Wilson v R

Court of Criminal Appeal (NSW)|2008-09-26|Before: Beazley JA, Hislop J, Price J

JUDGMENT OF: Beazley JA at 1; Hislop J at 2; Price J at 3

DECISION: Leave to appeal granted. Quash the sentence imposed in the District Court for the offence contrary to s97(1) of the Crimes Act. Quash the parole order and conditions of parole made by the sentencing judge. For the offence contrary to s97(1) of the Crimes Act (including the matter on the Form 1) sentence the applicant to imprisonment with a non parole period of 4 years 6 months commencing on 3 February 2007 and expiring on 2 August 2011 with a balance of term of 2 years commencing on 3 August 2011 and expiring on 2 August 2013. The earliest date upon which the applicant will be eligible for release to parole is 2 August 2011.

House v The King (1936) 55 CLR 499 R v Cramp [2004] NSWCCA 264 R v Fidow [2004] NSWCCA 172 CASES CITED : Webster v R [2006] NSWCCA 346 Postiglione v The Queen (1997) 189 CLR 295 R v Kollas & Mitchell [2002] NSWCCA 491 R v Kairouz [2005] NSWCCA 247

COUNSEL: C. Loukas (Applicant) P.G. Ingram (Crown)

SOLICITORS: Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/3027

BEAZLEY JA HISLOP J PRICE J

20 October 2008 Darren Brian Wilson v R Judgment 1 BEAZLEY JA: I agree with Price J. 2 HISLOP J: I agree with Price J. 3 PRICE J: Darren Brian Wilson, the applicant, seeks leave to appeal against the severity of the sentence imposed upon him in the District Court at Parramatta on 19 April 2007 by Bennett DCJ (the sentencing Judge). 4 The applicant had adhered in the District Court to a plea of guilty entered in the Local Court to a charge that he on 31 October 2006 at Summer Hill did rob Rachel Wong, Andries Sadiq and Priya Kataria of certain property, to wit a sum of Australian currency the property of the Commonwealth Bank of Australia whilst being armed with an offensive weapon, to wit a shortened non-functioning shotgun contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for such an offence is 20 years imprisonment. 5 A plea of guilt had also been entered in the Local Court to a charge that he on 3 November 2006 without the consent of Kwang Jin Seo, the owner of a conveyance, to wit a 1990 Ford Falcon station wagon registered number AWR-17U, did take and drive the said conveyance. The applicant in the District Court adhered to his plea to this charge which was an offence contrary to s 154A(1)(a) of the Crimes Act. The maximum penalty for this offence is 5 years imprisonment. 6 One matter on a Form 1 was taken into account on sentence for the s 97(1) offence, namely that he on 31 October 2006 at Summer Hill allowed himself to be carried in a motor vehicle that had been taken without the consent of the owner contrary to s 154A(1)(b) of the Crimes Act, the maximum penalty for which is 5 years imprisonment. A charge of unlicensed driver contrary to s 25(2) of the Road Transport (Driver Licensing) Act 1998 was also before the Judge by way of a certificate pursuant to s 166 of the Criminal Procedure Act 1986. 7 The applicant was sentenced to imprisonment with a non-parole period of 1 year 6 months commencing on 3 November 2006 and expiring on 2 May 2008 and a balance of term of 6 months commencing on 3 May 2008 and expiring on 2 November 2008 for the s 154A(1)(a) offence. For the robbery whilst armed with an offensive weapon, a non-parole period of 4 years 9 months commencing on 3 February 2007 and expiring on 2 November 2011 with a balance of term of 1 year 9 months commencing on 3 November 2011 and expiring on 2 August 2013 was imposed. The overall effective sentence was 6 years 9 months with a non-parole period of 5 years. 8 The sentencing Judge informed the applicant that he would be eligible for release to parole on 3 November 2011 and that his parole would be subject to the four conditions, namely; within seven days after his release he was to report to the nearest office of the Probation and Parole Service; that he was to be assessed for admission to an appropriate residential rehabilitation program to address his long term use of drugs and alcohol and to submit himself to the appointed program; that he was to obey all reasonable directions of those responsible for his supervision and management and to submit generally to the supervision of the Probation and Parole Service. 9 In sentencing the applicant the sentencing Judge had found that he was entitled to a utilitarian discount of 25 per cent for the plea of guilty to the offence of take and drive conveyance and, for the armed robbery, the discount was "slightly more" (ROS at 33). 10 The notice of appeal identifies four grounds: 1. His Honour erred in not adjusting the aggregate non-parole and parole period sufficiently for special circumstances after indicating there were special circumstances. 2. There is erroneous disparity between the sentence of the applicant and the subsequent sentence of El-Youssef. 3. His Honour erred in imposing a parole order and parole conditions. 4. The overall sentence imposed, as accumulated and taking into account totality and special circumstances is manifestly excessive. The offences 11 During the sentencing proceedings, an agreed statement of facts was tendered. A summary of the facts of each offence is derived from that document and the sentencing Judge's remarks on sentence. 12 The circumstances of the armed robbery were that the applicant and his co-offender Elie El-Youssef on the morning of 31 October 2006 loaded a stolen vehicle with a change of clothes, a replica pistol, and a shortened shotgun taken from the lodgings they shared at that time at Yagoona. El-Youssef drove the vehicle to Summer Hill with the applicant as the sole passenger. Having parked the vehicle outside the shop which adjoined the Commonwealth Bank at about 11.20am, El-Youssef entered the Bank armed with a small black replica pistol. The applicant had gone to the front of the bank and was holding the shortened shotgun that was in a bag. 13 El-Youssef menaced several bank tellers with the replica pistol. He said, "Do you see this gun and this bag. I want you to put all the cash in this bag. Don't make any noise or I'll shoot you." Two female tellers then placed a quantity of bank notes and coins and a covertly placed red dye bomb into a shopping bag. The applicant stood at the front door of the bank keeping the automatic doors open while El-Youssef was inside the bank and planned to prevent anyone from leaving it during the robbery apart from El-Youssef. El-Youssef grabbed an identity card worn by one of the bank staff but threw it back at her when she said she needed it for her work. The total amount stolen from the bank was $9,500. 14 The applicant and El-Youssef returned to the car and El-Youssef drove them away. The dye bomb exploded as they made their escape staining the money, clothing, the pistol and the interior of the car. 15 El-Youssef was arrested on 1 November 2006. Red stained bank notes in the sum of $4,055 were recovered by police upon his arrest. 16 The circumstances of the second charge were that the applicant was seen at 11am on 3 November 2006 driving a stolen Ford Falcon sedan in Belmore. He was arrested after he had parked the vehicle to enter Canterbury Hospital where he took a dose of methadone. The vehicle had been stolen between 9pm on 2 November and 8am on 3 November 2006 where it had been parked in Campsie. This offence was not connected with the robbery. 17 The sentencing Judge summarised the admissions made by the applicant to police in an electronically recorded interview as follows: "He told police that he believed the shortened firearm he was carrying was operational, which I take to mean capable of being discharged, but it was not loaded and he had no ammunition for it. He said that after the bomb had exploded he and El-Youssef attempted to remove the dye with methylated spirits. He said that some of the money was so badly damaged that it had to be destroyed. He received $3,100 from the proceeds. He converted his share of the stained money by inserting it into poker machines in various hotels and after playing for a short time called upon the staff to pay him the balance standing to his credit. In this way he was able to convert the majority of the money into clean bank notes. He told police that he had paid another person $500 to burn the stolen Mazda 929 on the day following the robbery. He provided the container of petrol and instructed that person to spread it throughout the interior of the car to make sure that it was totally destroyed. He did not know where this occurred and the car has not been located." Some remarks of the sentencing Judge 18 His Honour said that it was not entirely clear whether the applicant was holding onto the shortened shotgun in the bag or that he was carrying the bag which in turn contained the weapon. His Honour remarked that whatever might be the case, the applicant was present at the front of the bank with a shortened shotgun immediately at his disposal as a means of control over the bank staff and any patrons present. Although the weapon was capable of discharging live cartridges, the weapon, his Honour said, was unloaded and the applicant did not have ammunition for it. His Honour accepted that the applicant at no time produced the shotgun, however, found that he remained accountable for having the weapon with him and for the use made by his co-offender of the replica pistol. 19 The applicant at the time of the offending, the sentencing Judge observed, was subject to conditional liberty. On 28 September 2006 in the Local Court at Burwood, for an offence of receiving stolen property, he had been sentenced to imprisonment for 6 months which had been suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 upon his entering into a good behaviour bond for 6 months. When he committed the offences, the applicant was 40 years old. 20 The sentencing Judge described the applicant's criminal history as being "an extensive record of criminal antecedents." His Honour detailed some of the prior offences and noted that on several occasions sentences of imprisonment had been imposed. The custodial history of the applicant, his Honour noted, revealed 17 offences for breaches of discipline, however, there had not been any matters since his arrest. His Honour said this was of some significance for the approach to be taken to specific deterrence, particularly in the light of the opinions expressed by the psychologist Peter Ashkar in his report upon the progress made by the applicant mainly as to his use of drugs when in a controlled environment. 21 Extensive consideration was given by the sentencing Judge to the psychologist's report. His Honour noted that the applicant began experimentation with illicit substances, leading to the commission of criminal offences at the age of 17. In his Honour's assessment, the applicant had continued upon an evolutionary pattern of offending up to and including the present matters, albeit that he had chosen a more serious offence than the offences he had committed in the past. The sentencing Judge opined that without a structured environment in which the applicant was subject to a measure of control he was likely to slip back into his lifestyle of drug abuse and criminal misconduct. It was apparent, the sentencing Judge observed, that the applicant was making at least some initial progress towards his rehabilitation. 22 As to special circumstances, his Honour stated (ROS at 21): "It was said that there are special circumstances by reason of his longstanding drug problem which motivated his offending on this occasion and his need of ongoing support if he is to achieve rehabilitation. As I have said, he has not, in the past, demonstrated any great capacity to desist from offending and to persist with his rehabilitation, even with the support provided, by way of conditional liberty and the Drug Court program. However, I am persuaded that his long term use of drugs does provide special circumstances requiring a slight adjustment to the ratio between the non-parole and parole periods. I am of the view that the history disclosed in the material indicates that this offender requires special help to overcome his drug use and that this ought to include a condition of parole that he enter and persist with a residential rehabilitation unit for so long as it is deemed to be necessary - see Regina v O'Kane , unreported judgment of the New South Wales Court of Criminal Appeal, 9 March 1995." Dealing with the appeal 23 There are four grounds of appeal. The first asserts that the sentencing Judge erred in not adjusting the aggregate non-parole period sufficiently after indicating there were special circumstances. The Court's attention was directed by the applicant to the passage in his Honour's sentencing remarks which I have quoted at [22]. The applicant submitted that the overall sentence ultimately imposed of 6 years 9 months with a non-parole period of 5 years failed to adequately reflect his Honour's finding of special circumstances. 24 Section 44(2) of the Crimes (Sentencing Procedure) Act requires that the balance of the term of the sentence must not exceed one third of the non-parole period, unless the Court decides that there are special circumstances. The sentencing Judge having found that the applicant's long term use of drugs provided special circumstances requiring a slight adjustment to the statutory ratio reduced the non-parole period by three weeks. Without this adjustment for special circumstances, the balance of the term of the overall sentence would have been 1 year 8 months and 1 week instead of 1 year 9 months. 25 It is evident that this small adjustment was made by his Honour deliberately and it did not result from some arithmetical miscalculation as his Honour said (ROS at 27): "I accept that there are special circumstances in this case to the limited extent indicated earlier and they warrant a slight adjustment in the statutory ratio provided in section 44 of the Crimes (Sentencing Procedure) Act . The adjustment will not be great, however, for the overall sentence that is appropriate for the totality of the criminality demonstrated by the offender must be of such a length that the parole period ought to provide adequately for the offender's rehabilitation and re-socialisation." (italics added). 26 And (ROS at 39): "I am aware that the parole period is slightly greater than one-quarter of the overall sentence." (italics added). 27 It is well established that the size of an adjustment to the statutory ratio, special circumstances having been found, is an essentially discretionary one and not subject to appellate review other than by the principles set out in House v The King (1936) 55 CLR 499. As was observed in Regina v Cramp [2004] NSWCCA 264 per Spigelman CJ at [31] the size of an adjustment for special circumstances "raises so many matters of a discretionary character that this Court should be very slow to intervene". The Court will usually not intervene unless the non-parole period is found to be manifestly inadequate or manifestly excessive: see Cramp per Spigelman CJ at [36]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [19]. 28 It is difficult to discern from his Honour's otherwise assiduous sentencing remarks why he determined that a reduction of three weeks would appropriately reflect his limited finding of special circumstances. Such a small adjustment raises the question why a finding of special circumstances was made at all. The answer to this question, it seems to me, may be found in the third ground of appeal which asserts that there was error in the imposition of a parole order and parole conditions. 29 The Crown concedes that the sentencing Judge erred in making a parole order and in imposing parole conditions as the sentence imposed was greater than 3 years. This issue was considered in Webster v Regina [2006] NSWCCA 346 when Sully J (with whom Beazley JA and Hislop J agreed) said at [14]: "…it seems to me that the better construction of the provisions of, in particular, sub-section (1) of section 50 [Crimes (Sentencing Procedure) Act] is that whenever a Court imposes a sentence of imprisonment for a term greater than 3 years, then the legislation contemplates that the Court itself will not make a parole order, thus leaving the question of parole to be decided in due time by the relevant parole authority." 30 The parole order and the conditions of parole ordered by the sentencing Judge will be set aside. 31 From the passage in the sentencing remarks which I have quoted at [22], it appears that the sentencing Judge had in mind when making an adjustment to the statutory ratio that "special help" would be provided to the applicant to overcome his drug use by the conditions of parole which required entry into and persistence with residential drug rehabilitation. As his Honour could not, as he incorrectly believed, impose parole conditions, his determination of the size of the adjustment of the statutory ratio was founded upon wrong principle: see House v The King. 32 In my opinion, upon removal of the parole conditions imposed by the sentencing Judge, the reduction by three weeks of the non-parole period is so negligible that this Court should intervene to extend the time for supervision on parole to two years to give effect to his Honour's finding that a slight adjustment to the statutory ratio was warranted. 33 The second ground of appeal is that there is erroneous disparity between the applicant's sentence and the subsequent sentence of the co-offender El-Youssef. 34 El-Youssef came to be sentenced by Hulme DCJ on 14 March 2008. Upon arraignment, he had pleaded guilty to the following offences: 1. Robbery of a pharmacy on 27 September 2006. 2. Robbery of a delicatessen on 29 October 2006. 3. Stealing from the person on 30 October 2006.

Robbery whilst armed with a dangerous weapon at a bank at Summer Hill on 31 October 2006. 35 The fourth offence was the armed robbery which El-Youssef had committed with the applicant. For this offence the applicant had been charged with an offence contrary to s 97(1) of the Crimes Act whereas El-Youssef was charged with an offence contrary to s 97(2) of the Crimes Act. The maximum penalty for an offence contrary to subsection (1) was 20 years imprisonment and for an offence contrary to subsection (2) 25 years imprisonment. 36 Hulme DCJ was asked to take into account when sentencing El-Youssef for the fourth offence a further five offences listed on a Form 1 being two offences of stealing from the person, robbery whilst armed with an offensive weapon and an offence of robbery. Taking into account these matters, a sentence was imposed upon El-Youssef of 8 years 9 months comprising a non-parole period of 6 years and a balance of term of 2 years 9 months. Hulme DCJ indicated that without the plea of guilty the term of the sentence would have been 10 years. The Judge had indicated that a discount of 12.5% for the utilitarian value of the pleas would be given. A total effective sentence for all the offences for which El-Youssef was to be sentenced of 11 years with a non-parole period of 8 years 3 months was imposed. 37 The difference between the relative maximum penalties, the number and nature of the matters being taken into account on the Form 1 and the different utilitarian discounts gave rise, the applicant contended, to a justifiable sense of grievance. The Crown submitted that El-Youssef's sentence for the fourth offence was to be considered in the context of the different offences for which he was being sentenced by Hulme DCJ who had commenced the sentences upon the balance of parole that El-Youssef was then serving. Hulme DCJ, it was argued, set a sentence which was then partially ameliorated having regard to the principle of totality. The Crown argued that in any event the sentence imposed on El-Youssef was particularly lenient and this Court having regard to the seriousness of the offence contrary to s 97(1) with which the applicant was charged had very limited scope for intervention. 38 As the applicant came to be sentenced first, the sentencing Judge was not required to consider the issue of parity. The issue of parity arises as a consequence of the sentence imposed by Hulme DCJ who recognised that there were a number of significant differences between El-Youssef and the applicant that would make it inappropriate to impose the same sentence upon El-Youssef as had been imposed upon the applicant. The undiscounted starting point of the El-Youssef sentence for the s 97(2) offence was 10 years whereas for the applicant allowing slightly more than a 25 per cent discount for the plea, the undiscounted starting point for the s 97(1) offence was about 8 years 8 months. El-Youssef's non-parole period for the s 97(2) offence was 6 years which was 1 year 3 months more than the applicant's non-parole period for the s 97(1) offence. When partial accumulation of the other sentences imposed at the same time is considered, the actual time to be served by El-Youssef for the s 97(2) offence and the matters on the Form 1 was 4 years 6 months whereas the actual time to be served by the applicant for the s 97(1) offence and the matter on the Form 1 is 3 years 6 months. No adjustment was made in the statutory ratio by Hulme DCJ as special circumstances were not found. An adjustment of 3 weeks for special circumstances was made, as I have previously mentioned, by the sentencing Judge. 39 A sentence, which is otherwise appropriate or within the permissible sentencing range, which offends the principle of parity, should be reduced: Postiglione v The Queen (1997) 189 CLR 295; R v Kollas & Mitchell [2002] NSWCCA 491 per Wood CJ at CL at [45]. As was said by Dawson and Gaudron JJ in Postiglione at 301: "Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." This Court retains a discretion not to intervene where it is apparent that the sentence under comparison is unjustifiably lenient and that to do so would be to produce a sentence which is totally inappropriate to the objective criminality involved: Kollas & Mitchell at [45]; R v Kairouz [2005] NSWCCA 247 per Wood CJ at CL at [45]. 40 It was not submitted that the applicant's criminality in robbing the bank was any less than that of El-Youssef. The crime involved a joint criminal enterprise for which each was equally responsible. This was recognised by the sentencing Judge who found that the applicant remained accountable for the use made by his co-offender of the replica pistol. As the degree of criminality involved in committing the offence was the same, a complaint of disparity, it seems to me, founded upon different maximum penalties as a consequence of a prosecutorial decision to bring different charges does not have substance.

41 The principal difference in the circumstances between the co-offenders arises from the offences included on the Form 1 when El-Youssef was sentenced. The sentencing remarks of Hulme DCJ disclose the objective seriousness of those offences. The second offence on the Form 1 was committed by El-Youssef when he robbed a service station when armed with a rifle. El-Youssef threatened to shoot the console operator if the money was not handed over. This was a very serious offence. The circumstances of the fourth offence on the Form 1 were that El-Youssef robbed a supermarket having pushed the shop assistant onto a cash register before he grabbed notes totalling about $500. Offences one and three on the Form 1 were offences of stealing from the person. El-Youssef's criminality in committing the Form 1 offences was such that the sentence for the primary offence should have been significantly increased notwithstanding the advantages that the Form 1 procedure provides to the administration of justice and the recognition that the additional penalty would be significantly less than that imposed had separate charges been prosecuted. 42 Only one offence on a Form 1 being an offence of allowing himself to be carried in a motor vehicle without the owner's consent contrary to s 154(1)(b) of the Crimes Act was taken into account on the applicant's sentence. This was the motor vehicle which was used in the armed robbery. 43 For his additional offending, El-Youssef's non-parole period is 1 year 3 months more than that imposed upon the applicant. The difference in the actual time to be served as has been indicated at [38] is reduced to 12 months when partial accumulation is considered. In my opinion, such a limited difference in the sentences imposed on the co-offenders is disproportionate to the different degrees of criminality involved in the commission of the offences taken into account on sentence by way of the Form 1 procedure.

44 The question remains whether this Court should intervene and reduce the applicant's sentence notwithstanding that the sentence imposed upon him by the sentencing Judge was otherwise appropriate and within the permissible sentencing range, a topic which will now be considered. 45 The fourth ground of appeal asserts that the overall sentence was manifestly excessive. A number of sentences imposed in other cases was referred to by the applicant. None of those cases persuade me that the sentence in this case was manifestly excessive. 46 Reference was made by the applicant to sentencing statistics from the Judicial Commission which reveal that both the term of the sentence and the non-parole period imposed on the applicant for the s 97(1) offence are slightly above the 80th percentile in the reported data. 47 The assistance provided by these statistics is limited not only because sentencing is an individual exercise but also for the reason that there are different ways in which an armed robbery may be committed. In the present case, the applicant and his co-offender robbed a bank whilst each was armed with a firearm. An armed robbery of a bank is a very serious offence. Considerable weight is to be given when sentencing for such an offence to considerations of specific and general deterrence. The applicant's offending was aggravated by the fact that he was at the time subject to a term of imprisonment which was suspended. I do not think that the sentence was manifestly excessive. 48 Further consideration is to be given to El-Youssef's sentence. At the time of the commission of the armed robbery with the applicant El-Youssef was on parole. As Hulme DCJ said (ROS at 7): " Each of the offences on the indictment and Form 1 before me were committed between five and nine weeks after the offender had been released on parole in respect of the matters for which he was sentenced in 1998 and 2002/2006, he having been released on 20 August 2006. This is a serious aggravating feature and it is a matter of some concern that he has offended whilst on parole in the past." 49 His Honour detailed in his sentencing remarks El-Youssef's extensive prior criminal history which included terms of imprisonment in 1998 for offences of robbery in company which had been committed whilst on parole. His record disclosed sentences of imprisonment for offences of break, enter and steal, escaping lawful custody and assault with intent to take or drive a motor vehicle. He was aged 39 and 40 at the time of the offences for which he came to be sentenced by Hulme DCJ. Whilst his Honour may have had in mind the principle of totality when sentencing El-Youssef, the sentence for the fourth offence was, to my mind, unjustifiably lenient when the seriousness of the primary offence, the number and seriousness of the offences on the Form 1, the commission of the offences whilst on parole and El-Youssef's criminal history of similar offending is considered. 50 Intervention by this Court to remove the disproportion between the applicant's sentence and El-Youssef's sentence will produce, in my opinion, a result which is inappropriate to the objective and subjective criminality involved in the applicant's offending. This Court, in my view, should not do so. Ground 2 of the appeal has not been established. 51 As error has otherwise been identified, I am of the opinion that "some other sentence … is warranted in law and should have been passed": s6(3) of the Criminal Appeal Act 1912. 52 The orders I propose are:

(i) Leave to appeal be granted. (ii) Quash the sentence imposed in the District Court for the offence contrary to s 97(1) of the Crimes Act. (iii) Quash the parole order and conditions of parole made by the sentencing Judge. (iv) For the offence contrary to s 97(1) of the Crimes Act (including the matter on the Form 1) sentence the applicant to imprisonment with a non-parole period of 4 years 6 months commencing on 3 February 2007 and expiring on 2 August 2011 with a balance of term of 2 years commencing on 3 August 2011 and expiring on 2 August 2013. The earliest date on which the applicant will be eligible for release to parole is 2 August 2011. **********

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