Vai v R

1. The applicant seeks leave to appeal against the aggregate sentence on the sole ground that it is manifestly excessive.

Facts

1. Surveillance devices fitted to a car driven by Dan Manu revealed reconnaissance had been carried out earlier in the evening of Thursday 10 May 2012 by him and Anthony Taufahema to identify a target for an armed robbery. They then drove to the applicant's home and from there the three proceeded to the Hunters Hill Club, arriving at about 9.00pm. They watched the club for a period of time, noting the activities of people and vehicles in the area. After some discussion about how best to successfully carry out the robbery, the applicant and Taufahema alighted while Manu remained in the car with the engine running.
2. The applicant and Taufahema entered the club at about 9.30pm. They were wearing gloves, long clothing and face coverings and were carrying bags. Taufahema was armed with a tomahawk-style axe which he used to smash glass panels in order to force entry. The applicant was armed with a .22 calibre rifle. The judge was not satisfied beyond reasonable doubt that the rifle was loaded; nor was he satisfied on the balance of probabilities that it was unloaded.
3. The applicant and Taufahema confronted patrons with their weapons. Taufahema ran to the main bar where he struck a 45 year old patron with his shoulder, causing the patron to go to the ground. The applicant pointed his rifle in the direction of several of the patrons. Taufahema jumped over the bar and chased three staff members with his axe raised. The staff members ran to the safe room and locked themselves in. Taufahema put his axe into the safe room door but could not gain access.
4. The applicant remained in the main room threatening patrons with his firearm. He yelled, "Get on the ground" and "hand over the bags". Patrons went to the floor, kneeling or lying. The applicant held the gun inches from the patrons' heads.
5. As a result of his threats and demands, four middle-aged to elderly patrons handed over their personal property. These victims had been attending a farewell dinner with approximately 20 ladies from the local high school canteen.
6. Taufahema re-joined the applicant and they ran out of the club through the smashed door. They were driven away by Manu. A live .22 calibre round was subsequently found on the floor in the area where the applicant had pointed his rifle at the back of a patron's head.
7. The three offenders were driven to the home of Khaled Al Khaldi who was given the clothing and the weapons to conceal or dispose of.

The applicant's personal circumstances

1. The applicant, who did not give evidence in the sentencing proceedings, was almost 20 years of age at the time of the offences. He was born in New Zealand and came to Australia with his family in 1997. The Community Corrections Officer who prepared a Pre-Sentence Report recorded that he maintained close relations with his parents and siblings. He had been in a relationship for more than two years and he described it as a close and supportive one.
2. The applicant has an extensive criminal history for someone so young; the judge described it as "considerable" and said that it warranted greater emphasis being given to personal deterrence.
3. The applicant first encountered the criminal justice system in 2006 when he received a suspended control order for an offence of aggravated robbery. The sentence was reduced on appeal to a year's probation. He received another year's probation the following year for possessing car breaking implements. In breach of that probation he then committed offences of assault occasioning actual bodily harm and assault for which he received suspended custodial terms. He breached the conditions of his suspended sentence bond and received a term of juvenile detention. In the same court appearance he was dealt with for offences of resisting a police officer, damaging property and having suspected stolen goods in his custody, for which he received a nominal penalty, but also for an offence of affray for which he received detention for 10 months with a non-parole period of 4 months. Whilst on parole, the applicant committed offences of resisting and assaulting a police officer and he received 3 and 4 month terms of detention.
4. On 8 February 2011 the applicant was sentenced to imprisonment for just over 4 years with a non-parole period slightly exceeding 2 years for an offence of assault with intent to rob whilst armed. This involved an attempted robbery at a licensed club where staff and patrons were threatened with weapons and money was demanded. It was committed whilst the applicant was on bail and parole. An offence of break and enter with intent in circumstances of aggravation (being armed) was taken into account. This sentence dated from 19 December 2009 and was ordered to be served in a juvenile detention centre.
5. While on parole in respect of the above matter the applicant committed two offences concerning the supply of drugs. It was after the commission of those offences but before he was charged, and whilst he was still on parole that the Hunters Hill Club robberies were committed.
6. The applicant was arrested on 16 May 2012. His parole was revoked and he was required to serve the balance term of 1 year 8 months 17 days from 17 May 2012 until 2 February 2014.
7. On 28 April 2014 he was sentenced in respect of the drug supply matters to a fixed term of imprisonment for a year dating from the day of imposition.
8. At the date of sentencing for the index offences (26 May 2014), the position was that the applicant was subject to the drug supply sentence until 27 April 2015. Moreover, the period of pre-sentence custody from 16 May 2012 until 2 February 2014 had involved him serving the balance of parole in respect of the robbery sentence from 2011. The only period of pre-sentence custody not referrable to either of those other sentences was from 3 February to 27 April 2014; a period of just under 3 months.
9. The judge discussed in detail in his sentencing remarks the competing submissions of the Crown and the applicant in relation to the question of back-dating the sentence. In the end, he determined to commence the aggregate term from 1 July 2012. This had the effect of completely subsuming the 1 year sentence for the drug supply matters as well as all but 45 days of the 1 year 8 month 17 days the applicant was required to serve as the balance of parole for his earlier robbery sentence.
10. The Community Corrections Officer noted that the applicant's response to parole in the four months prior to his arrest for the present matters was "poor as he displayed intimidating behaviours towards Community Corrections staff and was resistant to program participation to address his anger issues". She also noted that he had subsequently exhibited in the correctional environment "aggressive and threatening behaviours towards custodial staff" and had a "history of pugnacity" towards them. The officer assessed the applicant as presenting a "medium risk of re-offending".

Some findings by the sentencing judge

1. The judge accepted submissions that no-one was significantly injured in the robberies and (to my mind, surprisingly) that there was no ongoing psychological trauma because there was no evidence of it. (It might have been readily inferred that there was such trauma when patrons had a masked bandit forcing them to the floor and presenting a rifle within inches of their heads. It would have been a horrifying experience that would likely never be forgotten.)
2. The judge accepted that the applicant was involved in planning for the robbery, although he acknowledged that he did not take part in the earlier reconnaissance.
3. His Honour took into account that the applicant was still very young and had family support with a close-knit family visiting him in gaol. He was also being supported by his partner with whom he was in a close relationship. He accepted that the leniency often afforded to young offenders "does come into play to some degree in these sentences".
4. The applicant had some disciplinary offences noted on his custodial record which prompted the judge to say that his response to custody had not been entirely satisfactory; a matter relevant to his rehabilitation prospects. The offences included assaults, intimidation and fighting.
5. The judge accepted a submission that there were special circumstances warranting a longer period of parole on the basis that the applicant would benefit from a longer period of supervision in the community.
6. On the question of concurrency, accumulation and totality, the judge said: "Mr Buckman submitted that the offender Vai's sentences should be concurrent, having regard to the principle of totality. I indicated that I proposed limited accumulation to provide distinct punishment for the offences but recognising that they are part of the same criminal episode at the same time and place. Mr Buckman submitted that I should not do that, and that all the offences were committed within a very short period in one episode of criminality, and that concurrent sentences were appropriate. I disagree with that submission."
7. The judge accepted a submission by the Crown that the applicant had a history of violence and of habitually breaching court orders. He also accepted that the present offences were aggravated by virtue of having been committed four months after the applicant had been released on parole.
8. His Honour accepted the Crown's submission that the robberies were worse than the typical case described in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. The reasons for this included that the offences were contrary to s 97(2), not s 97(1), for which there was prescribed a higher maximum penalty; that there were two weapons used; that the weapons were not merely present at the time but were used to threaten the patrons; that there were a number of other patrons present in addition to those who were specific victims; that the staff of the club were vulnerable; and that there was substantial planning and premeditation. The judge concluded that the criminality in the offences was "mid-range".
9. The judge also accepted a Crown submission that the applicant had committed similar offences in the past so he would have been aware of the consequences. However, he concluded that the applicant had "reasonable prospects of rehabilitation depending on the outcome of programs" he would recommend be undertaken both in prison and on parole. He also considered that he had "reasonable" prospects of not re-offending.
10. The applicant was not considered to have shown any remorse; he had denied the offences but had been convicted at his trial. He maintained his innocence to the Community Corrections Officer.

Determination

1. Counsel for the applicant contended that the aggregate sentence is manifestly excessive. He argued that this was a result of excessive indicative sentences and an excessive degree by which they were notionally accumulated. The latter was said to be particularly so given the offences occurred over a very short period of time and were part of the one criminal episode.
2. These submissions were maintained in oral argument by counsel who did not prepare the written submissions. It was also contended that error occurred in the setting of the non-parole period because it was of a different proportion to the head sentence to the proportions adopted for the indicative sentences. The short answer to that is that specifying non-parole periods for the indicative sentences was an unnecessary and fruitless exercise: see JM v R [2014] NSWCCA 297 at [39] (proposition 7). I do not understand why his Honour did so, and I do not understand the proportions he chose to adopt.
3. The applicant had youth and family support in his favour. He had guarded findings as to his rehabilitation prospects. There was nothing else in his subjective case that operated in mitigation. His criminal history, including matters of violence and persistent breaches of conditional liberty, warranted significant emphasis being given to personal deterrence.
4. The primary question is whether the aggregate sentence is unreasonable or plainly unjust when regard is had to the totality of criminality involved as well as to the matters just mentioned that stood in the applicant's favour. In my view the answer must be firmly in the negative.
5. It must be borne in mind that the maximum penalty for 5 out of the 6 offences is imprisonment for 25 years. They involved a planned and very violent invasion of a licensed club by two armed and masked offenders with another waiting outside. There were multiple mature-aged patrons who were confronted with what must have been a terrifying experience. Victims were forced by the applicant to kneel or lie on the floor and had a rifle presented to their heads while being forced to hand over items of personal property. Staff were confronted by the co-offender wielding an axe as he leapt over the bar and pursued them.
6. Without any discount that might have been afforded if there had been pleas of guilty, the aggregate sentence of 10 years for the series of offences, albeit in the one robbery enterprise, is hardly one that the applicant should be heard to complain about. This is particularly so when he had a terrible history for a person of his age for violence and had only recently been released on parole in respect of an earlier but similar robbery. He remained unrepentant and had guarded prospects of not re-offending in the future. The sentence was clearly one that was within the legitimate range of the judge's sentencing discretion.
7. This proposed appeal is, in my view, utterly devoid of merit. It could be characterised as "unarguable or frivolous". That brings into consideration s 18 of the Criminal Appeal Act 1912 (NSW) which is in the following terms: "18 Certain time to count as part of appellant's sentence (1) (Repealed) (2) The time during which an appellant is at liberty on bail (pending the determination of his or her appeal) does not count as part of any term of imprisonment under the appellant's sentence. (3) The time during which an appellant is held in custody counts as part of any term of imprisonment under the appellant's sentence. However, if the court is satisfied that the appeal was unarguable or frivolous, the court may order that the time in custody does not count."
8. It used to be the default position that time served pending the hearing of an appeal did not count unless the Court ordered. For the manner in which the Court applied that provision, see the observations of Gleeson CJ in R v Costache (Court of Criminal Appeal (NSW), 13 November 1990, unrep) as well as R v Cuthbertson [1974] 1 NSWLR 672.
9. This was raised with counsel for the applicant at today's hearing. It was acknowledged that the Court has not, to my knowledge, applied s 18 since it was amended by the Courts Legislation Further Amendment Act 1995 (NSW).
10. The Court should not do so in the present case because there was no prior warning that it might do so. However, practitioners should be aware of the possibility the Court might do so in a similar case in the future.

Order

1. I propose the following order: Leave to appeal against sentence refused.

Amendments 02 December 2015 - [2] section amended 14 December 2015 - Coversheet: correction of applicant's solicitors DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2015