R v ALZUAIN
[2013] SASCFC 45
•31 May 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ALZUAIN
[2013] SASCFC 45
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Kelly)
31 May 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - AFFRAY, RIOT, UNLAWFUL ASSEMBLY AND LIKE OFFENCES - AFFRAY
Appeal against sentence - appellant pleaded guilty to the offence of affray, contrary to s 83C(1) of the Criminal Law Consolidation Act 1935 (SA) - appellant sentenced to a term of imprisonment for nine months - whether sentence was manifestly excessive - whether sentencing Judge gave full credit for the plea of guilty, and whether the failure to delineate the precise amount of credit was in error - whether sentencing Judge failed to take into account time spent in custody and on home detention bail - whether the sentence is disparate when compared to the sentence imposed on the accused's co-offender Mr Hopwood.
Held per Kelly J (Sulan and Vanstone JJ concurring): appeal dismissed - sentence was moderate and not manifestly excessive - sentence reflects that the sentencing Judge gave credit for the plea of guilty and took into account all relevant circumstances - difference in sentences imposed on appellant and Mr Hopwood may be attributed to their different roles in the offending and personal circumstances - in any event, there is no significant disparity between the sentences imposed on the appellant and Mr Hopwood.
Criminal Law Consolidation Act 1935 (SA) s 83C(1), referred to.
R v Varano (1989) 150 LSJS 140; R v Angus [2004] SASC 317, considered.
R v ALZUAIN
[2013] SASCFC 45Court of Criminal Appeal: Sulan, Vanstone and Kelly JJ
SULAN J: I would dismiss the appeal. I agree with Kelly J.
VANSTONE J: I would dismiss the appeal. I agree with the reasons of Kelly J.
KELLY J:
This is an appeal against a sentence imposed in the District Court on 20 December 2012.
The appellant pleaded guilty to an offence of affray, contrary to s 83C(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for the offence of affray is three years imprisonment. The learned sentencing Judge imposed a term of imprisonment of nine months to commence on 20 December 2012. The Judge declined to suspend the sentence.
A Judge of this Court granted permission to appeal on 11 February 2013. The appellant’s central argument on appeal is that the sentence imposed is manifestly excessive. He contends that the sentence was excessive in that the Judge failed to take into account the time spent in custody and on home detention bail and to specify the extent of the discount for the plea of guilty. The appellant also complains that the sentence imposed on him is disparate when compared to the sentence imposed upon the co-offenders, in particular, the co-offender named Hopwood.
Relevant background
The appellant was born on 1 October 1987. At the time when he committed the offence of affray he was 22 years old. By the time he was sentenced he had turned 25.
The events which gave rise to the charge of affray occurred in the Myer department store at Tea Tree Plaza on 29 July 2010. On 23 October 2010 the appellant was charged with the offence of aggravated causing harm with intent to cause harm. The prosecution later elected not to proceed with that charge. On 16 July 2012, the appellant and his co-offenders were charged with and pleaded guilty to the offence of affray.
This appellant is not a first offender. He has previously been convicted for assault occasioning actual bodily harm. In July 2006, the appellant was found in possession of a loaded firearm in a public place and in possession of drugs for sale.
The factual basis for sentence was the subject of a disputed facts hearing. In fact, the Judge heard extensive submissions and evidence about the precise events which occurred before and during the incident in the Myer department store. His Honour made a number of findings of fact. Those findings are not challenged on appeal and provide the basis for the summary set out below.
On the day of the offence, the appellant and his co-offenders, together with others, approached the victim in the cosmetics section of the Myer store at Tea Tree Plaza shopping centre. The sole purpose of the approach to the victim was to use or threaten unlawful harm against him. The incident was not spontaneous. The Judge found that the appellant and the others entered the cosmetic section “with purpose”.
The appellant was the first to strike the victim. He punched the victim and then held the victim while a co-offender, Mr Eliassi, hit him. A scuffle ensued; the victim fell to the ground. Another co-offender, Mr Hopwood, kicked the victim while he was on the floor. A third co-offender, Mr Moradi, encouraged the offending by his presence.
Following the attack, the victim was conveyed to Modbury Hospital. He had a graze to his chin, tenderness behind his left ear and a wound to his right flank. The wound was sutured and the victim remained in hospital overnight for observation. He was discharged the next day.
Having summarised the circumstances of the offending, the Judge then considered its objective seriousness. Although his Honour was unable to find that the offence was associated with gang conflict, he nevertheless considered that the conduct was “thuggish, gratuitous, cowardly and alarming”. Customers and staff in the store were frightened. In these circumstances his Honour emphasised the need for personal, and particularly general, deterrence.
The Judge imposed a sentence of eight months imprisonment on the co‑offender Mr Eliassi. He suspended the term on Mr Eliassi agreeing to enter into a bond to be of good behaviour for three years. In sentencing Mr Eliassi, the Judge noted and had regard to a number of reports which related to some significant mental health issues suffered by Mr Eliassi.
The Judge sentenced Mr Moradi to four months imprisonment which he suspended on Mr Moradi agreeing to enter into a bond to be of good behaviour for three years. When sentencing Mr Moradi the Judge commented that of each of the offenders, Mr Moradi’s sentence was “the most straightforward”.
When sentencing the third co-offender, Mr Hopwood, the Judge noted that he had been previously sentenced for an assault causing harm in October 2009. That sentence had been suspended on Mr Hopwood agreeing to enter into a bond to be of good behaviour. The offence of affray committed at Tea Tree Plaza breached that good behaviour bond. In addition, prior to his sentencing, Mr Hopwood had spent eight days in custody and another four months on home detention bail in respect of the current offending.
The Judge revoked Mr Hopwood’s suspended sentence and ordered that the four month sentence previously imposed be carried into effect. He then sentenced Mr Hopwood to eight months imprisonment for the current offence of affray, which sentence was to be served cumulatively upon the four months, making a total head sentence of 12 months imprisonment. A non-parole period of five months was imposed.
When sentencing the appellant, the Judge observed that the appellant had instigated the violence upon the victim and that his role in the offending was “serious and significant”. He then imposed a term of imprisonment of nine months which he declined to suspend.
Submissions on appeal
At the hearing of this appeal, counsel for the appellant advanced three main contentions. The first was that the sentence was manifestly excessive; the second, a complaint that the Judge gave insufficient credit for the appellant’s plea of guilty and in respect of time spent in custody and on home detention; and the third, a complaint that there is a lack of parity between the sentence imposed on the appellant and the other three co-offenders.
With respect to the first complaint, the appellant submitted that even if the Judge had adopted a starting point in the vicinity of 12 months, that starting point was far too high for an offence of affray committed in the circumstances as found by the Judge. Counsel for the appellant pointed out features of the offending which she said ought to have led the Judge to categorise the offending at the lower end of seriousness for an offence of affray. She pointed to the brevity of the incident, which lasted for less than 60 seconds, the fact that there was nobody seriously injured in the affray, and the fact that no weapons were used. There was no evidence of any lengthy premeditation and the extent of the appellant’s involvement did not go beyond punching the victim once and then holding him while another offender hit him a number of times.
With respect to the second complaint that insufficient credit was given for the appellant’s plea of guilty, the appellant argued that, notwithstanding the Judge’s explicit comment that “you, along with the others, should be given full credit for your pleas”, in fact the Judge did not give the appellant full credit. This was said to follow from the fact that, even if allowing for full credit, the mooted starting point of 12 months was simply far too high. In support of this ground it was also argued that the failure to delineate the precise quantum of credit given to the appellant was an error justifying the intervention of the appellate court. The appellant argued that even though the appellant gave evidence on a disputed facts hearing, which evidence was ultimately rejected by the Judge, that evidence was confined to a very discrete aspect of the offending, namely his reason for his involvement in the affray, and was not a proper basis on which to deprive the appellant of full credit for the plea of guilty.
With respect to the third complaint of disparity, the appellant’s argument focused mainly on the disparity between the appellant’s sentence and the sentence of eight months imposed on Mr Hopwood, which the appellant argued was the most significant disparity between the appellant’s sentence and the other co-offenders. Although it was conceded that the appellant did have a criminal history, which included a conviction for assault occasioning actual bodily harm and in July 2006 a conviction for possession of a loaded firearm in a public place and possession of drugs for sale, the appellant argued that the last significant criminal offending were the offences in July 2006. Since then he had not been sentenced to any term of imprisonment. These circumstances only accentuated the alleged disparity.
Discussion
It cannot be overlooked that this offence took place in the cosmetic department of a major department store, during a busy period of late night trading, when there were a number of other members of the public about. That much is obvious from the closed circuit television footage tendered before the Judge. It is also obvious from that footage that the other customers present in the store at the time were intimidated by what took place.
The Judge sentenced the appellant on the basis that his role in the offending was serious and significant, in that he was the instigator of the violence against the victim by punching him and then holding him down while another offender hit him.
In these circumstances, the Judge was right to regard both general and personal deterrence as very important considerations in sentencing. Although we were referred to other cases involving the offence of affray, there is no tariff for this offence and the other authorities were not of any real assistance with regard to the circumstances of this offence.
Moreover, the appellant chose to give evidence on a disputed facts hearing as to the extent of premeditation involved in the attack upon the victim. The appellant’s evidence was ultimately rejected by the Judge. This conduct did not indicate any real contrition or remorse on the part of the appellant. On the contrary, it might be said that the Judge’s conclusion that the appellant should be given full credit for his plea was unduly favourable.[1]
[1] See R v Varano (1989) 150 LSJS 140; R v Angus [2004] SASC 317.
It is true that the Judge did not indicate the extent of the discount given for the plea. For a long time this Court has encouraged judges to indicate the extent of the discount. Failure to do so, however, is neither an error of principle in itself nor a ground to interfere with the sentence. In any event, the Judge indicated that the appellant should be given full credit for his plea and I am not prepared to infer that he did not act on that clearly expressed intention. He explicitly referred to the time spent in custody and on home detention bail by the appellant. In these circumstances it cannot be accepted that his Honour overlooked that factor.
In any event, whilst it can be accepted that in the usual course credit for time spent in custody might be given, there is no particular practice in relation to any credit which might be given for time spent on home detention bail. That is a matter very much in the discretion of the Judge. Nevertheless, for the reasons I have expressed, as his Honour explicitly referred to both periods of time, I am not prepared to infer that he has overlooked that factor when imposing sentence.
This was in all of the circumstances a serious, unprovoked attack on the victim as he went about his business in the cosmetics departments of a public store. It was a serious matter and a starting point of 12 months was well within the range available to the Judge.
For these reasons I do not accept the submission that the Judge gave insufficient credit for the plea of guilty.
With regard to the third complaint of alleged disparity, I would first make the obvious point that this is not a case where different judges dealt with the co‑offenders. All matters relevant to the roles of the offenders and their personal circumstances were before the Judge under appeal. It can be seen from the facts found by the Judge that there were a number of relevant differences between the appellant and each of his co-offenders. The first and obvious matter to note in this context is the role the appellant played, which, as the Judge noted, was instigator of the attack.
There is a further basis for differentiation when the personal circumstances of each of the co-offenders are taken into account. There were proper grounds to distinguish Mr Hopwood both in relation to his prior criminal record and his personal circumstances. Moreover, as the Judge noted, Mr Hopwood since the offending had moved interstate and made efforts to distance himself from his previous associates. No such suggestion was put on behalf of the appellant. To the contrary, there was no evidence of any contrition or remorse, as demonstrated by the appellant’s lies on the disputed facts hearing regarding the circumstances of his involvement in the offence.
In any event, Mr Hopwood received a sentence which was only one month less than the sentence imposed on the appellant. This is hardly a basis to suggest any significant disparity.
In summary, I do not consider there is any substance in the complaint that there is any relevant disparity between the sentence imposed on the appellant and his co-offenders. The Judge said that the appellant was entitled to full credit for a plea of guilty in circumstances where that conclusion might be thought to be overly generous. Nevertheless, I infer from his sentencing remarks as a whole that the Judge in fact did accord the appellant full credit for the plea of guilty. I do not accept in the circumstances in which this offence was committed that a starting point of something like 12 months was manifestly excessive. The appellant has not demonstrated any relevant disparity between his sentence and the sentences imposed on any co-offender.
For these reasons I would dismiss this appeal.