R v Charle Azzi - [2003] NSWCCA 10

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Charle Azzi [2003] NSWCCA 10

FILE NUMBER(S):
60481/2002

HEARING DATE(S): 6 February 2003

JUDGMENT DATE: 06/02/2003

PARTIES:
Regina
Charle Azzi

JUDGMENT OF: Hodgson JA Sully J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3304

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

COUNSEL:
P Ingram (Crown)
M Higgins (Respondent)

SOLICITORS:
SE O'Connor (Crown)
Hugh White & Co (Respondent)

CATCHWORDS:
Crown appeal against sentence - question of parity with a co-offender - respondent has an intellectual disability - sentence held to be manifestly inadequate but appeal dismissed in exercise of court's discretion

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
Crown appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60481/02
HODGSON JA
SULLY J
BUDDIN J
6 FEBRUARY 2003

REGINA v CHARLE AZZI

Judgment

BUDDIN J: This is an appeal by the Director of Public Prosecutions, pursuant to section 5D of the Criminal Appeal Act 1912, against what is asserted to be a manifestly inadequate sentence imposed upon the respondent in the Campbelltown District Court on 26 September 2002.
The respondent originally pleaded guilty in the Local Court to an offence, contrary to s 97(1) of the Crimes Act 1900, of robbery whilst being armed with an offensive weapon which he committed on 3 January 2002 (the “Padstow offence”). The maximum penalty prescribed for the offence is a term of imprisonment for 20 years. The respondent adhered to his plea of guilty when he appeared for sentence in the District Court. On that occasion the respondent requested that the sentencing judge also take into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999, a further offence of a similar nature which had been committed four days before the “Padstow offence” on 30 December 2001 (“the Moorebank offence”). The respondent was sentenced by Judge Goldring to imprisonment for a period of two years which was ordered to commence on the day on which sentence was imposed. His Honour made an order, pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, for the suspension of the execution of the sentence which order was conditional upon the respondent entering into a bond, attached to which there were various conditions.
The facts giving rise to the two offences in question, are not in dispute, and may be briefly stated. In relation to the “Padstow offence”, the respondent drove himself and his co-offender (his then girlfriend “MM”) to the vicinity of a service station in Padstow where, for some time, they observed patrons coming and going from the premises. Having covered their faces with balaclavas, they then ran towards the entrance of the service station. The respondent ran into the premises wielding a piece of timber measuring about a metre in length. He raised it above his head and demanded that the console operator open the till. Fearing for his safety the operator proceeded to do so. The respondent took possession of the till and ran from the premises with MM, who had remained at the entrance acting as a lookout. The console operator recorded the registration number of the vehicle in which the offenders left the scene. Police were notified of the number. The vehicle was then driven to the home of a friend where the contents of the till were removed. The offenders thereafter returned to the vehicle.
A little later the vehicle was intercepted and the offenders were apprehended. Police took possession of a length of timber and a bread bag containing coins to the value of $98.65. A search of the respondent’s wallet revealed the sum of $191.85 in various denominations. A screwdriver was also located. MM admitted to having had possession of it during the robbery but said that she did not produce it during the course of the offence. Nor did the victim appear to be aware of its presence. MM assisted police to locate the balaclava which the respondent had discarded, together with the till which had been left behind at the friend’s place, as well as yet further tills, associated with other matters, which had been abandoned.
The “Moorebank offence” also involved a service station. On this occasion the offenders wore coloured tracksuit tops with hoods in order to conceal their faces. The respondent, who was armed with what was variously described as a length of timber or a large stick, approached the victim who was working at the service counter which in turn was enclosed behind a security window. He demanded money from the victim who activated the duress alarm button. The respondent tried unsuccessfully to jemmy open the service counter tray with the stick but managed only to break the tray. The respondent then grabbed several Cherry Ripe chocolate bars worth about $20 from the display shelf in front of the security window. He and MM then ran from the scene. The respondent denied any involvement in this offence when initially spoken to about it and exercised his right to remain silent when interrogated about it again some time later. He did however immediately admit his involvement in the Padstow robbery.
It is pertinent at this juncture to observe that MM was sentenced on 26 June 2002 by Judge Payne. Her Honour’s remarks on sentence were before Judge Goldring when his Honour sentenced the respondent. MM pleaded guilty to an indictment containing three counts of armed robbery contrary to s 97(1) of the Crimes Act 1900. In addition to the “Padstow” and “Moorebank” matters which she committed in company with the respondent, MM also pleaded guilty to an offence committed at West Pennant Hills. In respect of the “Padstow offence”, Judge Payne sentenced MM to a term of imprisonment of 2 years but an order was made, pursuant to s 12 of the Crimes (Sentencing Procedure) Act, suspending the execution of the sentence. Judge Payne, having acknowledged the need to comply with the requirements of the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610, imposed two cumulative sentences of 200 hours community service for each of the Moorebank and West Pennant Hills matters.
In sentencing MM, Judge Payne took into account a number of considerations which were relevant to that offender. They included the following matters:
(a)          her full admissions to all three offences upon arrest;
(b)          her pleas of guilty at the “very earliest opportunity”;
(c)          her contrition and remorse;
(d)          her prior good character; and
(e)          her excellent prospects for rehabilitation.
Her Honour also found, upon the material before her, that MM had played a lesser role in the commission of the offences. It appears, upon the material before us at least, that the respondent had suggested to MM that rather than have her return to work in a massage parlour it would be preferable for them to raise money by committing an armed robbery. Her Honour also found that MM’s offending behaviour was related to the abusive relationship which she had with the respondent. Indeed, the respondent was dealt with in the Local Court for assaulting her and for breaching an apprehended violence order, in respect of which offences he had been placed on a bond. It would appear that her Honour was favourably impressed by MM who gave sworn evidence during the course of her sentence proceedings.
Her Honour also took into account the fact that MM’s admissions to her involvement in the Moorebank and West Pennant Hills offences entitled her to additional leniency, in accordance with the principles identified in R v Ellis [1986] 6 NSWLR 603, by reason of her disclosure of involvement in offences about which the authorities were otherwise unaware. Moreover, and significantly, MM had disclosed to police the involvement of the respondent in both the Padstow and Moorebank offences. She had also indicated her preparedness to give evidence against the respondent in respect of those matters and had signed undertakings to that effect. Accordingly Judge Payne concluded that an overall discount of 50% was called for to give effect to her pleas of guilty and her assistance to the authorities.
Her Honour then referred to this Court’s guideline judgment in R v Henry (1999) 46 NSWLR 346 in which it was said that in the usual case a range of four to five years’ imprisonment was appropriate for offences of armed robbery in which there were present a number of features which the Court identified.
Her Honour determined that the features identified in Henry as being common in a typical case of armed robbery were all present in MM’s case save for the fact that the weapon used in this case is not normally regarded as being a lethal weapon, at least not in the same way as is a knife or a gun.
In respect of the Padstow offence, Judge Payne indicated that the starting point sentence for MM would have been one of four years’ imprisonment. That figure was then discounted by 50% to produce a sentence of two years’ imprisonment. Her Honour having found, by reason of the matters to which I earlier referred that the case involved exceptional circumstances then, as I have observed, wholly suspended the execution of that sentence. It is to be noted that there has been no Crown appeal in respect of the sentences imposed upon MM.
In sentencing the respondent, Judge Goldring properly acknowledged that in determining the appropriate sentence, he was obliged to give effect to the principle enunciated in Henry that “normally, other than in the most exceptional circumstances, there should be a substantial sentence of full-time custody.” His Honour then observed that “but for two matters peculiar to this case that is the sentence which I would have to impose.” A little later, his Honour said “it seems to me that it would fly in the face of parity to impose on Mr Azzi a sentence which was more onerous than that imposed on his co-offender. This is, in my view, an exceptional case because of his disability and because of the fact that the co-offender has been sentenced in a particular way.”
At the forefront of the Crown’s argument is a contention that the sentencing judge erred in concluding that this was an exceptional case warranting departure from the guideline promulgated in Henry particularly given the extent of the departure. More specifically it is submitted that the sentencing judge erred in concluding that the two matters, which his Honour identified as constituting “exceptional circumstances” could not, in the circumstances of this case, be properly so described.
In further support of its contention that the sentence imposed was manifestly inadequate, the Crown points to the fact that there was a separate serious offence of a similar nature to be taken into account on the Form 1. In short, the submission is that the sentence imposed makes it apparent that there has not been an appropriate increment in the term of the sentence to reflect the fact that the sentencing judge was also dealing with the “Moorebank offence”. See R v Barton (2001) 121 A Crim R 185; Attorney-General’s Application No 1 of 2002 [2002] NSWCCA 518. Nor, it might be observed, did his Honour make any reference to the fact that he had given effect to this principle. In the circumstances that of itself, it is said, bespeaks error.
As has been observed, the sentencing judge regarded the case as an exceptional one in part by reason of the fact that the co-offender had received a two year suspended sentence, and that the principles of parity would accordingly be offended were the respondent to be treated in a way that was “more onerous.” In relation to the issue of the co-offender’s assistance to the authorities, which fell to be considered pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999, the sentencing judge said that “the co-offender did give assistance to the police but that was in locating the balaclava. On the facts as presented before me I am not certain that the assistance she rendered was essential to the Crown case because that was a strong case with photographic evidence from surveillance videos and a clear indication of a registration of the vehicle.”
The Crown submits that in the passage to which I have just referred, the sentencing judge has minimised the extent of the assistance proffered by the co-offender and has apparently overlooked its significance. It is contended that the sentencing judge referred only to the Padstow offence and thus completely ignored the assistance provided in relation to the Moorebank matter and that even in relation to the Padstow offence, what his Honour said did not accurately characterise the extent of the assistance. More fundamentally however the Crown complains that the sentencing judge has treated in similar fashion two offenders whose circumstances called for different treatment. Put simply their cases were distinguishable, it is submitted, principally because the respondent was not entitled to any discount for having provided assistance to the authorities whereas MM was so entitled and moreover had for that very reason been provided with a substantial discount.
The other matter upon which the sentencing judge relied, in concluding that the case was an exceptional one, was the respondent’s intellectual disability. As to this matter his Honour said that:
It is clear from the report of Ms Duffy, psychologist, and also from the pre-sentence report from the Probation and Parole Service that Mr Azzi has some quite profound disabilities in terms of comprehending the nature of what is right and wrong. That does not mean that he cannot understand what is right and wrong but it is an established principle that when people are suffering from the sort of disabilities from which he suffers, i.e. that his Intelligence lies in the Mildly Retarded Range. [sic] This is described by the psychologist as an intellectual disability. It also renders him more gullible, easily influenced and manipulated by others and there are some emotional difficulties. In a case of a person such as Mr Azzi the element of general deterrence is not so strong as it would be otherwise.
The principles to be applied in such cases are not controversial. In R v Letteri (unreported) NSWCCA, 18 March 1992, Badgery-Parker J (with whom Gleeson CJ and Sheller J agreed) said:
…whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise…(at 14)
In R v Wright (1997) 93 A Crim R 48 Hunt CJ at CL (with whom Gleeson CJ and Hidden J agreed) said:
… It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder of abnormality because such an offender is not an appropriate medium for making an example to others. In most of the cases in which that principle is applied, the offender has suffered from significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied. Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender’s mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great…(at 50–1)
The Crown appears to acknowledge that some moderation of the otherwise appropriate penalty was called for on account of the respondent’s intellectual disability but submits nevertheless that his condition was not such as to warrant a finding that it constituted an exceptional circumstance and that accordingly the sentencing judge has given insufficient weight to the principle of general deterrence.
Notwithstanding the importance of this feature of the case, and the other matters in mitigation upon which the respondent was properly entitled to rely such as his early plea of guilty for which he received a discount of 25%, I am of the view that the sentence imposed was manifestly inadequate. In coming to that conclusion I am mindful of the well-established line of authority to the effect that very considerable restraint must be exercised in relation to Crown appeals. Nevertheless this was an offence of considerable objective gravity as was the matter on the Form 1 document. An appropriately salutary penalty was called for. Accordingly I accept the Crown’s submission that this was not an exceptional case of a kind that warranted such a sharp departure from the range of appropriate sentence identified in Henry as that which was imposed by the sentencing judge. I also accept the Crown’s submission that the sentencing judge erred in his application of the principles of parity when the circumstances of the respondent and MM were clearly distinguishable in a number of respects.
In my view when proper weight is given to the various considerations which touch upon the question of re-sentencing, an appropriate disposition of the matter would have been an order that the respondent serve a term of imprisonment by way of periodic detention.
However as I have observed, a significant feature of the case is the respondent’s intellectual condition which Ms Duffy described in her report as “evidencing [a] pronounced developmental disability.” Moreover Ms Duffy said that given his “intellectual disability as well as emotional factors such as his high stress levels, it would be very harmful for him to be incarcerated. He would be at risk of being either adversely influenced by other inmates or exploited and manipulated by them into antisocial activities.”
That conclusion, which was not the subject of challenge, led the Court to seek further information from the Crown concerning the circumstances in which an order for periodic detention might be served by the respondent, were the court minded to make such an order. The Crown has today sought to address the matters raised by the Court. It has not applied to have the proceedings adjourned to allow it further time in which to obtain more complete information. That was an appropriate course for it to adopt particularly in light of the fact that more than four months have now elapsed since the respondent was originally sentenced. Moreover the possibility of an order for periodic detention was clearly signalled by the respondent in his written submissions as being a possible disposition of the appeal that may find favour with the court and thus there has been adequate time in which this matter could have been fully explored. Having had regard to the material provided to the Court by the Crown I am far from satisfied that suitable arrangements can or rather would be made for the proper supervision of the respondent given his particular vulnerability, were an order made that he serve a term of periodic detention. Accordingly I would be disposed in those circumstances to propose that the Court should exercise its undoubted discretion not to intervene and proceed to re-sentence the respondent.

I might add that I am fortified in that view because when it was indicated to the Crown, who appeared on this appeal, that this was a course which was likely to commend itself to the Court, he adopted the very responsible position of indicating that there was nothing which he wished to say to seek to persuade the Court to take a different view.
The order which I will shortly propose should not be misunderstood as having any application beyond the unusual circumstances of the present case. Nor should the respondent be under any misapprehension but that this represents his last chance of ensuring that he remains free in the community.
I propose that the Crown appeal be dismissed.
HODGSON JA: I agree.
SULLY J: I agree.
HODGSON JA: The order of the Court is that the Crown appeal is dismissed.

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LAST UPDATED: 10/02/2003