense of grievance necessary to attract the intervention of this Court is measured by objective criteria, without reference to the feelings of the person aggrieved: Green v The Queen; Quinn v The Queen [2011] HCA 49 at [31]; (2011) 244 CLR 462.
The apparently better outcome for the co-offender through his participation in the Drug Court program must be set aside, and the comparison for the purposes of determining a parity ground is to be made between the initial indicated sentence of 2 years and 3 months imprisonment fixed for the co-offender (final sentence not having been determined), and that of 3 years imprisonment for the applicant. The divergence in those sentences is readily explained by the differing criminal histories of each.
This ground is not made out.

Ground 2: Manifest Excess

It is noted at the outset that the second of the two grounds advanced by the applicant is inconsistent with the first ground, grounds of this nature having been previously held to be contradictory: England v R; Phanith v R [2009] NSWCCA 274 at [22]; McMullen v R [2013] NSWCCA 261 at [49]; Loh v R [2013] NSWCCA 339 at [41]. A parity ground accepts that the sentence is otherwise appropriate; a manifest excess ground argues that the sentence is unfair and unjust. The two grounds do not comfortably sit together.
As is oft stated, to establish a complaint of manifest excess the applicant must demonstrate that the sentence was "unreasonable or plainly unjust": R v Dinsdale [2000] HCA 54 at [3]; (2000) 202 CLR 321 at 325. This has to be established in a context where there is no single "correct" sentence, and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach.
The question for this Court is whether the length of the sentence is demonstrated to be outside the range of sound sentencing discretion. In determining whether a sentence is manifestly excessive it is necessary to examine the result through the prism of the maximum prescribed penalty, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The maximum penalty specified for an offence contrary to s 112(2) of the Crimes Act is 20 years imprisonment. A standard non-parole period of 5 years attaches to the offence. Those were the statutory guidelines to which the sentencing judge had to have regard.
Her Honour assessed the matter as falling between the low range and the mid-range of gravity for offences of this nature, an assessment with which the applicant takes no issue.
The applicant's personal circumstances were given careful attention by the sentencing judge, with her Honour finding (favourably to the applicant) that he was remorseful, and determined to undertake drug rehabilitation. She also concluded that he needed assistance to come to terms with his experiences in Iraq. Reflecting those conclusions, the sentencing judge found that special circumstances existed pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act. She varied the non-parole period from the statutory norm of 75% to a very considerable extent, with the non-parole period of 15 months representing less than 42% of the total term imposed. That is a considerable measure of leniency.
Further leniency was inherent in the commencement date specified for the sentence, in that there was a degree of concurrency allowed to the applicant with unrelated sentences imposed in another court, in circumstances where the principle of totality did not require concurrency, and the criminality of the offences was wholly separate.
The applicant's crime involved forcible entry into another person's home, causing damage to the premises in the process. The offenders stole a considerable quantity of valuable items, with some of the property treated with such disregard as to be later thrown away or burnt. None of the stolen property was recovered. When the offender's criminal history for dishonesty and the conditional liberty to which he was subject at the time is also taken into account, I do not conclude other than that the sentence imposed by the sentencing judge reflects the proper exercise of the sentencing discretion.
I am unable to conclude that the sentence was unreasonable or plainly unjust. Indeed, particularly having regard to the structure and commencement date of the sentence imposed by her Honour, it may be regarded as mercifully lenient.
This ground is not made out.

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Drug Court Regulation 2015(NSW)

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