Ground 2: The sentencing Judge failed to adequately reflect his finding of "special circumstances" in the sentences imposed.
Ground 3: The sentence was manifestly excessive.
Facts
7 The sentencing Judge found the following facts (ROS 2-5):
"…The victim, Bruno Daniele, in 2006 advertised his vehicle bearing New South Wales registration plates AIV16F for sale on the Internet site www.carsales.com.au . The vehicle AIV16F was a black Honda Prelude and bearing VIN number JHBB6150YC200255 (sic).
On 3 October 2006 a black Honda Prelude, bearing New South Wales registration plate AZPO8W was sold at auction to the offender, Hassan Trad, by Pickles Auction Group in Canberra. This vehicle was sold with heavy panel damage and light structural damage to the front. The VIN number for that vehicle, AZPO8W is JHBB6140XC200069 (sic). This vehicle was not driveable and was transported to Sydney by Hassan Trad.
On 4 October 2006 the offender, Hassan Trad, contacted Bruno Daniele on his mobile phone and informed him that he was interested in purchasing vehicle AIV16F. Over the next twenty-four hours the offender again contacted Bruno Daniele numerous times in efforts to arrange a viewing time and a location.
Finally, the offender and victim, Bruno Daniele, arranged to meet at the Readings Cinema carpark Auburn at 8.30pm on 4 October 2006.
Around about 8pm the victim, Bruno Daniele, along with his brother in-law, Adrian Miano (victim number two) attended Readings Cinema carpark Auburn in vehicle AIV16F. Whilst waiting Bruno Daniele received several other phone calls from Mr Trad on his mobile phone informing him the offender was running late.
At about 8.25pm the offender, together with four other unknown male co-offenders, approached Daniele and Miano who were both standing directly next to their vehicle AIV16F. The offender and Daniele and [Miano] engaged in conversation about vehicle AIV16F and its condition.
While the offender inspected the vehicle the tallest co-offender, male, has produced what appeared to be a firearm and pointed it at point blank range into Daniele's ribcage. This is offence number one, robbery in company. The offender reached into Daniele's left pants pocket and took the vehicle's, AIV16F, main keys and spare keys and a V3I Motorola mobile telephone.
The second offence of robbery in company, the second matter on the indictment, is at the same time when three other co-offenders have demanded the mobile phone and wallet of Miano, who is victim number two. Mr Miano handed the co-offenders his Nokia N70 mobile phone and a wallet containing $100 and personal cards.
Offence number three is the car-jacking. The offender has entered the vehicle AIV16F and occupied the driver's seat. Both victims were directed by the co-offender, pointing what appeared to be a firearm, to walk away from the vehicle and not look back. The offender, together with several co-offenders, has driven the vehicle AIV16F away from the cinema carpark.
Offence number 4 is re-birthing. Between 5 October 2006 and 5 November 2006 the offender had interfered with the unique identifiers of vehicle AZPO8W by cutting the VIN numbers JHMBB6140XC200069 off the chassis and removed the compliance plates, manufacture plates, registration and registration plates.
The offender has added these unique identifiers belonging to the vehicle AZPO8W onto vehicle AIV16F and indeed it came out that the engine from AZPO8W was also inserted into the vehicle AIV16F. Examination revealed that the metal plate with VIN Number JHBB6140XC200069 (sic) was welded on top of the original chassis VIN number JHBB6150YC200255 (sic). These were shown again in photographs in the exhibits. The offender, as I said, also replaced the engine of AIV16F with the engine from AZPO8W.
The fifth offence on the indictment, receiving, took place on 5 November 2006. The offender sold the vehicle AIV16F (fraudulently imitating vehicle AZPO8W) to Mr Charbal Boustani for the amount of $15,000. This vehicle was stolen from Boustani's home address and located burnt out several hours later. Mr Boustani gave evidence, and indeed it was referred to again this morning by the Crown that Mr Boustani did not have an opportunity in that short time to insure the car and therefore has suffered a loss and makes a claim for that loss."
Subjective Circumstances
8 During the proceedings on sentence the appellant gave evidence and the written material which was tendered included a report dated 24 March 2008 from John Jacmon, a psychologist, and a character testimonial.
9 The appellant was born on 19 February 1986 and was 20 years old at the time of the offending. His criminal record commenced in 2006 when he was convicted of common assault in the Local Court and placed on s 9 bond to be of good behaviour for 12 months commencing on 2 March 2006. Other convictions include goods in personal custody and carrying a cutting weapon for which fines were imposed.
10 The psychologist's report recorded the appellant's background. He was born in Sydney to parents who had migrated from Lebanon. He had two brothers and two sisters and grew up in a warm, supportive family environment. He completed year 12 at Homebush Boys High and obtained a UAI which enabled him to attend university. He did so for about a month and then left to study for a TAFE finance and banking diploma. He had completed about half of the course by the time of his being taken into custody for the present offences. Whilst studying he worked at a call centre for the National Australia Bank. The psychologist detailed the appellant's relationship with his girlfriend which had become "rocky" because of her possessiveness of him. The psychologist opined that at the time of the offences "depression and anxiety at clinically significant levels appeared to have been markedly impairing [the appellant's] daily functioning at the time of the incident. The impairment is likely to have existed since his relationship began to sour well before the incident." Symptoms included difficulties in concentration, memory, problem solving and decision making. The psychologist noted the appellant's sadness at the distress the offending had caused his parents and the loss of his career in banking. He had resolved to turn his life around and prepare himself for integration into the community as a productive and law abiding citizen.
11 During his testimony before the sentencing Judge the appellant said that what he had told the psychologist was truthful. He denied that he had freely participated in the crimes for which he was being sentenced. Following cross-examination of the appellant by the Crown advocate, the sentencing Judge concluded that the appellant's "rocky relationship with his fiancée" was not a causative factor in his offending.
12 It had been the appellant's evidence before the jury that he had no involvement in the robberies and car-jacking being counts 1 to 3. He had met a person called Harry or Hamad who sold him the first vehicle as part of an "insurance job". He had subsequently sold the vehicle to Mr Boustani. In that context, he admitted interfering with the unique identifiers belonging to the second vehicle but denied involvement in any of the other offences.
13 The sentencing Judge in his remarks on sentence said (ROS at 10):
"I agree that the offences on his record are relatively minor, however, it is not so minor that I could extend leniency because of that fact."
14 His Honour found (ROS at 10):
" … there are special circumstances to do with his youth and also this will be the first time he will spend some time in custody."
Dealing with the appeal
15 The principal complaint in the first ground of appeal is that the sentencing Judge erred in characterising the car-jacking offence as being in the mid-range, particularly having regard to the fact that neither actual violence was used nor was there evidence of an actual firearm being involved.
16 In written submissions to the sentencing Judge the Crown had contended that whilst there was no evidence that the weapon used was in fact a firearm, the weapon nevertheless fell within the definition of an offensive weapon and was relied upon by the Crown as an additional circumstance of aggravation.
17 The attention of this Court was drawn by the parties to what was said by Howie J (with whom Basten JA and Hall J agreed) in R v Barker, R v Gibson [2006] NSWCCA 20 when the offence of aggravated car-jacking was considered. Howie J said at [63]-[64]:
"It seems to me that for an aggravated offence involving the offender being in company the following factors may be relevant to an assessment of the objective seriousness of the offence: whether the offence was planned; the number of persons involved in committing the offence and their conduct; the type of threats made; the degree of violence displayed; the number of persons in the vehicle at the time of the offence; the degree of fear instilled in the victim; the period over which the vehicle is used; damage to the vehicle (if not giving rise to a separate charge); the place and time the offence is committed (for example whether at night or in an isolated area); the special vulnerability of the victim; and the motive for the commission of the offence. The list is not intended to be exhaustive. Although counsel referred to the value of the vehicle, I doubt that is a relevant consideration where there is no intention to permanently deprive the owner of the vehicle.