R v Cheraghi

[2020] NSWCCA 70

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Cheraghi [2020] NSWCCA 70
Hearing dates:	14 February 2020
Date of orders:	15 April 2020
Decision date:	15 April 2020
Before:	Simpson AJA; Beech-Jones J; N Adams J
Decision:	1. Refuse leave to appeal against conviction. 2. Dismiss the appeal against conviction. 3. Grant leave to appeal against sentence. 4. Dismiss the appeal against sentence.
Catchwords:	CRIME — Appeals — Appeal against conviction — Direction about ERISP evidence of co-accused — Unanimous verdict — Whether not guilty is the default position for undecided jury — Appeal against sentence — Manifest Excess — Weight to be given to applicant’s subjective circumstances — Aggravating factors — Relevance of time spent in immigration detention
Legislation Cited:	Crimes Act 1900 (NSW) s 112(2), s 148 Crimes (Sentencing Procedure) Act 1999 (NSW), s 5, s 21A, Part 3, Div 1A, s 44, s 47(2)(s), s 47(3), s 54B Criminal Appeal Rules (NSW), r 4 Jury Act 1977 (NSW), s 55F
Cases Cited:	Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 Magro v R [2020] NSWCCA 25 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mulato v R [2006] NSWCCA 282 R v Pham [2005] NSWCCA 94 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category:	Principal judgment
Parties:	Edris Cheraghi (Applicant) Regina (Respondent)
Representation:	Counsel: Mr P Segal (Applicant) Ms F Williams (Respondent)   Solicitors: Brock Partners (Applicant) NSW Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/250415
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 14 December 2018 Before: Colefax SC DCJ File Number(s): 2015/250415

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant and Mr Tajik were each charged with an offence of breaking and entering a dwelling house and committing a serious indictable offence therein, in a circumstance of aggravation contrary to s 112(2) of the Crimes Act 1900 (NSW). The serious indictable offence was assault occasioning actual bodily harm, and the circumstance of aggravation was knowing that a person was in the premises. They were also both charged with stealing under s 148 of the Crimes Act 1900 (NSW). Both offences were alleged to have been committed during the early hours of 26 August 2015. On 30 August 2018 the jury returned unanimous verdicts of guilty against each accused on the first count and were unable to reach a unanimous or majority verdict on the second count.

The applicant sought leave to appeal against his conviction on two grounds relating to the directions given to the jury by the trial judge. Leave was required under r 4 of the Criminal Appeal Rules (NSW) as, at first instance, neither of these directions was objected to, nor was any request for correction or clarification made. The grounds of appeal against conviction were pleaded as follows:

“Ground One – the Learned trial Judge’s direction in relation to the ERISP of the co-accused Hamid Tajik did not clearly indicate that the evidence was not evidence against the appellant.

Ground Two – the Learned Trial Judge in giving directions about unanimous verdicts misdirected the jury in relation to the ‘default position’ should a juror not be able to decided [sic] that the appellant was guilty.”

Respectively to the grounds of appeal, the impugned comments are as follows:

(1) “Mr Tajik did not exercise his right to silence in so far as the police were concerned and you are entitled to take his version of events as given by him to the police into account”, and

(2) “Not guilty is not a default position to a failure to agree about guilt”.

The applicant sought leave to appeal against sentence on the sole ground that “the penalty is too severe”. The applicant was sentenced to an aggregate term of imprisonment of five years and six months, with a non parole period of three years and seven months.

Held, refusing leave to appeal against conviction and granting leave to appeal against sentence but dismissing the appeal (per Simpson AJA, Beech-Jones J and N Adams J):

In relation to ground one:

(1) There was nothing in the record of Mr Tajik’s interview that called for a direction of the kind it is now contended should have been given. Counsel was unable, when pressed, to identify any answers in Mr Tajik’s interview that could have been used adversely to the applicant. Had the direction sought on appeal been perceived by trial counsel to be necessary, it could have been sought: at [25], [29].

In relation to ground two:

(2) There was no prospect of confusion resulting from the direction. The direction concerned the inability of the jury as a whole to reach a unanimous verdict, whether it be guilty or not guilty, it was not about a “default position” of individual jurors, but about the “default position” with respect to the collective view of the jury. The failure of the jury to agree on the second count against each accused is ample evidence that they understood that direction: at [33]-[34].

In relation to sentence:

(3) Overall, although the sentence imposed was a stern one, the Court was not satisfied in all of the circumstances the applicant had established that the sentence imposed on him was “unreasonable” or “plainly unjust”.

Judgment

1. THE COURT: On 14 August 2018 the applicant, Edris Cheraghi, and another man (Hamed Tajik) were arraigned in the District Court on an indictment that contained two counts. Each was charged with:

(i)    breaking and entering a dwelling house and committing a serious indictable offence (assault occasioning actual bodily harm) therein, in circumstances of aggravation (knowing that a person was in the premises); Crimes Act 1900 (NSW) s 112(2);

(ii)   stealing (Crimes Act, s 148).

2. Each accused entered a plea of not guilty to each charge, a jury was empanelled and a trial proceeded. On 30 August 2018 the jury returned unanimous verdicts of guilty against each accused on the first count and advised the trial judge that they had been unable to reach a unanimous verdict on the second count. The trial judge gave a direction in accordance with Black v The Queen (1993) 179 CLR 44; [1993] HCA 71. Later on the same day the jury again advised that they were unable to reach unanimous verdicts on count 2. Despite a direction pursuant to s 55F of the Jury Act 1977 (NSW), the jury was unable to reach a majority verdict on that count. The jury was then discharged in respect of that count without verdict.

3. The maximum penalty applicable to an offence against s 112(2) is imprisonment for 20 years. Pursuant to Part 3, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”), a standard non-parole period of 5 years is applicable. On 14 December 2018 the trial judge sentenced the applicant to imprisonment for 5 years and 6 months with a non-parole period of 3 years and 7 months.

4. The applicant now appeals against the conviction and seeks leave to appeal against the sentence imposed. He pleads two grounds of appeal against conviction, each concerning directions given (or not given) by the trial judge. The first ground complains that an appropriate direction was not given in relation to the use that the jury might make of an interview in which Mr Tajik had participated. The second ground concerns directions given with respect to the requirement of unanimity.

The Crown case

5. The Crown case may be summarised as follows.

6. In the early hours of 26 August 2015 the two accused travelled to the home of Mr Miremad Bahrami, with whom they were acquainted. All 3 are members of the Iranian community. Mr Bahrami was asleep in the home, which he rented, and which he shared with another man, Mohammed Khaef. Mr Khaef was not present at the time, having left early for work. The lock on the back door of the house was broken so Mr Bahrami used a chair and dumbbells to wedge it closed. At about 4.00 am Mr Bahrami heard noises from the back door and armed himself with a baseball bat. The two accused entered the home; both were wearing rubber gloves. The applicant was wearing a “scary” Halloween mask and was armed with a knife. Mr Tajik was wearing a black balaclava. The applicant brandished the knife at Mr Bahrami and stabbed him in the upper left arm, causing a cut, and threatened to “cut [him] in pieces”. He seized the baseball bat and pushed Mr Bahrami onto a bed. While the applicant was doing this Mr Tajik searched the premises and took possession of anything he considered to be of value. This included a laptop computer as well as various other items. This property was the subject of the second count.

7. Mr Bahrami recognised the voice of Mr Tajik. He was able to remove Mr Tajik’s balaclava and recognised his face. The applicant removed his Halloween mask and Mr Bahrami also recognised him.

8. DNA was taken from the Halloween mask and was tested. Evidence of the testing showed that neither the applicant nor Mr Tajik could be excluded as contributors.

9. Records of a mobile telephone registered to the applicant, and one used by Mr Tajik, showed that 6 calls and 5 text messages had been made between the two telephones between 2.29 am and 3.25 am on 26 August 2015.

10. The applicant was arrested at 2.50 pm on the same day. When cautioned he said that he understood, but:

“I didn’t do anything.”

He declined to take part in an interview.

11. Mr Tajik was arrested a month later, on 26 September 2015. The following day he took part in an interview which was electronically recorded. The interview was entirely exculpatory.

12. In that interview Mr Tajik denied any involvement in the offence. He told police that he had heard of the break in of Mr Bahrami’s house, but said that he was not involved. He said that he knew the applicant, but not well, that they did not “hang out” together and that he only saw the applicant occasionally and then by chance. He said that he had not had much or recent contact with the applicant and volunteered:

“I’ve not had any connection or talks on that night with Eddie [the applicant], you can check my phone. No. I did not tell him. It’s a simple thing, Sir.”

13. He initially denied having been to Mr Bahrami’s house but later said that he had visited one evening between 6.00 and 7.00 pm, alone, around 26 August 2015, in order to collect a debt from Mr Bahrami.

14. During the course of the interview Mr Tajik asserted that Mr Bahrami owed him $700 for a laptop he had purchased from Mr Tajik. He returned to this on a number of occasions throughout the interview, and said that he had been asking for repayment for several months.

The trial

15. The principal prosecution witness in the trial was Mr Bahrami. He gave evidence through an interpreter. He was extensively cross-examined by counsel for both accused. The applicants’ case can be discerned from the cross-examination of Mr Bahrami. Essentially, the applicant attempted to discredit Mr Bahrami. It was put to him that, on the morning of 26 August 2015 he was:

“…having some type of drug induced attack of paranoia,”

an accusation which he rejected.

16. It was put to him that he had lied to police when identifying the property that had been stolen, with particular reference to the laptop computer, and that he had lied in other specified respects. It was put to him, alternatively, that the attack had never happened, and that, if it had, the applicant was not involved. All of this he denied.

17. The recording of Mr Tajik’s interview was tendered. It is apparent that the recording had been, to some extent, edited, with the deletion of certain questions and answers. On the material before this Court it is not apparent how or why this happened, but it may be taken that questions or answers that may have been damaging to the applicant were among the deletions.

18. At the time of the tender of the record of Mr Tajik’s interview the trial judge gave an extensive and detailed direction concerning the right to silence, with particular reference to the fact that the applicant had not participated in such an interview. The direction was plainly designed to circumvent any prejudicial inference the jury might have drawn by contrasting Mr Tajik’s willingness to take part in an interview with the applicant’s decision not to do so. No complaint is made about this direction.

19. Neither the applicant nor Mr Tajik gave or called evidence in the trial. The trial judge summed up. We will deal below with those aspects of the summing up that give rise to the grounds of appeal.

20. It appears that, towards the end of the summing up, but before the jury had formally retired, they presented the judge with a note containing a number of questions. Those questions have not been recorded in the transcript, and the note is not before this Court. However, at least one of the questions was interpreted by counsel then appearing for the applicant to raise “an issue of claim of right”. This may be taken to have been prompted by Mr Tajik’s multiple references in his interview to money owing to him by Mr Bahrami for the laptop that said he had sold to Mr Bahrami.

The grounds of appeal

21. The grounds of appeal against conviction are pleaded as follows:

“Ground One – the Learned trial Judge’s direction in relation to the ERISP of the co-accused Hamid Tajik did not clearly indicate that the evidence was not evidence against the appellant.

Ground Two – the Learned Trial Judge in giving directions about unanimous verdicts misdirected the jury in relation to the ‘default position’ should a juror not be able to decided [sic] that the appellant was guilty.”

Ground one: the directions concerning the co-accused’s interview with police

22. We have referred above to the direction given by the trial judge when the record of Mr Tajik’s interview was put before the jury. No complaint is made about that direction.

23. In the summing up, his Honour reinforced that direction, applicable to both accused, with respect to their decisions not to give evidence in the trial. He added:

“Mr Cheraghi exercised his right to silence in this trial. You know that he did not speak with police. When that evidence was put before you, I gave you a direction about his right to silence and the fact that he chose not to answer questions from police, was his exercising a right that you and I have, and it would be wrong for you to hold it against him in any way, for exercising what is his right. But the right to silence does not end at the police station. It extends into this court room. Mr Cheraghi chose not to go into the witness box. That was his right. He is entitled to say to the Crown, ‘I am innocent. The law says I am innocent. You prove that I am not.’ You are not to hold it against him (or indeed Mr Tajik) that they exercised their right to silence in the court room. Mr Tajik did not exercise his right to silence in so far as the police were concerned and you are entitled to take his version of events as given by him to the police into account.” (italics added)

24. It is the last sentence that is the foundation of the present complaint. The complaint is that the direction ought to have included, but did not, a specific instruction that nothing contained in Mr Tajik’s interview could be used against the applicant. No objection, or request for correction or any addition or clarification was made. To raise this ground of appeal the applicant needs leave under Rule 4 of the Criminal Appeal Rules (NSW).

25. Counsel was unable, when pressed, to identify any answers in Mr Tajik’s interview that could have been used adversely to the applicant. Indeed, Mr Tajik’s denial of involvement, and his denial of association with the applicant, if accepted, could have assisted the applicant’s case. The direction that the jury could take into account Mr Tajik’s version of events was also, potentially at least, favourable to the applicant. It may be speculated that that was why the applicant’s counsel did not attempt to have the applicant disassociated from the direction, or the record of the interview.

26. Counsel suggested that, as Mr Tajik was convicted, it could be inferred that the jury rejected his exculpatory interview, including his denials of more than a passing acquaintance with the applicant, and denials of association with the applicant at the relevant time. He suggested that that rejection somehow also affected the verdict in his case.

27. While it may be accepted that the jury rejected Mr Tajik’s exculpatory account given in the interview, including his denial of more than a passing acquaintance with the applicant, it does not follow that those answers could have had any adverse impact on the jury deliberations in relation to the applicant. That the two had had significant contact during the early hours of the morning of the offence, including up to half an hour before the 4.00 am invasion of Mr Bahrami’s house, was established by the telephone records. The jury’s apparent rejection of Mr Tajik’s account does not carry with it rejection of the applicant’s case.

28. Counsel for the applicant also sought to draw comfort from the jury question that was said to raise a “claim of right”. That, he argued, indicated that the jury was considering the interview. That might be true, but the most that a claim of right could have gone to were the counts of stealing on which the jury failed to reach a verdict.

29. There was nothing in the record of Mr Tajik’s interview that called for a direction of the kind it is now contended should have been given. Had it been perceived by trial counsel to be necessary, it could have been sought. We refuse leave to argue Ground one.

Ground two: unanimous verdict

30. The direction about which complaint is made by Ground two is recorded in the transcript in the following terms:

“Your decisions, members of the jury – and there have to be four of them – must each be unanimous. You all have to agree that the accused that you’re considering is guilty of the count or the charge you are considering – you must all agree before you can bring in a verdict of guilty. Likewise, you must all agree that the accused is not guilty before you bring in a verdict of not guilty. Not guilty is not a default position to a failure to agree about guilt. Some people think that if a jury cannot unanimously find a person guilty, then the automatic result must not [sic] be not guilty. That is incorrect. Verdicts of guilty and not guilty both must be unanimous.

That doesn’t mean that you must all have the same reasons for coming to your conclusion. You can have different reasons for coming to guilty or not guilty compared to the juror sitting next to you. It doesn’t matter why you’ve got there, but the answer must be the same.” (italics added)

31. It is not clear whether the first “not” in the third last sentence of the first paragraph was a slip of the tongue or a transcription error. It seems to us apparent that what his Honour meant to say was:

“Some people think that if a jury cannot unanimously find a person guilty, then the automatic result must be not guilty.”

32. The specific aspect of the direction of which complaint is made is the sentence:

“Not guilty is not a default position to a failure to agree about guilt.”

Counsel for the applicant accepted that

“…globally a failure to agree on guilt does not lead to unanimity as to a finding of not guilty.”

However, he contended that:

“…a failure globally to agree about guilt may, in the case of individual jurors, be the equivalent of finding that guilt has not been established beyond reasonable doubt.”

and that:

“…on an individual level, the inability to find a verdict of guilty is by corollary a determination of ‘not guilty’. The reference to a ‘default position’ has impinged on the correct application of whether a particular juror has reached a determination of ‘beyond reasonable doubt’.”

33. The flaw in this argument is that it conflates two issues – the role of the jury as a whole, and the role of individual jurors. A “global failure” of the jury to agree necessarily carries with it that one or more jurors considered that guilt had been proved beyond reasonable doubt, and one or more jurors considered that guilt beyond reasonable doubt had not been proved. But failure of all individual members of the jury to agree does not equate to a determination of not guilty by any individual juror. It was submitted that “not guilty”:

“…actually is the default position for any particular juror who cannot agree with others about guilt.” (emphasis in original)

34. It is correct that an individual juror who is not satisfied that the guilt of the accused has been proved beyond reasonable doubt must necessarily opt for a verdict of not guilty (even where that is at odds with some or all of the other jurors). But the direction given by the trial judge was not about a “default position” of individual jurors, but about the “default position” with respect to the collective view of the jury. The jury would have understood, from the terms of the direction, that the direction concerned the inability of the jury as a whole to reach a unanimous verdict, whether it be guilty or not guilty. The judge was conveying to the jury that, in respect of each count, there were three, not two, possible outcomes – a unanimous verdict of guilty, a unanimous verdict of not guilty, or no verdict. The failure of the jury to agree on the second count against each accused is ample evidence that they understood that direction.

35. There was no prospect of confusion resulting from the direction. No issue was raised at trial about the direction. We refuse leave under r 4 of the Criminal Appeal Rules to argue Ground Two.

Application for leave to appeal against sentence

36. The applicant seeks leave to appeal against the sentence imposed on him following his conviction on the sole ground that “the penalty is too severe”.

37. We have already set out above the facts his Honour was satisfied of for the purposes of sentencing the applicant following his trial.

Proceedings on sentence

38. The Crown tendered documents disclosing, inter alia, that the applicant had no criminal convictions. As for the amount of pre-sentence custody, the Crown provided the following chronology. The applicant was refused bail on 26 August 2015 when he was arrested. On 30 October 2015 he was granted Supreme Court bail and taken into immigration detention. He remained there until 30 August 2018 at which time the Crown made a successful detention application following the jury verdict. The applicant was then returned to Corrective Services custody where he remained until his sentence was imposed. It was common ground that the applicant had spent three years, three months and 15 days in either detention or corrective services custody at the time of sentence.

39. The applicant did not give evidence at his proceedings on sentence. His subjective circumstances were placed before the court through a psychological report prepared by Thawhida Rangiah from the Headstart Psychological Services dated 19 October 2018 and a Discharge Summary from Liverpool Hospital dated 24 May 2018.

40. According to the Headstart report, the applicant escaped from Iran to Indonesia some time before 2012. The reason for this was that he had engaged in a five-year intimate relationship with a woman who was already married. He was then a “target blacklisted person” after she returned to her marriage. When the applicant was in Iran, a very close friend was killed in a motor vehicle accident. After leaving Iran, the applicant was in Indonesia for about six to seven months where he made several unsuccessful attempts to escape to Australia by boat. He described to Mr Rangiah how he had once spent five days at sea before being caught and sent back to Indonesia. He then spent time at Christmas Island. Then after four months he was sent to immigration detention in Darwin then to Beacon Point. He was eventually granted a visa to stay in Australia. He suffered from asthma and this led to an Oxycontin addiction. He met Miremad Bahrami and through him began taking drugs and gambling. Mr Rangiah diagnosed the applicant with Reactive Major Depression with High Anxiety and Post-Traumatic Stress Disorder (“PTSD”).

41. The applicant’s solicitor initially submitted that the threshold in s 5 of the Sentencing Act had not been met and that a non-custodial sentence could be imposed. This was strongly rejected by his Honour as was any suggestion that an intensive corrections order would be appropriate. Despite this, his Honour observed that the amount the applicant had already been in custody “might be getting close to the non-parole period”.

42. The applicant’s solicitor subsequently submitted that the sentence could be backdated to the date the applicant was first brought into custody and that period (3 years, 3 months and 15 days) would “well and truly” surpass any non parole period the Court would consider imposing.

Remarks on Sentence

43. In the Remarks on Sentence, Colefax SC DCJ found that the objective seriousness of the offence was “towards but not at the middle of the range” of seriousness. His Honour held that the offence was aggravated by the fact that it was committed in company and involved the use of a weapon, although this was of diminished significance because it was the method by which the assault occasioning actual bodily harm was inflicted. He further noted at [31] that the applicant was the “more aggressive” of the two offenders as he was the one carrying the knife.

44. His Honour noted that the applicant had reactive depression to the death of a friend in a motor vehicle accident and that the applicant self-medicated in response with drugs and alcohol. His Honour further noted that the applicant had been the subject of random attacks as well as being kidnapped, detained and tortured after having a relationship with a woman whose husband had some authority in the Iranian regime. The applicant’s journey to Australia was a further stressor such that the applicant now suffers from PTSD.

45. Another subjective circumstance noted by his Honour was the fact that the applicant could not work in Australia due to the conditions of his bridging visa. It was also noted that the applicant had used illegal drugs, had a serious gambling problem and did not have close support in Australia.

46. In terms of the applicant’s immigration detention, his Honour noted a “disturbing history” of repeated suicide attempts. There were additional problems with pulmonary embolism, asthma and Hepatitis C.

47. Finally, his Honour noted that the applicant did not accept the jury’s verdict and had not expressed remorse. Community Corrections had assessed the applicant’s risk of reoffending as medium and his Honour assessed it as “guarded”. Although his Honour concluded that there was no causal link between the applicant’s psychological problems and his offending, he did not consider that general deterrence was a significant consideration. However, he did consider specific deterrence to be important.

48. His Honour imposed the sentence to commence on 25 August 2015, which was the date of his arrest. His Honour made a finding of special circumstances based on the applicant’s prospects for rehabilitation, emotional profile, lack of support in Australia and lack of previous incarceration and varied the statutory ratio such that the non parole period of 3 years and 7 months comprised 65% of the head sentence of 5 years and 6 months: s 44 of the Sentencing Act.

49. The applicant’s non parole period expired on 28 March 2019 and he was released on parole on that date. He was taken straight to immigration detention. He was subsequently charged and sentenced for an affray committed whilst in detention custody and was returned to Corrective Services custody. That sentence of nine months’ imprisonment commenced on 6 August 2019 and will expire on 5 May 2020.

Applicant’s submissions

50. The applicant contended that the penalty imposed by his Honour was too severe. It was submitted that while his Honour reduced the weight to be given to the use of the knife as an aggravating factor, this was not reflected in the non parole period or head sentence imposed. Further, it was submitted that his Honour gave insufficient weight to the applicant’s subjective circumstances in the assessment of penalty. The applicant had a low level of maturity and was only 27 years old at the time of the offence, which were relevant to his prospects of rehabilitation. The applicant’s suicide attempts also introduced elements of mental illness which, it was submitted, his Honour should have addressed.

51. In oral submissions, it was submitted that although his Honour mentioned a lack of prior convictions, this was not reflected in the sentence imposed. It was noted that s 21A of the Sentencing Act delineates between good character and lack of prior convictions. It was also submitted that the criminality involved in the offence was “not high” in that it was “nowhere near the middle range”, given the nature of the circumstances of aggravation. Finally, it was submitted that it was not a crime of “great magnitude: the two offenders and the victim were all known to each other, the conflict “de-escalated” and then the two offenders left.

Crown submissions

52. The Crown submitted that his Honour did properly take account of the minor nature of the injuries inflicted on the victim, describing them as a “relatively inconsequential cut”. Furthermore, the Crown submitted that, despite this, there were aggravating factors in relation to the knife which his Honour was entitled to take into account, namely the evidence that he threatened to “cut the victim in pieces” and that the offence was committed in company.

53. In relation to the applicant’s subjective features, the Crown submitted that his Honour gave careful consideration to these features from [62]-[75] of his Remarks. Furthermore, there was no evidentiary basis for the applicant to submit that he had low maturity at the time of the offending, and the Remarks did take account of his age. The Crown further submitted that questions of weight in the exercise of the sentencing discretion are generally matters for the court of first instance.

Consideration

54. The applicant’s non parole period expired nearly a year ago. That does not absolve the court of its obligation to consider this application for leave to appeal given the role of this court in correcting error and seeking to achieve consistency in sentencing. Nor is it relevant that he is likely to be deported.

55. A ground alleging manifest excess is a ground in which it is contended that, even if no patent error is established, the sentencing judge’s discretion miscarried nonetheless and the sentence is “unreasonable” or “plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. Despite this, the applicant did rely upon specific errors under this ground.

56. First, it was contended that the sentencing judge erred in the assessment of objective seriousness as being “towards but not at the middle of the range” of seriousness. The question of whether a sentencing judge has erred in a finding regarding objective seriousness is whether the finding was open: Mulato v R [2006] NSWCCA 282 at [37], [46]-[47]. As Gleeson JA (with whom Button and RA Hulme JJ agreed) recently observed in Magro v R [2020] NSWCCA 25 at [29]:

“The assessment of the objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing the inferences from those facts: Mulato v R [2006] NSWCCA 282 at [ 37], [46].This is an evaluative exercise that requires an assessment of a range of factors which may be susceptible of significantly differing views. It has been observed that those difficulties are at their height in circumstances where there has been a trial in which the sentencing judge has been able to assess the evidence the Crown witnesses who gave evidence in the witness box: Baines v R [20 16] NSWCCA 132 at [1 5] (Basten JA).”

57. We are satisfied that it was open to his Honour to make the finding that the objective seriousness was “towards but not at the middle of the range”. His Honour made this finding after a trial in which he had had the opportunity to hear the victim give evidence. The applicant entered the victim’s house in company to rob him with a knife in the early hours of the morning. The fact that the victim knew his offenders and was able to eventually get them to leave does not mean, as was submitted by the applicant in this court, that the crime was “not of great magnitude”. Although the injury was not serious, his Honour noted this as part of the evaluative judgment he was required to make describing it as “relatively inconsequential cut” (at [17]).

58. Secondly, it was submitted that the sentencing judge failed to give proper weight to factors such as the applicant’s mental health, age and other subjective features. Although it is an error to fail to have regard to a relevant consideration, questions of the relative weight to be given to various factors are matters for the exercise of the sentencing discretion. As Johnson J (with whom Ward JA and RS Hulme J agreed) observed in Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 at [112]:

“The failure of a sentencing Judge to attribute sufficient weight to an issue at sentence will not generally be a material error. Questions of weight in the exercise of a discretion are matters for the first-instance Judge, and the circumstances in which matters of weight will justify intervention by an appellate court are narrowly confined: R v Baker [2000] NSWCCA 85 at [11]; Yang v R [2012] NSWCCA 49 at [25].”

59. There is no doubt that the applicant had had an unfortunate life. After arriving in Australia and being granted a visa he initially gained work but took up gambling and illegal drug use and now finds that he has squandered the opportunity he had to make a new life for himself in Australia. There have been suicide attempts. These mitigating features were recounted in some detail by the sentencing judge at [62]-[75] of his Remarks. His Honour clearly was aware of them and had regard to them.

60. Thirdly, although not specifically addressed by the applicant in written or oral submissions, it was submitted that, for whatever reason, the sentence imposed is just too high. In assessing whether the sentence is too high it is pertinent to note that the maximum penalty is 20 years’ imprisonment and a standard non parole period of five years’ imprisonment is provided: s 54B of the Sentencing Act. In addition, the applicant did not plead guilty and expressed no remorse.

61. The applicant submitted to the sentencing judge that the s 5 threshold had not been passed. Section 5(1) of the Sentencing Act provides that

“A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”

62. It is unsurprising that his Honour rejected this submission; the offence is a serious one. Having regard to the relevant guideposts of the maximum penalty and standard non parole period, and the finding of objective seriousness, this was a matter which warranted a full time sentence of imprisonment. We are not satisfied that any error is disclosed in his Honour’s conclusion that no penalty other than imprisonment was appropriate. Nor was it suggested in this court that there was.

63. Once his Honour was satisfied that a full time custodial sentence was warranted, the remaining question was the length of the sentence. The applicant’s position before the sentencing judge was that the time already served would “well and truly” surpass any non parole period the Court would consider imposing. That submission included the time that the applicant spent on bail but in immigration detention.

64. It should be noted that his Honour was not obliged to backdate the sentence so as to include the period from 30 October 2015, at which time he made a successful bail application and was taken into immigration detention, until 30 August 2018. That is, for nearly three years of the time the applicant was detained he was actually on bail. Section 47(3) of the Sentencing Act provides that “the court must take into account any time for which the offender has been held in custody in relation to the offence”. The applicant was not being held in custody in relation to the offence for two years and ten months of the period that his sentence was backdated for; he was on bail in immigration detention. Despite this, in the exercise of his discretion, the sentencing judge backdated the sentence to count all of that period: s 47(2)(a) of the Sentencing Act.

65. His Honour was mindful of the sentencing principle applied in NSW that actual or potential deportation is irrelevant to structuring a sentence: R v Pham [2005] NSWCCA 94 at [13]–[14]. Despite the fact that it was likely that the applicant would be deported, his Honour found special circumstances and varied the ratio between the non parole period and the head sentence so as to increase the time he would spend on parole.

66. The non-parole period of 3 years and 7 months was only approximately 3 months and 15 days longer than the period of time that the applicant had spent in immigration detention on bail and in custody prior to his sentence date. The applicant had submitted that an appropriate course on sentence would be to back-date the sentence to have regard to the period of time that the applicant had already served. Thus, the difference between what was advanced in the District Court and is now advanced on this application is three months and fifteen days. There was no suggestion in this court that it was incompetent of the applicant’s solicitor to make that concession to the court. An applicant is usually bound by the conduct of his representative: Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44.

67. Overall, although the sentence imposed was a stern one, we are not satisfied that in all of the circumstances the applicant has established that the sentence imposed on him was “unreasonable” or “plainly unjust”.

ORDERS

68. Accordingly, the Court makes the following orders:

(1)   Refuse leave to appeal against conviction.

(2)   Dismiss the appeal against conviction.

(3)   Grant leave to appeal against sentence.

(4)   Dismiss the appeal against sentence.

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Decision last updated: 15 April 2020