Osman v The Queen
[2015] VSCA 308
•18 November 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0193
| MOHAMED OSMAN | Applicant |
| V | |
| THE QUEEN | Respondent |
---
| JUDGES: | BEACH and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 November 2015 |
| DATE OF JUDGMENT: | 18 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 308 |
| JUDGMENT APPEALED FROM: | DPP v Osman (County Court of Victoria, Judge Jordan, 13 May 2015) |
---
CRIMINAL LAW – Appeal – Sentence – Robbery – Parity – Applicant sentenced to substantially longer term of imprisonment than co-offender – Whether judge erred in application of the parity principle – Distinguishing features between co-offender and applicant – Applicant played more serious role in offending – Applicant did not demonstrate immediate remorse – Applicant had more significant list of prior convictions – Whether sentence manifestly excessive – Significant mitigating factors – Applicant suffered from mental impairment – Applicant had experienced trauma – Whether judge gave excessive weight to general and specific deterrence – Serious offending – Application for leave to appeal granted – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G C Thomas | Greg Thomas Lawyers |
| For the Crown | Ms F L Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
BEACH JA
KAYE JA:
The applicant pleaded guilty to one charge of robbery committed by him, with three co-offenders, shortly after midnight on 26 December 2014. After a plea presented on his behalf, he was sentenced to a term of imprisonment of 18 months, and ordered to serve a Community Corrections Order (‘CCO’) for a period of two years, with conditions including assessment and treatment of, and testing for, drug and alcohol abuse or dependency, mental health assessment and treatment as directed, and supervision pursuant to s 48E of the Sentencing Act 1991. The CCO attached a condition requiring the applicant to participate in services specified in a Justice Plan pursuant to s 80 of the Act. The judge declared 263 days as the period of pre-sentence detention already served by the applicant.
The applicant seeks leave to appeal against the sentence on the following grounds:
Ground 1: The learned sentencing judge erred in the application of the parity principle by imposing upon the applicant an immediate sentence of imprisonment that was 12 months greater than the period of imprisonment imposed in relation to co-offender Mursal.
Ground 2: The sentence was manifestly excessive in light of:
(a)The length of the term of imprisonment imposed in addition to the CCO.
(b)The serious mental impairment suffered by the applicant which was found to make all six Verdins principles relevant to sentencing.
(c) The relevance of the totality principle.
(d)The availability to the applicant of structured supervision and support in the community via a Justice Plan.
The offending
The applicant committed the offence, to which he pleaded guilty, in company with three other young men, namely, Brett Atkinson, Louis Anthony Asanughwa-Onoduamue, and Osman Mursal.
At approximately midnight on 26 December 2014, the four offenders met at the State Library on Swanston Street, Melbourne. They then made their way to the corner of Elizabeth and Collins Streets. At approximately 12.18 am, the applicant observed the victim, Chawit Songkrasin, walking along Collins Street. He was intercepted by the applicant and his three co-offenders. The applicant grabbed Mr Songkrasin, pushed him against a wall, and restrained him by holding the left side of his body against the wall. The applicant said to Mr Songkrasin, ‘Listen. Where is your phone? Give me your phone’.
Thereupon, Atkinson approached Mr Songkrasin, producing a 20 centimetre kitchen knife and pointing it to the side of his neck. Mursal and Asanughwa-Onoduamue also approached Mr Songkrasin at this time, in order to prevent him moving away. Atkinson attempted to take Mr Songkrasin’s bag out of his arms. At that point, Asanughwa-Onoduamue began to walk away along Collins Street. Atkinson began using the knife to cut the bag from the victim’s hands, who was still surrounded by the applicant and Mursal, thus preventing him from moving. Mursal then patted down the victim’s pockets.
Atkinson then joined Asanughwa-Onoduamue walking along Collins Street. The applicant ran to catch up with them. In the meantime, Mursal had a brief conversation with Mr Songkrasin, who asked him to return his passport. Mursal told Mr Songkrasin to follow him, and then left to join the other three offenders. Mr Songkrasin sensibly did not follow Mursal.
The four offenders then commenced to leave the scene. As they fled, the applicant had the victim’s bag in his hand, which he discarded at an alcove before the intersection of Swanston Street. Asanughwa-Onoduamue was arrested by police in Collins Street. At 12.45 am, Atkinson and the applicant were arrested while walking out of a car park in Royal Lane, Melbourne. While they were in the car park, they went through the victim’s wallet and discarded its contents. Atkinson took $70 from the victim’s wallet. Subsequently, Mursal was arrested on 9 January after the execution of a search warrant at his house.
After his arrest, the applicant was interviewed by police. He said that he did not remember much at the time. He was drunk. He said he had met the ‘little Koori guy’ (Atkinson) a long time ago, but he had not met the ‘Africans’ (Mursal and Asanughwa-Onoduamue) previously. He denied having any knowledge of the knife.
Previous convictions
The applicant is 30 years of age. He has a long history of criminal convictions, arising from 12 court appearances between May 2002 and September 2011. They include convictions for theft, aggravated burglary, recklessly causing serious injury, and recklessly causing injury. Relevantly, the applicant also has convictions for attempted armed robbery in 2003 and 2011 and for robbery in 2004. In July 2011, he was sentenced at the Melbourne County Court on a charge of armed robbery to a term of imprisonment of 3 years and 9 months, with a non-parole period of 2 years. Subsequently he was sentenced by the Melbourne Magistrates’ Court in September 2011, on charges of attempted robbery and recklessly causing injury, to an aggregate sentence of 12 months’ imprisonment, 6 months of which was to be concurrent on the sentence he was then serving. He was released from prison only seven days before the commission of the offence which is the subject of this application, following a 51 month period of incarceration. During the last seven years since November 2008, the applicant has been in prison for all but 2 months and 3 weeks.
Background
The applicant has a history marked by deprivation, disadvantage, mental impairment, drug and alcohol abuse, and exposure to horrific and traumatic events in Somalia.
The applicant was born in Somalia. He came to Australia with his mother and brother as a refugee at a young age. His mother abandoned him when he was young. He was placed under the care of the Department of Health and Human Services. In June 1996, he commenced to reside in Berry Street homes. In November 1996, he was moved to St Vincent’s Boys’ Home where he resided until he was 18 years of age. Following that, he has had a history of transient accommodation, combined with a number of periods of incarceration. The applicant’s educational history is unclear, but it would appear that he had the benefit of only a limited education.
In 2004, the applicant returned to Somalia accompanied by his mother, who had sought him out. When they arrived there, the applicant’s mother abandoned him. Extended family members forced him to join a ‘terrorist group’. He was later forced to join the Somalia Army. The applicant has described, to a number of different counsellors, being a witness to conflict, and to being forced to witness and carry out horrific acts, which included beheadings, torture, and other atrocities. The applicant was ultimately able to make an escape, with the support of the Australian Embassy, who helped him to return to Australia.
The applicant commenced abusing drugs at the young age of 13 years. By the age of 14 years, he had been introduced to heroin, amphetamines, benzodiazepines and methylamphetamines. He also commenced consuming alcohol to excess at the same time. After his return to Australia from Somalia, his heavy substance abuse continued. When he was released in the community, he had difficulty remaining in accommodation, and he spent time sleeping on the streets. He engaged in criminal activity and used substances as part of the lifestyle engaged in by the peer group with whom he was then associating. The applicant has very limited employment history.
The reports, that were placed before the sentencing judge, indicate that the applicant has a long history of intellectual and psychological impairment. The material suggests that there have been varying assessments made of his Intelligence Quotient (‘IQ’). One assessment, in 1996, reported a full scale IQ of 60. In May 2015, Ms Gina Cidoni, a consultant psychologist, recorded a full scale IQ of 52, which placed him well within the mentally defective range. A number of reports have also supported a diagnosis of psychological disturbance, and in particular, severe post-traumatic stress disorder arising from the experiences to which the applicant was exposed in Somalia, together with associated depression and anxiety. He has made a number of attempts to commit suicide and to inflict self-harm in a horrific manner.
The plea
On his plea, counsel noted that the applicant had pleaded guilty at a very early stage. The prosecution had accepted that the applicant did not have any knowledge of the knife. Counsel referred to the reports of the psychologists and psychiatrists to which we have referred, and, in particular, the diagnosis that he had a significant intellectual impairment which impinged on his capacity to function normally in the community. It was also pointed out that when the applicant was last released from custody on 19 December 2014, he had no support in place, no accommodation, and no assistance. Accordingly, he gravitated to the company of other homeless people, which resulted in his offending in this case. Counsel submitted that the judge should impose a term of imprisonment, together with a CCO, and a Justice Plan.
As a result of that submission, the judge adjourned the plea in order to enable a pre-sentence report and a Justice Plan to be presented. The pre-sentence report assessed the applicant as constituting a high risk of general re-offending. The applicant had agreed to comply with the requirements of a CCO. With ‘hesitancy’ the writer of the report found that the applicant was suitable for the imposition of a CCO, with conditions including unpaid community work, treatment and rehabilitation condition, supervision and a Justice Plan.
On the adjourned plea, the author of the report and Justice Plan, Ms Lillian Kenny, gave evidence. Ms Kenny described the type of programs that would be made available to the applicant. She referred to the availability of accommodation at a disability specific interim justice accommodation service on the applicant’s release. Ms Kenny stated that the applicant would be given quite extensive support, particularly to enable him to access the community, get to programs, and consult a medical practitioner with a view to implementing a mental health care plan.
Reasons for sentence
In his reasons for sentence, the judge referred to the applicant’s deprived background, his impaired mental functioning, his attempts to commit suicide and to self-harm, and his psychological disabilities. The judge accepted that the applicant’s impaired mental functioning had contributed to his offending, and that it was relevant ‘in a number of other respects to the sentencing exercise’. The judge observed that the applicant’s prospects of rehabilitation were very limited, and it was clear that he needed very extensive professional help. In mitigation, the judge took into account the applicant’s early plea as evidence of remorse, and as also having utilitarian benefits.
By the time the judge delivered sentence, the applicant had already been in custody for a period of 9 months. The judge rejected the submission by counsel that a sentence of 10 months, with a CCO upon release with a Justice Plan, was appropriate. The judge considered that in addition to matters personal to the applicant, he must take into account other relevant sentencing considerations. His Honour referred to the need for the sentence to serve the purposes of general and specific deterrence, to manifest the community’s denunciation of the applicant’s conduct, and to protect the community from any repetition of the same type of offending.
The judge accepted that a number of the principles, summarised by this Court in R v Verdins[1] applied. His Honour stated:
As to moral culpability, your organic mental impairment and serious psychiatric illnesses mean that I cannot assume your offending and your past offences demonstrate any conscious disregard for the law or the community. You are also not as appropriate a vehicle for general deterrence as other cases. Your time in prison will weigh more heavily on you than it would for a person in normal health. There is a serious risk imprisonment will adversely affect your mental health and it has already done so it seems. You are on suicide watch, which has meant that you are seeing a health professional in that regard on a weekly basis.
[1](2007) 16 VR 269 (‘Verdins’).
Ground 1: parity
The first ground of the application is that the judge erred in the application of the parity principle by imposing on the applicant an immediate sentence of imprisonment that was 12 months greater than the period of imprisonment imposed on the co-offender Mursal, who was sentenced to a term of imprisonment of 6 months, together with a CCO of 2 years.
In his reasons for sentence in respect of Mursal, the judge noted that the prosecution had ‘sensibly conceded’ that Mursal played a lesser role than the other offenders, and that he had manifested, very early, his remorse for what had occurred. The judge referred to Mursal’s attempt to retrieve the victim’s passport, and the apology that he gave to the victim at the scene for what had happened.
The judge also noted that while Mursal had a criminal record involving a number of court appearances, it did not include any previous convictions for robbery, and was not as serious or extensive as the criminal records of Atkinson or the applicant. The judge also took into account that Mursal had served 104 days ‘dead time’ referrable to a Magistrates’ Court appearance in October 2014.
The judge noted that Mursal was 27 years of age, with a personal history of hardship ‘of the most extreme kind’. Mursal was born in Sudan, and had been exposed to brutality and trauma, in particular in an infamous refugee camp in Uganda. In Australia, Mursal had sustained two serious head injuries which the judge considered lessened Mursal’s moral culpability.
The judge considered that the principles stated by the court in R v Verdins were not relevant in Mursal’s case. However, he accepted the submission that a term of imprisonment would weigh heavily upon Mursal’s health, noting that Mursal had been subjected to a serious attack with boiling water thrown on him while in prison. As stated, the judge imposed a term of imprisonment of 6 months, together with a CCO of 2 years duration. Mursal was required to perform 150 hours community work, with further conditions as to alcohol treatment and rehabilitation, mental health, re-offending education and supervision.
In this application, it was submitted, on behalf of the applicant, that the 12 months disparity in the sentences of imprisonment imposed on the applicant and Mursal is excessive in the circumstances, so as to give rise to a justifiable sense of grievance on behalf of the applicant. In particular, it was submitted that the roles played by the applicant and Mursal were not substantially different. Counsel has pointed to the actions of Mursal in assisting to block the victim from fleeing the scene, and by patting down the victim’s pockets. Accordingly, it was submitted that the judge erred in finding that the Crown had ‘sensibly conceded’ that Mursal had played a lesser role. In addition, it was pointed out that each of the principles stated in Verdins applied to the applicant, but they did not apply to Mursal. While the applicant has relevant previous convictions, and Mursal does not, nevertheless the applicant’s mental impairment had the effect that less weight should be given to the applicant’s previous convictions.
In response, it was submitted that the judge was correct in accepting the concession made by the prosecution that Mursal played a lesser role than the other three offenders. It was pointed out that it was the applicant who initiated the first physical contact with the victim, and in particular the applicant who grabbed the victim and pushed him against the wall. It was the applicant who made the first demand of the victim. While Mursal demonstrated immediate remorse, the applicant did not. In addition, the applicant had a significant list of previous convictions, including for attempted armed robbery, robbery, and attempted robbery. By contrast, Mursal had no such previous convictions. Further, the judge attached to Mursal’s CCO a condition that he complete 150 hours unpaid community work, while the applicant’s CCO did not contain any such condition. Finally, it was pointed out that the sentencing judge took into account 104 days ‘dead time’, served on remand for another matter, in arriving at the sentence imposed on Mursal.
The principles relating to the issue of parity have been well established since the decision of the High Court in Lowe v The Queen.[2] The principle is based on the concept that equal justice requires that, all things being equal, like offenders should be treated in the same way, with the qualification that relevant differences between the culpability of such offenders, and matters personal to them, be appropriately accommodated. Sentencing error, on the basis of disparity, occurs where there is such a ‘manifest’ disparity between the sentences, taking into account any differences between the involvement of the offenders in the particular offence and their personal circumstances, so as to give rise to a justifiable sense of grievance on the part of the appellant and of the objective bystander. The principle was summarised by Beach JA in his recent judgment in Gianello v R[3] in the following terms:
The principles governing parity are well established. As has been said before, 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’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in a way in which he or she did. Where an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way in which he or she did, the approach is relevantly analogous to that which arises when it is said that a sentence is manifestly excessive.[4]
[2](1984) 154 CLR 606, 610 (Gibbs CJ), 613-14 (Mason J), 623-4 (Dawson J); see also Postiglione v The Queen (1997) 189 CLR 295, 301-2 (Dawson and Gaudron JJ), 309 (McHugh J), 323 (Gummow J), 338 (Kirby J).
[3][2015] VSCA 205.
[4]Ibid [29] (Citations omitted).
In the present case, there is, on the face of it, a substantial disparity between the immediate term of imprisonment imposed on the applicant, and that imposed on Mursal. However, as submitted on behalf of the respondent, there are important differences relating to each of those two offenders, and which were taken into account by the primary judge in sentencing each of them.
In our view, the judge was correct in characterising the role played by Mursal, in the offending, as less serious than that of the applicant, or indeed of the other co-offenders. It was the applicant who instigated the approach to the victim, and it was the applicant who made physical contact with him first. That contact was without warning, was forceful, and must have been quite frightening for the victim. Further, it was the applicant who made the first demand of the victim. Thereafter, the applicant remained as a participant in the robbery until the co-offenders decamped. While Mursal also remained, he did try to retrieve the victim’s passport, and he made an apology to the victim at the scene.
In addition, the judge accepted that Mursal had manifested genuine remorse for his involvement in the offence. No such remorse was found to exist on the part of the applicant, other than that evidenced by his guilty plea. While Mursal did have previous convictions, unlike the applicant, he did not have any convictions for robbery or like offences. By contrast, as we stated, the applicant had a number of such convictions, together with other convictions for violence.
Further, in considering the disparity in the terms of immediate imprisonment imposed on the applicant and Mursal, it is important to take into account the ‘dead time’ served by Mursal in respect of an unrelated matter, and the fact that he was required, by the terms of the CCO, to undertake 150 hours unpaid community work. Neither of those factors attached to the applicant.
Of course, not all of the differences between the applicant and Mursal were in favour of Mursal. As counsel for the applicant has pointed out, the applicant has a serious intellectual impairment, and his intellectual deficit and psychological condition were found by the judge to operate as mitigating circumstances in each of the six respects described by this Court in Verdins. However, in our view, the judge was justified in considering that those differences did not offset the matters, that we have already referred to, that weighed in favour of Mursal, in the determination of his sentence, so as to require the judge to impose the same or a similar sentence of imprisonment on the applicant.
The differences between the factors affecting the sentences to be imposed on Mursal and the applicant respectively were significant, taking into account and giving full weight to the factors that weighed in favour of the applicant. The differences were such as to warrant a not insubstantial disparity between the sentences imposed respectively on the two offenders. Views might reasonably differ as to the amount by which the sentence of imprisonment imposed on the applicant should exceed that imposed on Mursal. However, taking the relevant differences, between the cases of Mursal and the applicant into account, we do not consider that the disparity in the terms of immediate imprisonment imposed on the applicant and Mursal respectively could be characterised as manifestly excessive, or so marked as to involve any error in the exercise of the judge’s sentencing discretion in the manner alleged by ground 1. It follows that ground 1 of the application should fail.
Accordingly, we consider that while ground 1 is sufficiently arguable to warrant the grant of leave to appeal in respect of it, the applicant has not made out that ground on full argument. It follows that ground 1 must fail.
Ground 2: manifest excess
In support of ground 2, counsel for the applicant pointed out that, by reason of the term of imprisonment, and the term of the CCO, the applicant would be subject to the sentencing order of the court for a total of 42 months. The CCO required that the applicant receive supervision and obey the directions of Community Corrections staff, and thus constituted a substantial interference with his liberty, and to that extent was punitive. It was submitted that the judge gave excessive weight to the principles of general deterrence and specific deterrence, in light of the applicant’s impaired mental functioning. On the other hand, there was cogent evidence as to the availability of support housing and specialised treatment, that had not previously been available to the applicant, and that would facilitate his rehabilitation. It was submitted that in those circumstances the judge gave excessive weight to the protection of the community.
In addition, counsel relied on a passage from the dissenting judgment of Lasry AJA in DPP v Moore,[5] that an offender’s previous history of re-offending is of less significance, where it is demonstrated that the offender was subject to a disability that had the effect that his or her rehabilitation could not be effected without significant specialised assistance. In the present case, it was submitted that the applicant’s previous history of re-offending was given excessive weight, because it was, in large measure, a product of his mental and psychological impairment.
[5][2009] VSCA 264, [58].
In response, it was submitted that the sentence imposed on the applicant was not wholly outside the range of sentencing options available to the judge. The maximum sentence for the offence was 15 years’ imprisonment. The offence before the court was serious, involving a lone pedestrian, at night, robbed by a group of four people, including the applicant. The applicant had an extensive criminal record, including previous convictions for similar offences. He had only been released for a period of seven days, when he resorted to re-offending. The judge assessed his prospects of rehabilitation as limited. Further, general and specific deterrence must still be given some weight, notwithstanding the applicant’s mental impairment.
In order to establish the second ground, the applicant must demonstrate that the sentence imposed on him was ‘wholly outside the range of sentencing options’ available to the judge.[6] It is not sufficient for the applicant to persuade the court that, in the circumstances, it would or might have imposed a lower sentence than that determined by the sentencing judge. Rather, the sentence must be demonstrated to be manifestly excessive in the sense we have just stated, namely, that it was so excessive as to bespeak error in the exercise of the sentencing discretion, notwithstanding that no specific error can be identified from the reasons for sentence given by the judge.[7]
[6]Clarkson v R (2011) 32 VR 361, 384 [89].
[7]House v R (1936) 55 CLR 499, 505.
In the present case, the objective circumstances of the offending were serious. As the respondent has pointed out, it involved four young men intercepting a lone pedestrian, late at night, and engaging in particularly intimidating conduct towards that victim. The applicant played an important role in the offending. He was the first to intercept the victim, and to make physical contact with him. The applicant remained involved in the offending until the co-offenders left the scene. The fact that the applicant had a number of previous convictions for armed robbery, robbery, and attempted robbery, as well as other offences of violence, would, in the absence of any mitigating circumstances, have the effect that the sentence imposed on him in this case was, to say the least, quite moderate.
It cannot be denied that the applicant had strong and cogent mitigating circumstances in his favour. His significantly impaired intellectual functioning, his psychological conditions, and the level of social dysfunction to which he had been subject from an early age, were all strong mitigating circumstances. As contended on behalf of the applicant, they explained, at least in part, his pattern of repeated re-offending. The applicant’s impaired intellectual and mental functioning mitigated the degree of his moral culpability in the offending, was relevant to the type of sentence that was to be imposed, and was of sufficient severity that the principles of general deterrence and specific deterrence were required to be moderated. In addition, as the judge accepted, in light of the applicant’s condition, a sentence of imprisonment would weigh more heavily on him, and there was a risk that imprisonment might have an adverse effect on his mental state.
The judge was alert to those matters, and in his sentencing reasons, he stated that he gave weight to each of them. As we have stated, the mitigating circumstances, in this case, were significant. However, it must be remembered that the offending in this case was serious. The applicant played a prominent role in the robbery. Giving full weight to the mitigating circumstances, we do not consider that the sentence of 18 months’ imprisonment, together with the two year CCO, could be properly described as being wholly outside the range of sentences available to the judge. In those circumstances, we are not persuaded that ground 2 of the application is sufficiently arguable to justify the grant of leave to appeal in respect of it.
Conclusion
For the foregoing reasons, we would grant leave to appeal in respect of ground 1, refuse leave to appeal in respect of ground 2, treat the appeal in respect of ground 1 as instituted and heard, and dismiss the appeal.
---
3
3
0