Agha v The Queen
[2008] NSWCCA 153
•16 July 2008
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
Agha v R [2008] NSWCCA 153
FILE NUMBER(S):
2007/00003845
HEARING DATE(S):
24/6/08
JUDGMENT DATE:
16 July 2008
PARTIES:
Omar Agha (Applicant)
Regina (Respondent)
JUDGMENT OF:
Bell JA Grove J Latham J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
07/11/0293
LOWER COURT JUDICIAL OFFICER:
Norrish QC DCJ
LOWER COURT DATE OF DECISION:
10/8/07
COUNSEL:
Mr L McDermott (Applicant)
Ms J Girdham (Crown)
SOLICITORS:
Mulley Roth Solicitors (Applicant)
S Kavanagh (Respondent)
CATCHWORDS:
LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Mental Health (Criminal Procedure) Act 1990 (NSW)
CASES CITED:
Markarian v R [2005] HCA 25; 228 CLR 357
Pearce v R [1998] HCA 57; 194 CLR 610
R v Engert (1995) 84 A Crim R 67
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Letteri (unreported), Court of Criminal Appeal, 18 March 1992
R v Mailes [2004] NSWCCA 394; 150 A Crim R 365
R v Mitchell [1999] NSWCCA 120; 108 A Crim R 85
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
TEXTS CITED:
DECISION:
1. Grant leave to appeal.
2. Appeal dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2007/00003845
BELL JA
GROVE J
LATHAM JWednesday 16 July 2008
R v Omar AGHA
Judgment
BELL JA: This is an application for leave to appeal against the severity of limiting terms of imprisonment imposed on the applicant on 10 August 2007 by Norrish QC DCJ following a special hearing conducted under s 21A of the Mental Health (Criminal Procedure) Act 1990 (NSW) (MHCP Act). His Honour found that, on the limited evidence available, the applicant committed the offence of stealing property from the person of KK and the robbery of CH. Both offences occurred on 23 February 2005.
His Honour nominated a limiting term of nine months’ imprisonment to commence on 7 July 2007 for the offence of stealing from the person and a limiting term of two years’ imprisonment to commence on 7 October 2007 for the offence of robbery.
The verdicts of the Court at the special hearing are “convictions” and the limiting terms “sentences” for the purposes of s 5(1)(c) of the Criminal Appeal Act 1912 (NSW): R v Mailes [2004] NSWCCA 394; 150 A Crim R 365 at 367, [6].
Each of the offences was charged under s 94 of the Crimes Act 1900 (NSW) and is subject to a maximum penalty of 14 years’ imprisonment.
The first offence involved the theft of KK’s handbag, containing two mobile phones, cash and other personal items. His Honour described the offence as being, “at face value, a very mean exploitation of a naïve young woman”. (ROS 2.11-2.12) He said this:
“It may well have been, in the context of all the circumstances, that the offender’s taking of her handbag was something of a spontaneous action on his part, or an action with limited planning, but he had been with the young lady for an extended period of time. He had an opportunity to gauge her, as best he could with limited intellect, and it is clear that he decided to take advantage of her trusting nature as displayed to him throughout the afternoon they were together.” (ROS 2.14 – 2.23)
A second offender was present at the commencement of the incident leading to the robbery of CH. The applicant and the second offender both put on disguises before approaching CH. The second offender was the first to take hold of her, but the applicant joined in the physical assault. The second offender ran off, leaving the applicant, who continued to assault CH before robbing her. She was 16 years old. His Honour considered that she had been defenceless against a person of the applicant’s build. He found that it was a prolonged assault during which CH was “clearly terrified”. (ROS 3.26)
His Honour went on to say:
“The second offence is a more serious offence, and involves a blatant violation of the security and well-being of a young girl in daylight hours in an area where it would appear that she was effectively isolated from other people. The conduct of the offender may well have been influenced by the other person. I do not have enough details about that person to conclude positively that the offender was led into this offending behaviour. However, the allegation involved a serious assault, in my view, in the sense that the handling of the victim, the placing of her in the building where she was robbed, had very serious features to it. In relation to that matter the offender’s companion ran away before the struggle, which led to the stealing of the victim’s property, had concluded. The offender, however, continued with the struggle, as I have identified in the facts in my judgment, although it may well be, as was put by his counsel, that his continuation in the course of conduct initiated by him and his colleague may be itself a reflection of the character of his intellectual disability.” (ROS 2.24-3.15)
The applicant was on bail on a charge of robbery in company at the time of the commission of these offences. He was later found unfit to be tried for the robbery in company offence and, following a special hearing, a nine month limiting term was nominated, which commenced on 12 May 2006 and concluded on 11 February 2007.
The applicant’s criminal record revealed that he had appeared before the Bidura Children’s Court in December 2002 on a charge of demanding money with menaces. This was dismissed pursuant to s 32 of the Mental Health (Criminal Procedure) Act 1990. He was convicted by the Local Court at Parramatta on 2 February 2006 of an offence of obscene and wilful exposure.
The applicant was born in May 1985 and was aged 19 years at the date of these offences. He has an intellectual disability, which was detailed in a number of reports. His parents migrated to Australia from Lebanon. He was born in Australia and is one of eight children raised in a loving family environment. He speaks Arabic and English. He is unable to read or write in either language. He was an unruly student and he left school at the age of 16 without attaining any qualifications. Since leaving school, he has not held any form of employment.
The Probation and Parole Service assessed the applicant as a young man with limited understanding of, or insight into, his behaviour. The author of the pre-sentence report commented that the applicant is a person who has shown himself to be, “easily influenced by a negative peer group”. (ROS 6.23-6.24)
The applicant relied on the report of Dr Westmore and the Crown relied on the report of Dr Wong. Both are forensic psychiatrists. His Honour expressed a preference, to the extent the opinions of the two were in conflict, for the views expressed by Dr Westmore. Dr Westmore considers that the applicant suffers from moderate intellectual retardation. (AB 65)
His Honour noted Dr Westmore’s opinion that the applicant has, “behavioural difficulties of an anti-social type”. (ROS 7.29-8.1) These are associated with the applicant’s intellectual difficulties, which are of a “constitutional nature”. (ROS 8.3) They are life-long difficulties that are not amenable to medical intervention. Dr Westmore observed that with age and possible maturation there may be a reduction in the incidence of the applicant’s behavioural problems. In his opinion, it is unlikely that medication, counselling or any specific therapy, either inside or outside gaol, will result in major changes in the applicant’s behaviour. His Honour extracted the following passage from Dr Westmore’s supplementary report:
From a forensic perspective, Mr Agha’s prognosis should be considered very cautiously and in a guarded fashion at this time. In view of his previous history, his future risks of re-offending should be considered moderate to high.” (ROS 8.18-8.23)
His Honour was impressed with the evidence of the psychologist, Mr Roberts, who is employed by the Department of Ageing, Disability and Home Care Services. Mr Roberts attached a report by Shannon Packham, a casework specialist with the Department, to his report. Mr Roberts gave oral evidence at the sentence proceedings. He had observed positive signs indicating that the applicant has a capacity to take greater control of his own affairs and some understanding of the need to change his behaviour. Mr Roberts assessed the appellant as having the potential to participate in “an employment process”. (ROS 9.13)
The applicant was cooperative in his interviews with Mr Roberts, Dr Westmore and the Probation and Parole Service. The applicant is not a person who is considered suitable for “sheltered workshop” disability employment. Shannon Packham assessed the applicant as being suitable for employment in the open market, provided he is given training and the employment environment is a supportive one.
His Honour found that there was some hope for the future.
Section 23 of the MHCP Act provides:
“23 Procedure after completion of special hearing
(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court:
(a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment, and
(b) where the Court would have imposed such a sentence, must nominate a term, in this section referred to as a limiting term, in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence.
(2) If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings.
(3) Any such other penalty imposed or order made, under subsection (2), is to be subject to appeal in the same manner as a penalty or order in a normal trial of criminal proceedings.
(4) In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the Court may, if it thinks fit, take into account the periods, if any, of the person’s custody or detention before, during and after the special hearing (being periods related to the offence).
(5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court:
(a) after taking into account the periods, if any, of the person’s custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time, or
(b) directs that the term commence at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated in respect of the person or a sentence of imprisonment imposed on the person.
(6) When making a direction under subsection (5) (b), the Court is to take into account that:
(a) a sentence of imprisonment imposed in a normal trial of criminal proceedings may be subject to a non-parole period whereas a limiting term is not, and
(b) in a normal trial of criminal proceedings, consecutive sentences of imprisonment are to be imposed with regard to non-parole periods (as referred to in section 47 (4) and (5) of the Crimes (Sentencing Procedure) Act 1999).”
His Honour backdated the commencement of the limiting term for the first offence by 33 days to give the applicant full credit for a period of pre-sentence custody. His Honour was mindful that the provisions of s 23 do not allow a court to fix a non-parole period: R v Mitchell [1999] NSWCCA 120; 108 A Crim R 85.
The applicant’s counsel asked his Honour to remand the applicant for a lengthy period under s 11 of the Crimes (Sentencing Procedure) Act 1999. His Honour referred to the judgment of this Court in R v Palu [2002] NSWCCA 381; 134 A Crim R 174 in this respect. He declined to do so, holding that a non-custodial sentence was not one which would have been appropriate had the proceedings been a normal trial of criminal proceedings in respect of a person who was fit to be tried.
The orders made by the primary judge are challenged on the following grounds:
1. The sentencing judge erred in not finding that the offences were part of the same course of conduct and subsequently erred in not sentencing as concurrent offences.
2. After considering facts in aggravation and mitigation pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 his Honour erred in not reflecting his findings when sentencing.
3. The sentence is manifestly excessive.
His Honour rejected a submission that the conduct involved a single episode of criminal offending that justified the imposition of wholly concurrent sentences. He considered that they were discrete offences involving different victims and that, having regard to the principles explained in Pearce v R [1998] HCA 57; 194 CLR 610, and in R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66, there should be a modest measure of accumulation to reflect that circumstance.
The exercise of his Honour’s discretion in this respect has not been shown to have miscarried. Ground 1 is rejected.
Grounds 2 and 3 were argued jointly. This was appropriate, since they raise the same complaint, which is of manifest excess. His Honour analysed the evidence of the applicant’s intellectual disability and gave consideration to the principles explained in R v Engert (1995) 84 A Crim R 67 and Letteri (unreported), Court of Criminal Appeal, 18 March 1992. His statement of the principles is not suggested to have revealed error.
The offences, particularly the robbery of CH, were objectively serious instances of s 94 offending. His Honour well appreciated that the applicant was not an appropriate medium for general deterrence and that his moral culpability was reduced because of his intellectual handicap. His Honour considered that the protection of the community was one of the purposes of sentencing that required to be given weight. In light of Dr Westmore’s report, the evidence of the applicant’s impulsivity and the circumstance that he was on bail for a serious offence of violence at the time he committed these offences, his Honour was justified in approaching the matter in the way that he did.
Gleeson CJ said in R v Engert (at 68):
“A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other considerations. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. … It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.”
His Honour made a careful assessment of all of the matters relevant to the exercise of the discretion. His determination is not one that can be said, either by reference to the individual sentences or to the effective overall sentence, to exceed that which would have been appropriate had the applicant been convicted following a normal trial: Markarian v R [2005] HCA 25; 228 CLR 357 per Gleeson CJ, Gummow, Hayne and Callinan JJ at 371, [27]. No error authorising intervention of this Court has been established.
For these reasons I propose the following orders:
1. Grant leave to appeal;
2. The appeal is dismissed.
GROVE J: I agree with Bell JA.
LATHAM J: I agree with Bell JA.
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LAST UPDATED:
16 July 2008
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