Khawaja v R
[2014] NSWCCA 80
•24 June 2014
Court of Criminal Appeal
New South Wales
Case Title: Khawaja v R Medium Neutral Citation: [2014] NSWCCA 80 Hearing Date(s): 12 March 2014 Decision Date: 24 June 2014 Jurisdiction: Criminal Before: Leeming JA at [1];
Button J at [2];
RS Hulme AJ at [6]Decision: 1. Leave to appeal against sentence granted
2. Appeal dismissedCatchwords: CRIMINAL LAW - sentencing appeal - s 53A Crimes (Sentencing Procedure) Act 1999 (NSW) - requirement to "indicate" individual sentences not complied with - neither ultimate sentence nor degree of accumulation excessive Legislation Cited: Crimes Act 1900 (NSW), s 97(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53ACases Cited: R v Hammond (2000) 118 A Crim R 66
R v Harris [2007] NSWCCA 130; 171 A Crim R 267
R v Wheeler [2000] NSWCCA 34Category: Principal judgment Parties: Mouhammad Hussein Khawaja (Applicant)
Regina (Crown Respondent)Representation - Counsel: Ms R Burgess (Applicant)
Ms T Smith (Crown Respondent)- Solicitors: Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown Respondent)File Number(s): 2012/40606004
2012/58082004Decision Under Appeal - Before: GD Woods DCJ - Date of Decision: 07 December 2012 - Court File Number(s): 2012/406060042012/58082004
JUDGMENT
LEEMING JA: I agree with RS Hulme AJ.
BUTTON J: I agree with the orders proposed by RS Hulme AJ, and with his Honour's reasons. I wish to add some very brief comments of my own.
As for ground 1, it is true that the learned sentencing judge did not comply with s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Act"). It is also true that the approach adopted may have hindered the sentencing judge's reflection upon the degree of implicit accumulation in the aggregate sentence ultimately imposed. That is one reason why the steps outlined by RS Hulme AJ should be undertaken in the order envisaged by the statute. However, it is impossible to say that that hindrance actually occurred. Because of that impossibility, I would not uphold ground 1.
As for ground 2, it calls for consideration of whether the degree of accumulation implicit in the aggregate sentence is manifestly excessive. As a matter of mathematics, if the correct approach had been undertaken, his Honour would have provided two indicative head sentences of imprisonment for 3 years 9 months with regard to two separate criminal incidents. In those circumstances, I do not regard the degree of accumulation implicit in an aggregate head sentence of imprisonment for 6 years as manifestly excessive.
As for ground 3, I consider that it was open to the broad discretion reposed in a sentencing judge to reduce modestly the aggregate non-parole period from 4 years and 6 months to 4 years.
RS HULME AJ: On 7 December 2012 the above named Applicant for leave to appeal was sentenced by GD Woods DCJ in respect of two offences, robbery armed with an offensive weapon committed on 28 January 2012, and assault with intent to rob whilst armed with an offensive weapon, committed on 5 February 2012. Both offences arise under
s 97(1) of the Crimes Act 1900 (NSW) which prescribes a maximum penalty of 20 years' imprisonment for each offence.
The sentence imposed by his Honour was an aggregate sentence of 6 years including a non-parole period of 4 years, both such periods commencing on 21 April 2012. His Honour found special circumstances.
The grounds of appeal are:
(1)His Honour erred in his application of the aggregate sentencing provisions
(2)The degree of accumulation is manifestly excessive
(3)His Honour failed to give adequate effect to his finding of special circumstances
The circumstances of the offences - I summarise Judge Woods remarks - were:
" ... on Saturday 28 January 2012 after midnight the offender went to a 7-Eleven convenience store intending to rob it. The DVD ... shows a gentleman behind the counter doing his normal business serving people and then along comes the offender disguised with a hoodie and a peaked cap to cover up his face and wearing gloves. He lurks behind the other customers until he gets the opportunity of going to the counter. When the other people have gone he produces a very large knife ...
It is a very frightening instrument and he leaned over the counter putting the knife towards the victim's body and saying, "Open the fucking till otherwise I will chop you." He demanded money and told him to hurry up. The sensible victim opened the cash register, grabbed the notes that were in there and pushed them to the offender who took them. There was about $600 in notes and $76 in coins.
A week or so after that, Sunday 5 February, the offender repeated the exercise with a co-offender at the 7-Eleven in Rockdale. Again, the photographs show hooded figures, a frightening looking knife, the same technique, an approach to the counter, the words, Give me the fucking money" to which the frightened worker says, "Don't hurt me I have two kids take what you want."
The offender was unable in fact to open the cash register. Fortunately for the victim (and for the offenders, no doubt) a man pulled into the service station and, being interrupted, the offender and his mate decamped."
On 10 December 2010 in respect of a charge of affray, the Applicant had been sentenced to imprisonment for 10 months and 22 days commencing on 19 January 2010. The length of the sentence obviously accorded with his pre-sentence custody.
In May 2012 he was charged with breaking, entering and stealing and in September 2012 sentenced to imprisonment for 4 months commencing on 21 February 2012. The commencing date of the sentence under appeal was 2 months prior to the end of the 4 months sentence.
On 7 February 2012 he had been charged with possessing a prescribed restricted substance and having custody of a knife in a public place. The most significant sentence for these offences, imposed in June 2012, was a 12 months bond.
Turning to the Applicant's subjective circumstances, Judge Woods observed, inter alia:
"(The Applicant) was born in Australia of Lebanese migrants. He had trouble at school. He got into drugs. His parents attempted to put him on the straight and narrow by taking him to Lebanon. ... He found the cheap hashish in Lebanon attractive. He came back to Australia drug addicted and he continued to be drug addicted in the following years.
...
It is a significant consideration in mitigation that he is very young - young and stupid in this conduct but nonetheless young and not without some prospect of success in the future."
The Applicant was born in June 1991. He was allowed a 25% discount for his plea.
Ground 1
The statutory provision which forms the foundation for this ground is s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). That section provides:
(1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.
(2) A court that imposes an aggregate sentence of imprisonment under the section on an offender must indicate to the offender, and make a record of, the following:
(a) the fact that an aggregate sentence is being imposed,
(b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.
....(5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.
What his Honour said was (at [AB12]):
"This is an appropriate case in which I should employ the provision of s 53A of the Crimes (Sentencing Procedure) Act. I will set an aggregate sentence for both offences. If I were sentencing for each offence separately I would have imposed in each case a sentence of imprisonment for five years for each offence, accumulating those in part to total a sentence of eight years. I adopt that figure as an hypothetical aggregate. From that figure I allow a discount of twenty-five percent representing the early plea of guilty, reflecting what I accept to be a genuine remorse and some assistance in the administration of justice."
It was contended on behalf of the Crown that his Honour's reference to "5 years for each offence" and "a discount of 25%" was sufficient to, as required by s 53A "indicate" the sentence that would have been imposed for each offence. While, to anyone experienced in this field, it would be easy to deduce what his Honour had in mind, a step is required to apply the 25% to each of the 5 year periods as distinct from applying it to the "hypothetical aggregate". Given that, I do not regard what his Honour said as complying with the statutory obligation to "indicate to the offender and make a record of ... the sentence that would have been imposed for each offence ... had separate sentences been imposed instead of an aggregate sentence".
Section 53A(2) is clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges. While the subsection does not in terms require that his Honour "state" that, but for his decision to impose an aggregate sentence, he would have imposed a sentence for each offence of 3 years and 9 months but only to "indicate" that is what he would have done, clearly to "state" that sentence would have been the simplest way of complying with the section.
Thus I accept the submissions made on behalf of the Applicant that his Honour did not comply with the terms of s 53A. That said, s 53A(5) makes it clear that the sentence imposed is not thereby invalidated and there is nothing to indicate that his Honour's non-compliance resulted in a sentence greater than it otherwise would have been. The same result could have been achieved in the imposition of two sentences in a variety of ways.
Under the aegis of this ground it was also submitted that his Honour erred by "arriving at the starting point for the aggregate sentence by accumulating on a notional starting point of 5 years imprisonment".
His Honour's language, particularly his use of the words "accumulating those" makes it clear that in arriving at his figure of 8 years he added to the figure of 5 years for one of the sentences. However, while on its own that approach is not compliance with s 53A, there is nothing in the section to prohibit the ultimate working out of the sentence in this way.
Ground 2
It was submitted, correctly, that the application of the 25% discount for an early plea to which his Honour referred would reduce the figure of 5 years to one of 3 years and 9 months and that, to arrive at his ultimate aggregate figure of 6 years his Honour must have accumulated on account of the second offence a sentence of 2 years and 3 months (and implicitly limited the period of concurrency to 18 months). The former, it was submitted, is manifestly excessive, particularly when regard is had to the fact that the sentence imposed by his Honour was directed to commence 2 months after the commencement of a 4 months sentence previously imposed on the Applicant for another offence.
In support of the submission, it was urged on behalf of the Applicant that the offences were effectively part of a continuing episode of criminality during a period when the Applicant was abusing drugs. This is not an adequate description of the situation. The offences were committed nine days apart. They had their own discrete victims. If 3 years and 9 months' imprisonment was appropriate for one of the offences it is not obvious that a further 2 years and 3 months for a second offence is manifestly excessive. I accept that other judges may have accumulated to a lesser extent but as Simpson J observed in R v Hammond (2000) 118 A Crim R 66 at [7], "There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong".
In R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46] this Court endorsed remarks of Sully J in R v Wheeler [2000] NSWCCA 34 at [36]-[37]. In the passage referred to, his Honour had said:
" ... (There) is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose."
Those remarks may fairly be adapted to circumstances where a sentence for two offences is compared with a sentence for only one.
The extent to which sentences are accumulated or made concurrent is to a substantial degree a matter of discretion. I am by no means persuaded that in this case Woods DCJ was not within the legitimate exercise of his discretion when he accumulated the sentences as he did.
Ground 3
Looking only at the sentence which his Honour imposed, the application of the usual statutory ratio would have involved a non-parole period of 4 years and 6 months and a 1 year 6 months balance of term. Having found special circumstances his Honour reduced the non-parole period to 4 years (or 4 years and 2 months if the earlier sentence is taken into account) and extended the balance of term to 2 years.
On behalf of the Applicant it is submitted that taking into account his youth and past problem with drugs this period of supervision is inadequate to foster his rehabilitation after such a lengthy period of incarceration.
There was no evidence to that effect, the Court being simply asked to rely on its own experience of such matters. My experience provides no basis for the submission. Many young offenders, with serious drug problems, fall to be sentenced for lesser criminality than exhibited by the Applicant's offences and receive sentences and balances of term when eligible for supervised parole much shorter than that imposed on the Applicant. The proposition that all such offenders need, or should have, their balances of term extended to over 2 years would throw sentencing in this state on its head and is fundamentally flawed.
In any event, under the sentence imposed by Woods DCJ, the Applicant has 4 years in custody to cure his physical addiction, as an affidavit read on the usual limited basis, indicates he has done. Commencing in July 2013 he has also participated in the Drug and Alcohol programs available in gaol. There is no substance in this ground.
I should add that in support of this ground Ms Burgess, appearing for the Applicant, sought to place weight on the fact that the Applicant had been released from almost 11 months custody in December 2010 without supervision. No evidence was placed before the Court to indicate that the absence of parole and supervision at that time was against the wishes of the Applicant and given that he must have known of his drug problem it was well open to him in the period between that release and his 2012 offences to himself address his addiction. There is no evidence that he made the slightest efforts in this regard. Indeed the Pre-sentence Report indicates that the Applicant seems to have been perfectly content with almost daily use of ice, somewhat less frequent use of cocaine and tablets containing a mixture of ecstasy and acid and being part of a social network where using drugs was a shared activity.
I propose that the Applicant does have leave to appeal against sentence but that the appeal be dismissed.
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