Zreika v R

Court of Criminal Appeal (NSW)|2020-11-06|Before: Payne JA, Bellew J, Wright J

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2018/300774 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 26 November 2019 Before: Hunt DCJ File Number(s): 2018/300774

Judgment

PAYNE JA: I agree with Wright J.
BELLEW J: I agree with Wright J.
WRIGHT J: The applicant, Mr Mohammed Zreika, seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed on him by Hunt DCJ in the District Court at Lismore on 26 November 2019.

Background

On 19 March 2019, the applicant pleaded guilty in the Local Court at Lismore to two charges of robbery armed with an offensive weapon and one charge of attempted armed robbery. He was committed for sentence to the District Court, where the sentence proceedings were heard on 26 November 2019. On that date, the learned sentencing judge delivered his remarks on sentence and imposed an aggregate sentence of six years' imprisonment, commencing on 8 May 2019 and expiring on 7 May 2025, with a non-parole period of four years, expiring on 7 May 2023.
In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), Hunt DCJ recorded the sentences he would have imposed for each offence, had separate sentences been imposed instead of an aggregate sentence, as follows: Seq Offence Indicative sentence 1 Robbery armed with an offensive weapon contrary to s 97 (1) of the Crimes Act 1900 (NSW) for which the maximum penalty is 20 years' imprisonment. 4 years 2 Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act for which the maximum penalty is 20 years' imprisonment. 4 years 3 Attempted armed robbery contrary to s 97 of the Crimes Act for which the maximum penalty is 20 years' imprisonment by virtue of section 344A(1) of that Act. 5 years 3 months

A notice of intention to apply for leave to appeal was filed on 20 December 2019 and the notice of application for leave to appeal was filed within the extended time on 3 July 2020.

Grounds of appeal

The grounds of appeal on which the applicant seeks to rely are: "1. His Honour erred in failing to give effect to a finding of special circumstances; and 2. His Honour erred in fixing the commencement date of the sentence."
From these grounds of appeal, it can be seen that the sentencing judge's factual findings and conclusions as to the objective seriousness of the offending, the applicant's subjective circumstances and the length of the sentence are unchallenged. In these circumstances, it is unnecessary to refer to his Honour's sentencing remarks at length.

Remarks on sentence

The portions of the remarks on sentence relevant to the grounds of appeal are as set out in the paragraphs which follow.
Towards the beginning of his remarks, Hunt DCJ noted that it was common ground between the parties that: 1. the applicant had been in custody since 4 October 2018, which was described as "the first date on which any sentence could reasonably commence"; and 2. during the whole of the time between 4 October 2018 and 6 May 2020, the applicant would be subject to a fixed term of imprisonment for other offending.
The two armed robbery offences and the attempted armed robbery offence were committed on the night of 6 March 2018 in the residential part of a hotel in Casino. The applicant was armed with a pruning saw wrapped in a towel, which had the appearance of a gun. The applicant told the first two victims that he had a gun and that the third victim owed him $30,000. From one of those two victims he obtained an iPhone and a case containing a bank card and driver's licence and from the other a wallet. The applicant was attempting to enter the room where the third victim was when one of the first two victims managed to punch the applicant before he could rob the third victim. At which point, the applicant ran away. Closed-circuit television captured the applicant's car, which he had borrowed that night from the person with whom he was in a relationship, driving out of the car park. When police attended, various items were seized. In due course it was found that there was a match between the DNA on some of the relevant items and the applicant.
The applicant was eventually arrested on 3 October 2018 and charged.
The sentencing judge noted, among other things, that at the time of the offending, the applicant was 38 years old and was on conditional liberty as a result of a suspended sentence and probation imposed in Queensland. In addition, it was found that his record denied him leniency and he had never undertaken any extensive drug and alcohol treatment. His Honour took into account the applicant's statements of intention to submit himself to some more detailed drug and alcohol treatment and found that if the applicant applied himself to such treatment, either in custody or when he was released, his prospect of rehabilitation would definitely improve.

Special circumstances

As to special circumstances, Hunt DCJ said: "The Crown did not want to be heard against a finding of special circumstances and in the context of this man's record I take into account that he is at risk of institutionalisation. That is because he has had relatively short periods in the community between relatively increasing stretches of time in custody. I also take into account that he needs a longer period on parole to apply himself to drug treatment if that is what he chooses to do."
Later, when specifying the non-parole period in respect of the aggregate sentence, his Honour noted that he had "found special circumstances". Immediately after imposing the aggregate sentence, it was clarified that the Crown's submission had been that the sentencing judge was entitled not to find special circumstances. Hunt DCJ said in response: "I might have misunderstood that but in any event I determined to find it."
Since the aggregate sentence imposed was six years and the non-parole period was four years, it follows that the ratio of the non-parole period to the head sentence was 66.7%, instead of the statutory ratio of 75% prescribed by s 44(2B) of the Sentencing Procedure Act.

Commencement date of the sentence

As to the commencement date of the sentence, his Honour stated: "Both parties accept that the Court needs to exercise its discretion in terms of when to commence the aggregate sentence that I have determined to impose having regard to the fact that he is already serving a sentence for discrete matters. I have done my best away the competing priorities. … [after imposing the aggregate sentence and non-parole period] Mr Zreika, I could have backdated until 4 October 2018, I intentionally accumulated so that the sentence I have imposed starts a year into your sentence for the firearms matters. It has the effect that the sentence I have imposed today is six years with four years, which means that the total sentence is if you like, seven years with five years."
Taking into account the partial accumulation of the aggregate sentence imposed by Hunt DCJ on the earlier sentence for the firearms offences which was due to expire on 6 May 2020, the applicant's overall sentence amounted to seven years with an effective non-parole period of five years, which yields a ratio of 71.4%. It is obvious that this ratio is still below 75%.

Ground 1

The applicant's first proposed ground of appeal was that the sentencing judge had erred by failing to give effect to the finding of special circumstances.

Submissions

The substance of the applicant's submission in this regard was not that the non-parole period of 4 years imposed in respect of the 6 year aggregate sentence failed to give effect to the finding of special circumstances. Rather, it was that: "[t]he impact of the accumulation of the robbery offences upon the firearm offences was that the finding of special circumstances that is evident in the ratio of the non-parole period to the total term of the aggregate sentence of 66.6% was reduced to 71%. While this difference between the two different percentages might not seem significant, in real terms it means that the reduction from the 'usual' ratio of 75% became only reduction of some 3 months."
It was submitted that the sentencing judge: "cannot have intended for the ratio of the non-parole period to the total term to be undermined in the way that it was by the accumulation of the sentence upon that of the firearms charge."
The Crown contended that, in the circumstances of the present case, there was no error or inadvertence on the part of the sentencing judge. It was submitted that: 1. his Honour was well aware of the sentences for the firearms offences; 2. the applicant had submitted that the sentence to be imposed could commence anywhere from 3 October 2018 to 6 May 2018 and that the court would need to take into account the principle of totality; and 3. Hunt DCJ said that he "intentionally" accumulated the sentence he imposed by one year.
The Crown also submitted that there was no obligation on a sentencing judge to maintain the ratio of the non-parole period to the head sentence when there was another sentence being served by an offender and that where the adjustment said to be required was only three months, this amounted to no more than tinkering, as described in Caristo v R [2011] NSWCCA 7 at [43].

Consideration

A finding of special circumstances has significance as a result of the operation of s 44(2) and (2B) of the Sentencing Procedure Act. That section relevantly provides: "(1) Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). (2A) Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence. (2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). ..."
Section 44(2) and (2B) effectively establish that, in sentencing an offender for one or more offences, a finding of special circumstances is required before a sentencing court can depart from the statutory requirement that the non-parole period must not be less than 75% of the head sentence (the ratio of 75% is another way of expressing that the balance of the term should not exceed one-third of the non-parole period).
Section 44 has no direct application in relation to the combined effect of a sentence and non-parole period to which s 44 apply and time spent in custody as a result of a previously imposed sentence. A sentencing judge is not required, where there is an existing term of imprisonment, to perform a calculation to ascertain what proportion of the sum of the non-parole period and the period already spent in custody bears to the total term: Lonsdale v R [2020] NSWCCA 267 (Lonsdale) at [32] (Hoeben CJ at CL) and the cases there cited.
Nonetheless, it has been held that, ordinarily, where a finding a special circumstances has been made for the purposes of s 44(2) or (2B), and the sentencing judge is accumulating sentences and the overall non-parole period will be greater than 75% of the effective total term of the sentences, it is preferable that some express comment in the remarks on sentence makes it clear that the judge is aware of the impact of the accumulation: GP v R [2017] NSWCCA 200 (GP) at [22] (Hamill J, Macfarlan JA and Button J agreeing), Lonsdale at [65] (Beech-Jones and N Adams JJ). There is, however, no hard and fast rule, nor is there any principle, that a failure by a sentencing judge to make some express comment on the effect of accumulation in such a situation will always or generally amount to error in the exercise of the sentencing discretion: Lonsdale at [66] (Beech-Jones and N Adams JJ) and Rizk v R [2020] NSWCCA 291 at [21] to [26] (Basten JA, Price J agreeing).
A similar ground of appeal was considered in Elwood v R [2019] NSWCCA 315. At [55] - [57], Fullerton J (Gleeson JA and Walton J agreeing) noted that where a sentencing judge makes clear an intention that the total effective non-parole period would increase after accumulation, it is difficult to establish any sentencing error of the type contended for under ground 1 in this case. Her Honour referred to decisions of this Court in Sabongi v R [2015] NSWCCA 25 and CC v R [2019] NSWCCA 229 as supporting this approach.
In the present case, it is significant that, having made a finding of special circumstances, which was given effect to by setting a non-parole period which was 66.7% of the aggregate sentence, Hunt DCJ expressly considered whether to make that sentence cumulative to some extent with the earlier sentence for the firearms matters. In particular, his Honour said that in this regard he had "done [his] best to weigh the competing priorities". The result of that weighing was that, even with the one year accumulation of the aggregate sentence on the earlier sentence for the firearms matters, the ratio of the overall time in custody to the effective non-parole period still did not exceed 75%. It was 71.4%. Moreover, it is clear from the sentencing judge's comments that his Honour was well aware of the effect of his commencing the aggregate sentence "a year into your sentence for the firearms matters". Indeed, Hunt DCJ expressly identified the effective overall term and effective total non-parole period in his remarks. In addition, the degree of accumulation was expressly stated to have been adopted "intentionally".
It can be noted that the applicant only sought an adjustment to the commencement of the aggregate sentence of three months in order for the ratio of the effective non-parole period to the overall sentence to equal 66.7%, which was the ratio of the non-parole period to the aggregate sentence imposed by Hunt DCJ. Given that the overall sentence was seven years, I accept the Crown's submission that reducing the degree of accumulation in this manner by three months would amount to no more than tinkering, as described in Caristo v R [2011] NSWCCA 7 at [43] (R A Hulme J, Giles JA and Adams J agreeing). An effective non-parole period of two years was preserved and would still be effective to address the risk of institutionalisation and the need for a longer period to apply himself to drug treatment, which had been a basis for the finding of special circumstances in relation to the aggregate sentence.
Thus, in my view, there has been no failure to give effect to the finding of special circumstances by Hunt DCJ's intentionally commencing the aggregate sentence one year into the earlier sentence for the firearms offending.
In all the circumstances, there is no sufficient basis for concluding that Hunt DCJ accumulated the aggregate sentence on the existing sentence for the firearms matters by one year inadvertently, unintentionally or without considering the effective period to be spent in custody or the overall sentence and the finding of special circumstances. The fixing of the non-parole period and the extent of any accumulation on the earlier sentence were both matters to be determined by the exercise of the sentencing judge's discretion. No error in the exercise of his discretion in those regards has been established.
In my view, the first ground of appeal would not be made out, if leave to appeal were granted.

Ground 2

The applicant's second ground of appeal involved the contention that there was a minor error in the commencement date of the sentence. It was submitted that, although his Honour expressly stated that he intended to commence the aggregate sentence "a year into your sentence for the firearms matters" this had not occurred.
The sentence for the firearms matters commenced on 7 May 2018 and was to expire on 6 May 2020. It was submitted on behalf of the applicant that if the sentence for the armed robbery offences was to commence "a year into" that earlier sentence, it should have commenced on 6 May 2019 and not on 8 May 2019, as Hunt DCJ specified.
The Crown in effect submitted that "a year" in this context was not intended to be precise and any miscalculation, whether of one day or two days, was negligible and within the discretion of the sentencing judge. In the alternative, it was submitted that, if there was found to be an error, this was the kind of matter that could be corrected simply by adjusting the sentence by a day without a full resentencing in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
In my view, by stating that the sentence to be imposed should start "a year into [the] sentence for the firearms matters", Hunt DCJ expressed the clear intention to commence the aggregate sentence on the day following the expiration of one year of the sentence for the firearms offences, that is 7 May 2019, not 8 May 2019 as adopted by his Honour. Thus, there has been a calculation error in the commencement date of the sentence.
This type of minor calculational error is not a legal error which vitiates the sentencing judge's exercise of the sentencing discretion. It is an error which this Court can remedy by a simple and non-contentious adjustment of the sentence imposed by Hunt DCJ without the need to exercise afresh the sentencing discretion: Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72] (Bathurst CJ, Beazley P, R A Hulme and Schmidt JJ agreeing); Refaieh v R (2018) 272 A Crim R 248; [2018] NSWCCA 72 at [83] (N Adams J, Hoeben CJ at CL and Johnson J agreeing).
Accordingly, it is appropriate to grant leave to appeal in respect of ground 2 and to allow the appeal to the extent necessary to make the required adjustment to the commencement date of the aggregate sentence so that it accords with the sentencing judge's intention.

Conclusion and orders

For these reasons, I propose that the Court should order that: 1. The applicant is granted leave to appeal in respect of ground 2 but otherwise leave to appeal is refused. 2. The appeal is allowed to the extent necessary to permit correction of the calculation error in the sentence imposed by the District Court at Lismore on 26 November 2019. 3. The sentence imposed by Hunt DCJ on 26 November 2019 is adjusted so that the applicant is sentenced to a term of imprisonment with a non-parole period of four years commencing on 7 May 2019 and expiring on 6 May 2023 with a balance of term of two years, expiring on 6 May 2025.

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