Ghannoum v The Queen
[2019] VSCA 25
•19 February 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0252
| GEORGE GHANNOUM | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN AP and NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 February 2019 |
| DATE OF JUDGMENT: | 19 February 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 25 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1762 (Judge Higham) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Armed robberies with two co-offenders – Ground of appeal unjustifiable disparity of sentence – Co-offenders’ conduct more serious – One co-offender youthful first offender, the other with previously unrecognised intellectual disability – Differentiation in sentence reasonably open – Green v The Queen (2011) 244 CLR 462 and McCloskey-Sharp v The Queen [2015] VSCA 87 applied – Leave granted but appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Dr M FitzGerald | Doogue & George Pty Ltd |
| For the Respondent | Mr C B Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN AP
NIALL JA:
The applicant, George Ghannoum, committed a number of offences between 5 and 22 June 2017. He pleaded guilty to offences of obtaining property by deception, theft, attempting to obtain property by deception, and driving whilst his authorisation was suspended. He also pleaded guilty to two offences of armed robbery which he committed with two co-offenders, Saif Rashid and Abbas Allafta; and one offence of attempted armed robbery, which he committed with Allafta.
Allafta and Rashid also committed a number of other offences over approximately the same period, most relevantly other armed robberies and attempted armed robberies. Ghannoum, Allafta and Rashid all pleaded guilty to the relevant offences.
A plea hearing in relation to the applicant, Allafta and Rashid was held before a judge in the County Court on 25 September 2018. The plea in relation to Allafta was adjourned to enable further reports to be done. The judge sentenced the applicant and Rashid together on 29 October 2018.[1] Further plea hearings in relation to Allafta were held before the same judge on 9 November 2018 and 29 January 2019, and he was sentenced on 1 February 2019.[2]
[1][2018] VCC 1762 (‘Reasons’).
[2][2019] VCC 60 (‘Allafta Reasons’).
The applicant received a total effective sentence of 3 years’ imprisonment with a non-parole period of 18 months. Rashid was sentenced to a term of imprisonment of 12 months and a community correction order commencing at the end of that term of 2 years 6 months. Allafta was sentenced to a term of imprisonment of 1 year 11 months and a community correction order commencing at the end of that term of 2 years.
The applicant now seeks leave to appeal his sentence on two proposed grounds. The first is that the sentence imposed on him infringes the parity principle. In that respect he contends that his total sentence is excessively disparate from the total sentence imposed on Rashid and Allafta and gives rise to a justifiable sense of grievance. The second is that his total sentence and non-parole period, and the orders for cumulation on charges 5 (obtaining property by deception) and 9 (theft), infringe the totality principle.
The detailed sentences imposed on the applicant, on Rashid, and on Allafta are set out on the annexed schedule.
Circumstances of the applicant’s offending
On 5 June 2017 the applicant took a series of photographs of a phone which Rashid and Allafta had obtained in an armed robbery the previous evening. He advertised the phone on the internet and sold it for a sum of $450. He drove with Allafta to Heidelberg to deliver the phone to the purchaser and to collect the money. This conduct constituted the offence of obtaining property by deception (charge 5 on the relevant indictment).
On 17 June 2017 the applicant put $60 worth of petrol in his car and left the service station without paying. This conduct constituted the offence of theft (charge 9).
On 20 June 2017 Allafta and Rashid approached a man on a street in Lalor at approximately 6:00 pm. One of them was holding a small axe. They demanded the victim’s mobile phone. The victim handed over his phone and his wallet. The applicant drove up alongside the men and Allafta and Rashid got into the car and the three of them drove away. This conduct constituted the offence of armed robbery (charge 10).
Shortly after the armed robbery on 20 June 2017 the applicant and Allafta entered a milk bar and the applicant attempted to use a card from the victim’s wallet to make purchases. The attempt was unsuccessful. This conduct constituted the offence of attempting to obtain property by deception (charge 11).
At about 5:16 pm on 22 June 2017 the applicant stopped his motor vehicle next to a man walking in a street in Lalor. Allafta got out of the applicant’s motor vehicle wearing a black mask and grabbed the man by the shoulder demanding his phone. Allafta was holding a knife to the victim’s stomach. The victim attempted to hand over his phone to Allafta who then laughed, told him that it was a prank, and got back into the car. This conduct was the offence of attempted armed robbery (charge 12).
Shortly afterwards, at about 6:36 pm, police observed Rashid and Allafta with the applicant in the applicant’s car. A few minutes later Allafta and Rashid approached a man walking in a street in Lalor. One of them was holding a knife and he demanded that the victim hand over his phone. The victim did so. Demands were then made for his passcode and for money. The victim gave the offenders his passcode but did not have any money. The offenders checked that the passcode worked and then got back into the applicant’s car and the three of them drove away.
The three offenders were arrested by police together later that night (22 June 2017). All three offenders were interviewed by police. The applicant denied participation in any armed robberies, but admitted attempting to use the credit card. Allafta admitted the offending. Rashid made what the prosecutor on the plea hearing characterised as ‘fulsome admissions’.[3]
[3]The prosecution opening described Allafta as having admitted the offending and Rashid as having made ‘partial admissions to a number of the offences’. The sentencing judge said that the prosecutor had recognised and accepted that Rashid had made ‘fulsome admissions’, and the sentencing judge took into account as a mitigating factor what he described as Rashid’s ‘cooperation in the course of’ his interview with police: Reasons [22] and [69].
The applicant’s driver’s licence had been suspended on 17 February 2017 for a period of six months. At all relevant times his right to drive in Victoria was suspended. His conduct in driving his vehicle as described was the subject of a summary charge (charge 26).
Additional offending of Rashid and Allafta
Rashid was a co-offender with the applicant in relation to the two armed robberies (charges 10 and 13). In addition, Rashid pleaded guilty to, and was sentenced on, one further charge of attempted armed robbery, one further charge of armed robbery, and a charge of attempted robbery. Rashid’s offences were committed between 1 June 2017 and 22 June 2017.
Allafta was a co-offender with the applicant in relation to the two armed robberies (charges 10 and 13), and in relation to the obtaining of property by deception (charge 5), the attempt to obtain property by deception (charge 11), and the attempted armed robbery (charge 12). In addition, Allafta pleaded guilty to, and was sentenced on, two further charges of armed robbery, two further charges of attempted armed robbery, a further charge of obtaining property by deception, and a further charge of theft.
The applicant’s role in relation to the two armed robberies and the attempted armed robbery which he committed was that of a ‘getaway’ driver for Allafta and Rashid. Allafta and Rashid’s roles in that offending, and in the additional offending which they committed, was as active participants in street robberies of pedestrians with weapons including a wrench, a metal bar, a small flick knife, a knife and a small axe. On one occasion there was a physical confrontation which resulted in minor injuries to the victim including a small laceration to his left elbow caused by a knife.
When comparing the offending conduct, there were more offences committed by Rashid and Allafta, and their roles in the offences which they committed with the applicant involved more serious conduct than the applicant’s conduct.
The applicant, Rashid and Allafta are all young offenders. At the time of the offending the applicant was 22, Allafta was 21, and Rashid was 20.
Relevant criminal histories
Rashid had no prior convictions.
Allafta appeared in the Children’s Court on three occasions in 2012 and 2013 for offences of recklessly causing injury, unlawful assault, theft, and possession of a controlled weapon without an excuse. In October 2015 he was convicted in the Broadmeadows Magistrates’ Court of offences of theft, threat to inflict serious injury, and assault with a weapon and was placed on a community correction order for twelve months. Early the following year, in February 2016 he was fined a total sum of $1,300 on a charge of theft, obtain property by deception, and various driving offences, and the following month, in March 2016, a fine conversion order was made so as to permit him to perform unpaid community work in default of payment of the fine.
After the relevant offending and whilst on remand, Allafta was convicted in the Melbourne Magistrates’ Court on 15 November 2017 of theft, burglary, and criminal damage charges for which he received an aggregate term of imprisonment of three months. At the same time the fine conversion order was cancelled, and a breach of the community correction order which had run from 22 October 2015 until 22 October 2016 was found proven, although the order was then confirmed. Allafta was not subject to the community correction order when the offending in June 2017 occurred.
On 20 February 2015 the applicant was placed on a bond at the Heidelberg Magistrates’ Court on charges of shop stealing and going equipped to steal.
On 3 December 2015 the applicant was convicted of a number of offences at the Broadmeadows Magistrates’ Court including three offences of making a bomb hoax, five burglaries, four thefts, five offences of committing an indictable offence whilst on bail and cannabis use. He was also dealt with on a number of charges which had been adjourned from 29 October 2015 including possessing a controlled weapon without excuse, possessing a dangerous article in a public place, going equipped to steal, and possession of cannabis. On that day he was placed on a community correction order for 24 months, and he was fined.
On 9 September 2016 the applicant appeared at the Broadmeadows Magistrates’ Court and was dealt with for breach of the community correction order made on 3 December 2015. On the hearing before us the applicant’s counsel informed the Court that the breach was constituted by non-compliance with conditions rather than further offending. On that occasion the existing community correction order, which ran until 2 December 2017, was confirmed.
Accordingly, the applicant’s offending in June 2017 occurred whilst he was subject to a community correction order for offences which included making a bomb hoax, burglary, theft, and committing indictable offences whilst on bail; and after being recently dealt with for breach of that order and having had the order confirmed.
Like Allafta, the applicant also had subsequent matters dealt with whilst he was on remand. Counsel before us did not have full details of the relevant matters but they relied upon a sentence-remand report dated 24 January 2019 by Corrections Victoria which was handed up. That report indicates that on 13 September 2017 at Benalla Magistrates’ Court the applicant was sentenced to one month’s imprisonment on two charges of shop stealing, four charges of theft, two charges of driving whilst suspended, and other driving charges. On the same day he received an aggregate sentence of 4 months’ imprisonment on the charges which had been before the Broadmeadows Magistrates’ Court on 3 December 2015. The sentence of one month imprisonment on the further matters was cumulated on the 4 month aggregate sentence, and pre-sentence detention of 82 days was declared. Thus, by the time the applicant came to be sentenced in the County Court, his pre-sentence detention was declared to be 341 days, notwithstanding that he had been in custody since 22 June 2017, because of the 5 month sentence imposed at Benalla on 13 September 2017 (including 82 days pre-sentence detention). Allafta was in a similar position as a consequence of the 3 month sentence imposed upon him while on remand.
Relevant personal circumstances
The sentencing judge set out the relevant personal circumstances of the three offenders.
The applicant is the youngest of three children born to parents of Syrian heritage. He grew up in Melbourne’s northern suburbs and had a stable home life. He had difficulties at school and was expelled in Year 11. He nevertheless completed Year 12 VCAL and obtained a certificate in carpentry.[4] After leaving school he worked fulltime at first in retail but was dismissed for missing too many shifts. He then worked in his father’s coffee shop until it closed in 2017. He had financial difficulties.[5] The applicant began smoking cannabis at the age of 16 and his use slowly increased. He reported being affected by cannabis at the time of the offending.[6] A psychological report by Ms Carla Lechner, tendered on behalf of the applicant in the course of the plea, included her opinions that the applicant was vulnerable to the influence of others, that he suffered from underlying social anxiety, and that the offending seemed to have arisen in a setting of escalating cannabis use. Ms Lechner’s opinion was that the applicant had reasonable prospects of rehabilitation.[7]
[4]Reasons [12].
[5]Reasons [13].
[6]Reasons [14].
[7]Reasons [17].
Rashid was born in Iraq and came to Australia with his mother and brother at a young age. His father did not join the family and he died of a heart attack in Iraq whilst Rashid was still young. Rashid’s mother described Rashid’s father as very violent and abusive.[8] Rashid completed Year 11 and undertook some tertiary training. For a considerable period he was in a relationship which he maintains he was forced to terminate because of religious differences between their respective families. It was said that this separation triggered a ‘spiral’ into drug use. He primarily used GHB and methylamphetamine.[9]
[8]Reasons [18].
[9]Reasons [20].
Allafta also has parents of Iraqi origin. He has three brothers. His mother suffers from cancer. He has good relations with his family and reported no childhood exposure to trauma or abuse.[10] Allafta is married and has twin sons.[11] He had significant difficulty at secondary school and was expelled from two schools.[12] He failed to complete a pre-apprenticeship program.[13] Allafta began using drugs in his early teenage years and by the age of 15 was using methylamphetamine. He was using methylamphetamine daily prior to and during the offending period.[14]
[10]Allafta Reasons [10].
[11]Allafta Reasons [11].
[12]Allafta Reasons [12].
[13]Allafta Reasons [13].
[14]Allafta Reasons [14].
Allafta suffers from epilepsy which requires ongoing treatment. From his arrest until his sentence he was kept in protective custody as he was at ‘significant risk of threat from other prisoners’. He has a history of suicide attempts and self-harm in custody.[15] He has also suffered head injuries as a result of his involvement in kickboxing and as a consequence of an assault.[16] Because of the possibility of an acquired brain injury or cognitive impairment, Allafta’s plea hearing was adjourned to enable a neuropsychological report to be obtained.
[15]Allafta Reasons [19].
[16]Allafta Reasons [21].
A report from the clinical neuropsychologist, Dr Matt Treeby, which was then obtained and tendered on the adjourned plea, revealed that Allafta had a mild intellectual disability, with a full scale IQ of 65.[17] The neuropsychologist’s opinion was that Allafta’s intellectual disability may have affected his ability to understand the consequences of his actions, to make reasoned and appropriate judgments, and control his behaviour.[18]
[17]Allafta Reasons [26]–[28].
[18]Allafta Reasons [29].
A pre-sentence report from Community Corrections was ordered and a Justice Plan and an Overview Report were also obtained by the sentencing judge and were tendered on the plea hearing.[19] Community Corrections and the Department of Health and Human Services prepared a joint plan for Allafta’s supervision and support.[20] The Disability Justice Coordinator who authored the Justice Plan and the Overview Report gave evidence before the sentencing judge on the adjourned plea.[21] The sentencing judge recorded the fact that Allafta’s intellectual disability had not been previously recognised.[22]
[19]Allafta Reasons [31].
[20]Allafta Reasons [31]–[32].
[21]Allafta Reasons [39].
[22]Allafta Reasons [37].
The Justice Plan is a central component of the community correction order made by the judge in relation to Allafta for the period of two years after the term of 1 year 11 months’ imprisonment which he imposed. In addition to the mandatory conditions, the community correction order has additional conditions which, amongst other things, require Allafta to participate in the services specified in the Justice Plan for two years, impose a curfew, provide for judicial monitoring, and require Allafta to undergo drug abuse and mental health assessment and treatment.
Sentencing reasons
As indicated, the sentencing judge sentenced the applicant and Rashid on 29 October 2018. He began by summarising the offending conduct, and the personal circumstances and criminal histories of the two offenders. He set out the submissions made on their behalf, including a submission made on behalf of Rashid that his record of interview concerned both his own conduct and the conduct of others attracting the ‘particular credit’ addressed by this Court in R v Doran.[23]
[23][2005] VSCA 271; Reasons [35].
The sentencing judge characterised the offending of the applicant and Rashid as serious. He referred to the importance of general deterrence and specific deterrence, the need for denunciation, and the effect their conduct had had upon the victims.
Specifically in relation to the applicant, the sentencing judge said he had had regard to his plea of guilty; his youth; what the judge described as his ‘developing insight’; his chronic anxiety; his role in the offending; the principles of parity and totality; and his prospects of rehabilitation, which the judge described as ‘positive’ if he could manage his anxiety, stay away from drugs and avoid associates in the ‘drug world’.[24]
[24]Reasons [48].
Specifically in relation to Rashid, the sentencing judge said he had had regard to his plea of guilty; his status as a young offender; his prior good character; his cooperation in the course of the record of interview; his genuine remorse; his prospects of rehabilitation, which the judge observed were ‘dependent’ upon his ability to remain drug free; the continued support of his family; and the principles of totality and parity.[25]
[25]Reasons [69].
As indicated, Allafta was sentenced on 1 February 2019 after adjourned plea hearings on 9 November 2018 and 29 January 2019. The sentencing judge again described the relevant offending. He set out Allafta’s personal circumstances including his criminal history.
The sentencing judge referred to Allafta’s epilepsy which requires ongoing treatment,[26] to the fact that he was in protective custody[27] and to head injuries which he had suffered.[28] He referred to a report of a consultant psychologist, Mr Ian Mackinnon, which had been tendered on the initial plea hearing and which had expressed the opinion that Allafta met the criteria for mixed anxiety and depression disorder as well as poly-substance abuse disorder.[29]
[26]Allafta Reasons [19].
[27]Ibid.
[28]Allafta Reasons [21].
[29]Allafta Reasons [23].
The sentencing judge gave detailed attention to the neuropsychological report of Dr Treeby, which was tendered on the adjourned plea hearing.[30] Dr Treeby’s opinion had revealed that Allafta scored either ‘borderline or extremely low’ in tests measuring intellectual functioning and had revealed a full scale IQ of 65. Dr Treeby concluded that Allafta had a mild intellectual disability which may have affected his ability to understand the consequences of his actions.
[30]Allafta Reasons [26]–[30].
The sentencing judge dealt with the additional material obtained consequent upon Dr Treeby’s report, and the evidence given by the author of the Justice Plan and the Overview Report, in some detail.[31] He referred to the fact that notwithstanding a high risk of re-offending, Allafta had been found suitable for a community correction order. The sentencing judge referred to Allafta’s ‘significant sub average general intellectual functioning and significant deficit in adaptive behaviour, each of which became manifest before the age of 18 years’.[32] He then observed that this disability ‘had not been recognised prior to your remand in respect of these offences’.[33] The judge referred to the Justice Plan and to the fact that it was proposed that a ‘Disability Justice Coordinator … would work in tandem with Corrections’.[34] The judge referred to a submission made on behalf of Allafta that there was an opportunity presented which ought to be ‘seized’.[35]
[31]Allafta Reasons [32]–[39].
[32]Allafta Reasons [37].
[33]Ibid.
[34]Allafta Reasons [38].
[35]Allafta Reasons [39].
The judge emphasised the seriousness of the offending,[36] and referred to the importance of general deterrence, specific deterrence, denunciation, and the effect of the offending upon the victims.[37] The judge said that he took into account Allafta’s plea of guilty[38] and his relative youth.[39]
[36]Allafta Reasons [40].
[37]Allafta Reasons [45].
[38]Allafta Reasons [46].
[39]Allafta Reasons [47].
The judge continued:
I have regard to your hitherto undiagnosed intellectual disability, which in my view, as already stated, does reduce to some extent your moral culpability for the offence, and ‘moral culpability’ means the extent to which you could be held liable for your actions and for the consequences of those actions. [40]
[40]Allafta Reasons [48].
The judge said that he had had regard to all the matters raised in the Community Corrections pre-sentence report, the Justice Plan, and the Overview Report.[41] The judge concluded that the objective gravity of the offending did not permit Allafta’s immediate release but that he intended to pass a sentence which would enable him to be placed upon a community correction order with a Justice Plan condition.[42]
[41]Allafta Reasons [50].
[42]Allafta Reasons [52].
Proposed grounds of appeal and submissions made
The first proposed ground of appeal is that the sentence imposed on the applicant infringes the parity principle. The particulars of that ground in the notice of application refer only to the co-accused Rashid. At the outset of the hearing we granted leave to amend the particulars so as to refer to the sentences of both Rashid and Allafta. The second proposed ground is that the total sentence and non-parole period, and the orders for cumulation on charges 5 and 9, infringe the totality principle.
Counsel for the applicant particularly focused upon the parity ground. He emphasised the difference in both the quantity and the nature of the offending. Allafta and Rashid had committed more offences in circumstances more serious than those of the applicant. The applicant submitted that the starting point ought to be that the applicant must receive a sentence significantly lower than Rashid and Allafta because of their offending conduct, and that then other circumstances might reduce that difference but ought not to result in a position where the applicant receives a more severe sentence than his co-offenders.
Counsel for the applicant specifically compared the applicant’s position with Rashid. He submitted they were both youthful. He submitted that the reliance placed upon R v Doran by Rashid’s counsel was misplaced. He acknowledged that Rashid was a youthful first offender but submitted that the applicant had no history of violent offences, that he was also still youthful, and that the psychological material tendered on the plea on his behalf indicated that he was susceptible to the influence of others.
In relation to Allafta, counsel for the applicant emphasised that Allafta had a criminal history which was more serious than that of the applicant because he had prior convictions for violent offences.
In relation to the second proposed ground of appeal the applicant focused upon the cumulation ordered on the comparatively less serious charges of obtaining property by deception (where 2 months’ cumulation was ordered) and theft (where one month’s cumulation was ordered). It was submitted that the cumulation was excessive and constituted an infringement of the totality principle.
Senior counsel for the respondent submitted that a parity ground could only succeed if it was not reasonably open to a sentencing judge to differentiate between co-offenders in the way in which he or she did. It was submitted that the differentiation here was reasonably open, given that Rashid was a youthful first offender, and that Allafta had been revealed to suffer from a previously unidentified intellectual disability. Senior counsel also referred to the fact that Allafta suffered from epilepsy and was serving his sentence in protection.
Senior counsel for the respondent submitted that the combination sentence imposed on Allafta was not necessarily less burdensome than the sentence imposed on the applicant. It was submitted that the judge gave rational reasons for the combination sentence he imposed on Allafta.
Senior counsel for the respondent submitted that, given the seriousness of the offending, all of the sentences imposed were ‘mild’.
Senior counsel for the respondent submitted that the proposed totality ground of appeal was not arguable given the seriousness of the totality of the offending. He submitted even if an error were established in relation to the cumulation on charges 5 and 9 leave to appeal on this proposed ground should be refused as there was no reasonable prospect the total effective sentence would be reduced.
Applicable principles — parity
In Green v The Queen[43] the judgment of the plurality expressed the applicable principles in relation to parity as follows:
Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may ‘reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender’. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: ‘the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done’. The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.[44]
[43](2011) 244 CLR 462.
[44]Ibid 474–5 [31] (citations omitted).
In McCloskey-Sharp v The Queen,[45] Osborn JA, in refusing leave to appeal against sentence, formulated the relevant principle as follows:
The principle of parity is an aspect of equal justice. Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a marked disparity between sentences which gives rise to a justifiable sense of grievance on an applicant’s part, the principle may be said to have been infringed. No justifiable grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way which he or she did.[46]
[45][2015] VSCA 87.
[46]Ibid [17].
Analysis ― proposed parity ground
Counsel for the applicant correctly submitted that a relevant consideration when considering the respective sentences is the fact that the offending by Rashid and Allafta was more extensive and involved more serious conduct than that of the applicant. His suggested approach, however, whereby that position would be treated as requiring that a more severe sentence be imposed upon them, with the possibility of a reduction in that difference by reference to other circumstances, would be an erroneous approach to sentencing. Sentencing judges cannot set what might be described as ‘benchmark’ sentences by reference to the nature of the offending conduct and then take other circumstances into account. All of the relevant considerations have to be assessed together. Having said that, it is a relevant consideration that the offending by Rashid and Allafta involved more serious conduct than the offending by the applicant.
There was not any significant difference between the three offenders in relation to their family background. All three offenders were young.
There was a difference between the three offenders in relation to their cooperation with police. Whilst the submission made on behalf of the applicant concerning the inapplicability of the principles in R v Doran to Rashid might be accepted, the sentencing judge did not go beyond relying upon Rashid’s ‘cooperation’ as a mitigating factor. Allafta also made admissions. This was not a circumstance that the applicant was able to rely upon.
A matter of considerable significance in relation to Rashid was his absence of prior convictions. He was a youthful first offender. The sentence imposed upon him by the sentencing judge is explicable by that circumstance. The applicant, like Rashid, had the benefit of a CCO when he was sentenced the first time. Equal treatment did not demand that he be treated in the same way as Rashid, and in effect again as a first time offender, when he was convicted of subsequent offending.
In relation to Allafta, the intellectual disability was a factor of significance in the judge’s determination of the appropriate disposition. This previously unrecognised disability, and the steps which were to be put in place to address that position through a Justice Plan, explain the sentence imposed.
In our opinion, whilst recognising that the offending conduct by Rashid and Allafta was more serious than that of the applicant, there are differences between the co-offenders which justify the sentences imposed. In our opinion, it was reasonably open to the sentencing judge to differentiate between the offenders in the way he did.
In the course of the applicant’s oral submissions much of what was said to be the justifiable sense of grievance (objectively assessed) was based upon the fact that both Rashid and Allafta received a ‘combination’ sentence, involving a community correction order, whereas the applicant did not. The applicant was assessed for a community correction order in relation to this offending, and was found to be suitable, but, in our view, it is unsurprising that the judge did not make a community correction order in relation to this offending by the applicant. As we observed earlier, the applicant’s offending in June 2017 occurred whilst he was on a community correction order and in circumstances where he had recently been dealt with for breaches of that order. No justifiable sense of grievance can arise from the judge’s decision not to make a community correction order in these circumstances.
Because the submission made on behalf of the applicant relying upon the difference in the offending conduct was arguable, we would grant leave to appeal on this proposed ground, but for the reasons given the appeal must be dismissed.
Analysis ― proposed totality ground
In our opinion there is no substance in the proposed totality ground. It does not seem to us to be arguable that there was any failure to have proper regard to the principles of totality for the reasons advanced by the respondent.
Particular reliance was placed upon the cumulation orders in relation to the charge of obtaining property by deception (charge 5 ― selling the stolen mobile phone) and the charge of theft (charge 9 ― petrol from the service station). The offending conduct in each case was separate to the other offences. In the context, we do not agree that the cumulation ordered in relation to the obtaining of property by deception (charge 5) is arguably excessive. The cumulation ordered in relation to the theft charge (charge 9) is stern but, given the applicant’s criminal history, we do not consider that it is arguably excessive.
Like Allafta, the applicant could not get the benefit of the entire period since his arrest on 22 June 2017 as pre-sentence detention because he received a sentence of imprisonment on unrelated matters during that time. The judge was aware of that circumstance and expressly referred to it.[47]
[47]Reasons [15].
Leave to appeal will be refused on proposed ground 2.
Conclusion
In conclusion, we would grant leave to appeal on proposed ground 1 concerning parity, but the appeal will be dismissed. Leave to appeal will be refused on proposed ground 2.
SCHEDULE OF SENTENCES: GEORGE GHANNOUM, SAIF RASHID AND ABBAS ALLAFTA
GEORGE GHANNOUM (DOB: 14 March 1995)
| Charge | Offence | Maximum | Sentence | Cumulation |
| Indictment C1711313 | ||||
| 5. | Obtain property by deception Crimes Act 1958 s 81(1) | 10 years’ imprisonment Crimes Act 1958, s 81(1) | 4 months’ imprisonment | 2 months |
| 9. | Theft Crimes Act 1958, s 74(1) | 10 years’ imprisonment Crimes Act 1958, s 74 | 2 months’ imprisonment | 1 month |
| 10. | Armed robbery Crimes Act 1958, s 75A(1) | 25 years’ imprisonment Crimes Act 1958, s 75A(2) | 21 months’ imprisonment | Base sentence |
| 11. | Attempt to obtain property by deception Crimes Act 1958, s 81(1) and s 321M | 5 years’ imprisonment Crimes Act 1958, s 81(1) and s 321P | 3 months’ imprisonment | - |
| 12. | Attempted armed robbery Crimes Act 1958, s 75A(1) and s 321M | 20 years imprisonment Crimes Act 1958, s 75A(2) and s 321P | 18 months’ imprisonment | 6 months |
| 13. | Armed robbery Crimes Act 1958, s 75(A)(1) | 25 years’ imprisonment Crimes Act 1958, s 75(A)(2) | 21 months’ imprisonment | 6 months |
| Summary charge | ||||
| 26. | Drive whilst authorisation suspended Road Safety Act 1986, s 30(1) | 30 penalty units or 4 months’ imprisonment Road Safety Act 1986, s 30(1) | Convicted and discharged. Disqualified from driving for 18 months | - |
| Total effective sentence | 3 years’ imprisonment | |||
| Non-parole period: | 18 months | |||
| Pre-sentence detention | 341 days | |||
| 6AAA statement: 4 years 3 months’ imprisonment with a non-parole period of 3 years | ||||
| Other relevant orders: Forensic sample order | ||||
SAIF RASHID (DOB: 23 October 1996)
| Charge | Offence | Maximum | Sentence | Cumulation |
| Indictment C1711313 | ||||
| 3. | Attempted armed robbery Crimes Act 1958, s 75A(1) and s 321M | 20 years’ imprisonment Crimes Act 1958, s 75A(2) and s 321P | Aggregate community correction order for a period of 30 months, with conditions: | |
| • 250 hours unpaid community work | ||||
| • Treatment and rehabilitation undertaken to be counted as hours of unpaid community work | ||||
| • Supervision | ||||
| • Assessment, treatment and rehabilitation – drug abuse/dependency, mental health assessment and treatment | ||||
| • Non-association with co-accused | ||||
| • Residence restriction | ||||
| • Curfew | ||||
| • Judicial monitoring | ||||
| 4. | Armed robbery Crimes Act 1958, s 75A(1) | 25 years’ imprisonment Crimes Act 1958, s 75A(2) | Aggregate community correction order for a period of 30 months, with conditions as summarised above | |
| 7. | Attempted robbery Crimes Act 1958, s 75(1) and s 321M | 10 years’ imprisonment Crimes Act 1958, s 75(2) and s 321P | 12 months’ imprisonment | Concurrent |
| 10. | Armed robbery Crimes Act 1958, s 75A(1) | 25 years’ imprisonment Crimes Act 1958, s 75A(2) | 12 months’ imprisonment | Concurrent |
| 13. | Armed robbery Crimes Act 1958, s 75A(1) | 25 years’ imprisonment Crimes Act 1958, s 75(A)(2) | 12 months’ imprisonment | Concurrent |
| Total effective sentence | 1 year imprisonment, 30 months CCO | |||
| Non-parole period | N/A | |||
| Pre-sentence detention | 366 days | |||
| 6AAA statement: | 3 years and 6 months with a non-parole period of 2 years and 6 months | |||
| Other relevant orders: | Order for forensic sample pursuant to Crimes Act 1958, s 464ZF | |||
ABBAS ALLAFTA (DOB: 6 September 1995)
| Charge | Offence | Maximum | Sentence | Cumulation |
| Indictment C1711313 | ||||
| 1. | Armed robbery Crimes Act 1958, s 75A(1) | 25 years’ imprisonment Crimes Act 1958, s 75A(2) | Aggregate community correction order for 2 years with additional conditions: | |
| • Supervision | ||||
| • Assessment and treatment including testing for drug abuse/dependency | ||||
| • Assessment by ACSO-COATS | ||||
| • Mental health assessment/treatment | ||||
| • GP and mental health care plan including psychologist and treatment | ||||
| • Programs/courses | ||||
| • Not to associate with co-accused for 2 years | ||||
| • Residence restriction | ||||
| • Curfew | ||||
| • Judicial monitoring | ||||
| • Justice Plan for 2 years | ||||
| • Engage with disability justice coordinator for 2 years | ||||
| • Participate in the referral process and programs under Justice Plan for 2 years | ||||
| 2. | Obtain property by deception Crimes Act 1958, s 81(1) | 10 years’ imprisonment Crimes Act 1958 s 81(1) | Aggregate community correction order for 2 years with conditions as summarised above | ― |
| 3. | Attempted armed robbery Crimes Act 1958, s 75A(1) and s 321M | 20 years’ imprisonment Crimes Act 1958, s 75A(2) and s 321P | 15 months’ imprisonment | ― |
| 4. | Armed robbery Crimes Act 1958, s 75A(1) | 25 years’ imprisonment Crimes Act 1958, s 75A(2) | 21 months’ imprisonment | Base sentence |
| 5. | Obtain property by deception Crimes Act 1958, s 81(1) | 10 years’ imprisonment Crimes Act 1958, s 81(1) | 4 months’ imprisonment | ― |
| 6. | Attempted armed robbery Crimes Act 1958, s 75A(1) and s 321M | 20 years’ imprisonment Crimes Act 1958, s 75A(2) and s 321P | 21 months’ imprisonment | 1 month cumulation on base sentence |
| 8. | Theft Crimes Act 1958, s 74(1) | 10 years’ imprisonment Crimes Act 1958, s 74(1) | 2 months’ imprisonment | ― |
| 10. | Armed robbery Crimes Act 1958, s 75A(1) | 25 years’ imprisonment Crimes Act 1958, s 75A(2) | 21 months’ imprisonment | ― |
| 11. | Attempt to obtain property by deception Crimes Act 1958, s 81(1) and s 321M | 5 years’ imprisonment Crimes Act 1958, s 81(1) and s 321P | 3 months’ imprisonment | ― |
| 12. | Attempted armed robbery Crimes Act 1958, s 75A(1) and s 321M | 20 years’ imprisonment Crimes Act 1958, s 75A(2) and s 321P | 21 months’ imprisonment | 1 month’s cumulation on base sentence and charge 6 |
| 13. | Armed robbery Crimes Act 1958, s 75(A)(1) | 25 years’ imprisonment Crimes Act 1958, s 75(A)(2) | 21 months’ imprisonment | ― |
| Total effective sentence | 23 months’ imprisonment, 2 years CCO | |||
| Non-parole period | N/A | |||
| Pre-sentence detention | 497 days | |||
| 6AAA statement: | 5 years and 3 months with a non-parole period of 4 years and 2 months’ imprisonment | |||
| Other relevant orders: | Order for forensic sample pursuant to Crimes Act 1958, s 464ZF | |||
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