R v El-Andouri

[2004] NSWCCA 178

CITATION:	R v El-Andouri [2004] NSWCCA 178 revised - 17/06/2004
HEARING DATE(S):	14/6/04
JUDGMENT DATE:	18 June 2004
JUDGMENT OF:	Tobias JA at 1; Kirby J at 1; Bell J at 1
DECISION:	a) Leave to appeal granted; b) Appeal against sentence in respect of the second count of the second indictment dismissed; c) Appeal against sentence in respect of the first count of the second indictment allowed and the sentence quashed; d) In lieu of the sentence imposed in respect of the first count of the second indictment, the applicant is sentenced to imprisonment for 4 years commencing 30 April 2004 and expiring on 29 April 2008 with a non-parole period of 2 years 3 months commencing on 30 April 2004 and expiring on 29 July 2006
CATCHWORDS:	CRIMINAL LAW - sentencing - accumulation - taking conveyance without consent - robbery in company inflicting grievous bodily harm - discount for guilty plea - purpose for which vehicle stolen - disparity with co-offender's sentence
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
CASES CITED:	Bavadra (2000) 115 A Crim R 152 Budd [2002] NSW CCA 302 Hammoud (2000) 118 A Crim R 66 Itamua [2000] NSW CCA 502 Karaman (2002) 128 A Crim R 72 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1996) 189 CLR 295 R v Merritt [2000] NSWCCA 365 R v Rutter [2003] NSWCCA 306 R v Thompson (2000) 49 NSWLR 383 Sotheren [2001] NSWCCA 425 Uasi [1999] NSW CCA 306
PARTIES :	Regina Mohamed El -Andouri
FILE NUMBER(S):	CCA 60478/03
COUNSEL:	A: A Francis R: G I O Rowling
SOLICITORS:	A: K Kyriacou R: S Kavanagh

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 02/11/0416; 01/11/0648
LOWER COURT JUDICIAL OFFICER :	Finanne DCJ

CCA 60478/03
DC 02/11/0416; 01/11/0648

TOBIAS JA
KIRBY J
BELL J

Friday 18 June 2004

R v MOHAMED EL-ANDOURI

Judgment

1 THE COURT: On 2 May 2003, the applicant, Mohammed El-Andouri appeared before Finnane DCJ to be sentenced in respect of two counts in each of two indictments in respect of which he had pleaded guilty.

2 The first indictment contained two charges. The first was a charge pursuant to s 97(1) of the Crimes Act 1900, namely, that on 26 December 2000, he assaulted one Phillip Sharkey with intent to rob whilst armed with an offensive weapon being a magazine set pistol. The maximum penalty for this offence is 20 years imprisonment. The second was a charge pursuant to s 93C(1) of the Crimes Act, namely, that on the same day he used unlawful violence towards Jules Zacak and Alison Maguire such that a person of reasonable firmness who found themselves present at the scene would have feared for their safety. The maximum penalty for this offence (being commonly known as affray) is 5 years imprisonment.

3 The applicant pleaded guilty to the two counts of the first indictment on 17 August 2001. The matter was stood over for sentence to enable a pre-sentence report to be obtained. Whilst on bail for these offences, the applicant committed the offences the subject of the second indictment.

4 The first of those offences was that, pursuant to s 154A of the Crimes Act, he did steal a motor vehicle, an offence which carries a maximum penalty of 5 years imprisonment. The second was that, on the same day, pursuant to s 98 of the Crimes Act, he committed robbery in company and inflicted grievous bodily harm upon the victim of the robbery. That offence carries a maximum penalty of 25 years imprisonment. As we have said, the applicant also pleaded guilty to these offences.

5 Finnane DCJ sentenced the applicant on 16 May 2003. In respect of the first offence of assault with intent to rob whilst being armed with an offensive weapon, the applicant was sentenced to 5 years imprisonment to commence on 30 October 2001 and expire on 29 October 2006. His Honour imposed a non-parole period of 2 years and 6 months to commence on 30 October 2001 and expire on 29 April 2004.

6 With respect to the offence of affray, the applicant was sentenced to a 2 year fixed term of imprisonment to commence on 30 October 2001 and expire on 29 October 2003 – that sentence to be served concurrently with the first sentence.

7 With respect to the second count of the second indictment, the applicant was sentenced to a term of imprisonment of 16 years to date from 30 April 2004 and expire on 29 April 2020. His Honour set a non-parole period of 9 years to commence on 30 April 2004 and expire on 29 April 2013.

8 With respect to the first count of the second indictment, the applicant was sentenced to a term of imprisonment of 5 years (the maximum) to commence on 30 April 2012 and expire on 29 April 2017. His Honour set a non-parole period of 3 years to commence on 30 April 2012 and expire on 29 April 2015.

9 In the result, the sentencing judge imposed an effective overall term of 18 years and 6 months with a non-parole period of 13 years and 6 months. The applicant seeks leave to appeal against the sentences imposed with respect to the two counts of the second indictment. No complaint is made with respect to the terms of imprisonment imposed with respect to the two counts of the first indictment.

The facts

10 The offences the subject of the two counts of the first indictment occurred late in the evening of 26 December 2000 at the Kogarah Inn, a public bar in Kogarah. As the Inn's staff were preparing to close, the applicant emerged from the toilets carrying a replica pistol and sports bag. He paraded around the bar pointing the pistol at the staff, who understandably reacted as though the gun were real, before ordering two staff members, Mr Sharkey and Ms Maguire, to the ground. The applicant then hit Mr Sharkey in the head, kicked into his ribs and stood on his back while holding the gun to his temple before tying the faces of both victims with bar towels.

11 While the applicant was in the process of ordering other staff members around, the Inn's telephone rang. A staff member, Mr Zacak, answered the phone to learn that police were calling in response to the activation of the Inn's "panic button". Mr Zacak pretended he was speaking to his mother, but when approached by the applicant after the call, he confessed that it was the police who had called.

12 The applicant then fled empty-handed before being arrested a short time later and duly charged. On 2 January 2001, he was bailed to appear before the Chief Judge of the District Court to plead guilty on 17 August 2001. He remained on bail until he was arrested in respect of the second indictment offences on 7 November 2001. He has remained in custody since that date. The second indictment offences were committed some 17 days after he had pleaded guilty to the first indictment offences whilst he was on bail and whilst a pre-sentence report was being obtained. As the sentencing judge observed, this was an aggravating factor.

13 The victim of the second indictment offences was the proprietor of a service station. He was a hardworking man of approximately 33 years of age. He worked long hours and shared a house with his fiancé.

14 In the early hours of the morning of 3 September 2001, the applicant and his associates stole a motor vehicle from a car park at the Westfield Shopping Centre at Tuggerah. They then approached the victim's service station at The Entrance and observed his movements. On the day of the week in question it was the victim's practice to deliver his takings to the bank. The sentencing judge considered that it was reasonable to suppose that one or other of the applicant or his associates was aware of that fact, probably as a result of surveillance either on the day in question or on previous occasions or otherwise as a consequence of obtaining information from someone familiar with the victim's movements.

15 Late on the morning in question, the victim collected the takings from another service station which he operated and then returned to The Entrance service station, collected the takings from there, and headed off in his motor vehicle to bank the takings at Bateau Bay. The applicant and his associates followed the victim in their stolen vehicle. Near an intersection they deliberately rammed the victim's vehicle from behind. The victim (who assumed that this was just an accidental collision) alighted from his vehicle to investigate - the next minute the applicant and his associates forced him to the ground.

16 The applicant then punched the victim repeatedly in the head and whilst he was on the ground continued repeatedly to punch him. One of the applicant's associates then reached into the victim's vehicle and pulled out the bag containing the takings of approximately $12,000 - $13,000. Having obtained the cash, the applicant and his associates did not just leave the victim on the side of the road to recover from the repeated blows to his head that the applicant had inflicted. As described by the sentencing judge, "they decided to really do him in" (ROS 8). All three of them then joined in punching and kicking the victim whilst he was on the ground. In so doing, they fractured his skull and left him bleeding and, according to the sentencing judge, dying on the side of the road. His Honour considered that but for the fact that there were people nearby some of whom were at least prepared to involve themselves in coming to his rescue, the victim would undoubtedly have died by the roadside.

17 The victim was taken to hospital by ambulance where he was placed on life support in a comatose condition. The medical evidence indicated that he sustained a severe closed head injury, right skull burst fracture, right hemisphere oedema and a haematoma. Fragments of his skull were broken off inside the skull cavity. As a consequence of the beating he was unable to breathe unassisted, his limbs were very weak and he required complete care in every sense. He was incontinent, unable to eat or drink and had to be fed by tubes. He was rendered blind in his right eye and suffered reduced vision in his left. He has severe cognitive impairment as a result of which he is unable to walk and still requires assistance with all aspects of his life.

18 The victim's fiancé left him and he is now dependent on his parents and members of his family for support. He lost his business and is unlikely to ever gain any form of employment. He can no longer drive, has great difficulty in simply getting out and around and is no longer able to engage in the sport and other recreational activities from which he used to derive enjoyment. He understands that because of the nature of his injuries, it was necessary for doctors to bore a hole into his skull resulting in a continuous high risk of infection. He finds it difficult to speak properly. He slurs his words and because of the embarrassment he feels, he avoids saying anything much to anyone. He finds it difficult to make people to understand what he is saying and this makes communication extremely problematic. As the sentencing judge observed, blindness in one eye and restricted vision in the other is a very severe handicap for anybody, let alone someone who is largely paralysed.

19 The victim has severe scars as a result of the surgery that was performed upon him, which he finds upsetting. He is fearful that, being in his mid-30's and as his parents are becoming elderly, they will be unable to look after him with the result that he will ultimately be confined to a nursing home with only very elderly people as his companions. He feels, and fears, the strain of being a burden upon his family particularly as his parents are in a poor state of health and are already finding it difficult to look after him. Some assistance is obtained from his siblings.

20 As the sentencing judge observed, his life is shattered because the applicant and his associates chose to inflict grievous bodily harm upon him after they had robbed him. The sentencing judge described the attack in the following terms (ROS 12):

"It was a senseless and violent and cruel thing to do. He, as with so many victims of violent crime, will live with this for the rest of his days."


It is understandable that in these circumstances, the sentencing judge considered that the objective facts of the offences were extremely serious.

The subjective circumstances of the applicant

21 His Honour recognised that there were a number of subjective matters relating to the applicant that he was required to take into account. The applicant was born on 25 August 1982 and was 19 years of age at the time of the subject offences. There was nothing untoward about his life up until the time he turned 14 years of age. At the age of 15 he left work, met a homeless girl and drifted into drug use. Thereafter he used ecstasy, marijuana and cocaine. He maintains that he has been off drugs since being in custody and he has expressed some remorse for his actions in that, according to the sentencing judge, he claims that he is sorry for what he did and that he is praying for the victim's recovery. His explanation for the offences was described by the sentencing judge as follows (ROS 13):

"His explanation about the offences is [that] he is sorry he became involved in them but he was on drugs at the time and had a need for money, and that is what got him involved."

However, as the sentencing judge observed, the fact that people are on drugs is not an excuse for going out and committing armed robberies.

22 The applicant's sister gave evidence. She referred to the fact that he had become involved with inappropriate people as a consequence of his drug addiction. He had also expressed remorse to her. With the assistance of his then counsel (as he was barely literate having left school in Year 8) the applicant had written a letter to the sentencing judge. In that letter he expressed his sorrow for what had happened to the victim and his wish that he could go back and change things. He expressed his sorrow for what the victim's family had gone through. He asserted that he seriously prayed every day for the victim to recover. He acknowledged that he was going to gaol for a long time but that over the last 18 months in custody he had learned his lesson and had not been using drugs.

23 The sentencing judge indicated that although he had taken the contents of the letter into account, he did so with caution due to the fact that the applicant had not given sworn evidence before him. He noted that the claims he had made in the letter mirrored claims made to his probation officer on 5 October 2001. At that time the applicant had committed the offences stated in both indictments, but had only been charged with, and pleaded guilty to, those in the first indictment. Accordingly, he was expressing his remorse in regard to the commission of the first indictment offences all the while knowing but not revealing his commission of the more serious offences in the second indictment. The sentencing judge made the following observations of these claims (ROS 15):

"I must say I have some scepticism about his genuineness. It may be that he is, but the evidence presented to me does not really convince that he is."

24 Accordingly, although the sentencing judge referred to the applicant's various claims to have taken steps towards his rehabilitation, he considered that these were matters for him to prove rather than merely to claim. He thus observed (ROS 16):

"It is my experience that many people facing significant periods of custody claim they will do something. Very few of them in fact take any positive steps to do anything much. He has taken some, but they are not terribly significant."

25 His Honour weighed up the fact that the applicant was a young man but noted that he had not come from a particularly deprived background or one where he had been subjected to any degree of abuse or unpleasantness, albeit that he was not well educated. On the question of rehabilitation, he concluded (ROS 16) that:

"(t)here must be hope for reform, and it is something I take into account."

26 His Honour then referred to the decision of the High Court in Pearce v The Queen 194 CLR 610 acknowledging that he was required to consider an appropriate sentence for each offence, the question of accumulation or concurrence and then the question of totality. He then said this (ROS 17):

"In considering appropriate sentences and in considering all the other questions that I have just referred to, I have of course to take into account the aspects of individual and general deterrence, retribution and rehabilitation. I have to take into account his youth, the prospects for reform. It seems to me, in these cases, most importantly, I have got to take into account the very serious nature of the offences and the need to publicly make it plain to anybody who might be tempted to engage in these offences, that notwithstanding youth and some prospects of rehabilitation, the offences are so serious that they could expect, anybody who engages in them, to get heavy gaol sentences."

27 After referring to the decision of this Court in Regina v Henry (1999) 46 NSWLR 346 his Honour imposed sentences with respect to the two counts of the first indictment (to which we have already referred). As to the second count of the second indictment, his Honour considered it (ROS 18):

"…an offence that deserves to be regarded as one in the worst category of such offences. In my opinion, but for the factors which I would indicate, it would warrant the maximum sentence of 25 years being imposed on him. And those who wish to commit this sort of offence should understand that that, in my opinion, is a very real prospect for such offenders.
In this case, because of his youth, because I think there is some prospect of rehabilitation, because he has pleaded guilty, I propose to impose a maximum sentence instead of 16 years."

28 Having noted that the maximum sentence for car stealing (which constituted the first count of the second indictment) was 5 years, the sentencing judge then said this (ROS 19):

"In my opinion, stealing a car so that somebody can go off and do a robbery, particularly a robbery of this type, is an offence of the worst type. We cannot imagine a worse reason to steal a car but to go off and commit an armed robbery, a robbery with violence. This robbery we might say, was a very well planned one. A car was stolen, the surveillance was organised, a plan was devised to run him off the road and to trick him into thinking that this was a car accident and then the robbery was to take place. The car was an integral part of this plan, it was used in the surveillance operation, it was used to knock him off the road. In my opinion, it warrants a five year sentence and I do not propose to reduce that for any of the circumstances that I have mentioned before."

29 His Honour then turned to questions of accumulation or partial accumulation and the question of totality. He considered that it was appropriate to partially accumulate the sentences under the second indictment with those under the first indictment. However, he also considered that it was appropriate that the applicant should serve some extra time for stealing the motor vehicle over and above the time that he was to serve for the associated robbery in company and infliction of grievous bodily harm. This was because (ROS 20):

"(i)t must be clear to people who engage in this that they cannot just expect to do this sort of thing and come to court and get a whole series of concurrent sentences as if it really did not matter."

30 He gave effect to the foregoing by providing that the sentence of 5 years for car stealing was to be partially cumulative on the sentence for robbery in company and inflicting grievous bodily harm. That sentence was to commence on 30 April 2012, being 12 months prior to the expiry of the 9 year non-parole period in respect of the second offence of the second indictment. With a non-parole period of 3 years, 1 year of that became concurrent and 2 years became cumulative. The total non-parole period was 13 years and 6 months or, as his Honour noted, 12 years from the day upon which he sentenced the applicant.

The Grounds of Appeal

Ground 1. The sentencing judge erred in imposing the maximum penalty for the offence of take and drive conveyance.

31 The sentencing judge's reasons for imposing the maximum sentence of 5 years with respect to the first count of the second indictment are recorded at [27] above. In imposing that sentence his Honour indicated that he did not intend to reduce the sentence due to "the circumstances that I have mentioned before". This was a reference to the fact that, when considering the second count of the second indictment (committing robbery in company and inflicting grievous bodily harm) and imposing a sentence of 16 years (where the maximum sentence was 25 years), he had expressly discounted the sentence because of the applicant's youth, the fact that there was some prospect of rehabilitation and because he had pleaded guilty.

32 The applicant submits that in imposing the maximum sentence of 5 years in relation to the car stealing charge, the sentencing judge fell into error in that he rejected any discount for the features to which we have referred, including the utilitarian value of the applicant's early plea of guilty, in circumstances which were unjustified. In particular, it was submitted that he had failed to state reasons for declining to take the applicant's guilty plea into account in contravention of s 22(2) of the Crimes Act (Sentencing Procedure) Act 1999; that he had exposed the applicant to double punishment by relying, for the purpose of categorising the offence as a worst case, upon the fact that the vehicle was stolen as an integral part of the plan to rob the victim; and that there was an inconsistency between discounting the sentence in respect of the charge of robbery in company and inflicting grievous bodily harm as a consequence of the applicant's plea of guilty and the other subjective features upon which he had relied, but declining to do so in respect of the subject charge.

33 Of course his Honour was required to have regard to the factors set out in the repealed s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 which included the subjective features to which we have referred. He was also required to take into account the applicant's plea of guilty: s 22(1). The plea of guilty raises considerations associated with contrition or remorse as well as considerations relating to the utilitarian value of the plea, viewed objectively. Given the sentencing judge's expressed cautiousness with respect to any remorse allegedly shown by the applicant, we are presently more concerned with the utilitarian value of his plea.

34 It is true as the Crown submits that in some cases a plea will not lead to any discount. However, as the Chief Justice pointed out in R v Thompson (2000) 49 NSWLR 383 at 418 [157] and [158]), such cases would generally be confined to those where the protection of the public requires a long sentence or which so offend the public that the maximum sentence without any discount for any purpose is appropriate, such as where a life sentence can be, and is, imposed notwithstanding a plea.

35 In our opinion, the offence in question did not fall into the category of those offences in respect of which it would be inappropriate to allow a discount for a plea of guilty. We can accept for present purposes his Honour's characterisation of the offence in the particular circumstances as being of the worst type but that would only justify his Honour adopting a starting point equivalent to the maximum sentence of 5 years. It was not a reason for refusing a discount.

36 Furthermore, the sentencing judge had characterised the second count of the second indictment (robbery in company with the infliction of grievous bodily harm) as falling within "the worst category of such offences". And yet, he quite properly allowed a discount for, inter alia, the applicant's plea of guilty to that charge. In these circumstances, it is apparent that his Honour fell into error in declining to provide a similar discount in respect of the offence presently under consideration. Accordingly, Ground 1 is made out.

37 It is therefore necessary to re-sentence with respect to this offence. We accept the sentencing judge's categorisation of this offence as being of the worst type. In so doing, we cannot accede to the applicant's submission that by judging the seriousness of this offence by reference to the purpose for which the vehicle was stolen and to the fact that it was an integral part of the plan which led to the offence the subject of the second count of the second indictment, his Honour exposed the applicant to double punishment. We see no reason why the purpose for which a vehicle is stolen should not be relevant to a determination as to the seriousness of the particular offence. The fact that the stealing of the vehicle was an integral part of the plan to rob the victim is a matter which a sentencing judge is required to take into account as the offence would then form part of a course of conduct consisting of a series of criminal acts within the meaning of the now repealed s 21A(2)(b).

38 In our opinion therefore, an appropriate starting point is the maximum of 5 years which should be discounted by 20% so as to take account of the applicant's plea of guilty. We would therefore sentence the applicant to a period of 4 years imprisonment with a non-parole period, given the special circumstances to which the sentencing judge referred, of 2 years 3 months.

Ground 2. The sentencing judge erred in accumulating the sentence of the take and drive conveyance upon the non-parole period imposed for the offence of aggravated robbery.

Ground 3. The learned sentencing judge erred in passing consecutive sentences in his assessment of totality in his application of Pearce v The Queen .

39 With respect to the second count of the second indictment, the sentencing judge sentenced the applicant to imprisonment for 16 years commencing on 29 April 2004, to expire on 29 April 2020, with a non-parole period of 9 years to expire on 29 April 2013. Although this sentence is the subject of complaint (with which we shall deal hereafter), for present purposes we shall assume that it stands.

40 The complaint made with respect to Grounds of Appeal 2 and 3 is that his Honour partially accumulated the sentences in respect of the offences the subject of the second indictment, which had the result of extending the non-parole period in respect of the second offence by 2 years, i.e. from 30 April 2013 to 29 April 2015. He did this by commencing the sentence of 5 years which he imposed in respect of the car stealing charge on 30 April 2012 being 1 year prior to the expiry of the 9 year non-parole period which he imposed in respect of the robbery in company with the infliction of grievous bodily harm charge. The non-parole period of 3 years also commenced from that date. The 9 year non-parole period in respect of the robbery in company offence was, so it was submitted, in reality extended for a further 2 years.

41 His Honour considered that it was appropriate that the applicant should serve some extra time for stealing the motor vehicle over and above the time that he was to serve for the associated robbery in company and infliction of grievous bodily harm. His expressed reason was that which we have recorded in [28] above.

42 Pearce requires the fixing of "an appropriate sentence" for each offence before considering questions of accumulation, concurrence or totality. So far as the question of concurrence and accumulation are concerned, the applicant relies upon the following passage from the judgment of Simpson J, which whom Mason P agreed, in Hammoud (2000) 118 A. Crim. R 66 at 67 [7]:

"I do not agree that for the sentencing judge to take into account, in considering questions of concurrence and accumulation, features that were common to the two conspiracy offences, denotes an invalid reasoning process. Whether or not to accumulate sentences imposed in relation to the multiple offences is, in the end, an exercise of discretion to be made in accordance with established principles. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong."

43 In the present case the applicant submits that the second indictment offences were substantially contemporaneous and connected albeit that they did not have common features so far as the relevant criminal acts were concerned. In determining the structure of the sentences, so as to produce an aggregate sentence that was just and appropriate and which paid regard to the principle of totality, it was open to the sentencing judge to decide for the reasons that he gave, that the sentence for stealing the motor vehicle should be partially accumulated on the sentence imposed for the aggravated robbery offence. Hammoud does not suggest the contrary. We are not persuaded that his Honour failed to properly apply the principles enunciated in Pearce. We would therefore reject Grounds 2 and 3.

Ground 4. The sentence imposed upon the applicant's co-offender for the offence of robbery in company and inflict grievous bodily harm gives rise to a justifiable sense of grievance.

44 The applicant's co-offender, Dion Imila Fidow (Fidow), pleaded guilty to the charge that on 3 September 2001, in company with the applicant, he robbed the victim of a sum of money and a mobile phone and inflicted grievous bodily harm upon him at the time of the robbery. Patten DCJ sentenced him on 11 July 2003 to a total of 11 years with a non-parole period of 8 years. This is to be contrasted with the sentencing judge's sentence imposed on the applicant for the same offence of 16 years with a non-parole of 9 years.

45 The principles to be applied by an appellate court where there is a challenge to a sentence imposed on an applicant on the basis of its disparity with a sentence imposed upon a co-offender were authoritatively stated by the High Court in Lowe v The Queen (1984) 154 CLR 606 at 609 per Gibbs CJ and at 618 per Brennan J. The Court considered them further in Postiglione v The Queen (1996) 189 CLR 295 at 301 per Gaudron and Dawson JJ; at 313 per McHugh J and at 336-337 per Kirby J. The principles were recently summarised by Howie J (with whom we agreed) in Regina v Rutter [2003] NSW CCA 306 where his Honour said ([9]):

"A justifiable sense of grievance does not necessarily arise on the part of an appellant simply because his co-offender received, or appeared to receive, more favourable treatment when being sentenced for the offence in which they were both involved. The simple fact that there is disparity between the sentences imposed upon the appellant and the co-offender does not itself enliven the Court's discretion to interfere with a sentence passed upon the appellant which is otherwise appropriate. It is only where the disparity cannot be explained by reference to any difference in the criminality of the two offenders or their subjective circumstances or the proper application of sentencing principles that the grievance is a justifiable one calling for the intervention of this Court."

46 It is obvious that the subjective circumstances of each of the applicant and Fidow were different. In particular, the applicant was only 19 years of age at the time of the offence whereas Fidow was in his 30's. Furthermore, Patten DCJ was asked to take into account some seven additional offences on a Form 1, all of which involved significant dishonesty (but not violence). On the other hand, being on bail aggravated the applicant's involvement in the offence.

47 In the present case it seems to us that the different sentences reflect the different degrees of culpability of each of the applicant and his co-offender. In the case of the applicant, the sentencing judge found as a fact, which was not challenged, that he punched the victim repeatedly in the head, knocking him to the ground and whilst he was on the ground continued to repeatedly punch him. His Honour also found that not only the applicant but also his associates (including his co-offender) joined in punching and kicking the victim when he was on the ground.

48 On the other hand, Patten DCJ found that it was impossible to be satisfied beyond reasonable doubt that Fidow was directly violent towards the victim. It seemed to his Honour that the principal assailant was the applicant and that the most that could be said about Fidow was that he stood by and watched. Both of them then left the victim, to all intents and purposes, dying by the side of the road.

49 Patten DCJ differentiated between the two offenders in the following passage of his Remarks on Sentence (at 4-5):

"Despite Mr El-Andouri's youth it is impossible to disregard the fact that, as it seems, he was the man who inflicted wholly or largely the horrific injuries suffered by Mr Girgis. Moreover, his antecedents were not as this prisoner's antecedents are, non-existent. Mr Fidow is a man who has no previous convictions. Mr El-Andouris is not in that position but, perhaps, more significantly, he was on bail for a similar offence when he committed the crime."

50 It is apparent that Fidow's subjective circumstances were different to those of the applicant. Patten DCJ accepting that a letter tendered in evidence on his behalf expressing his deep sorrow for what happened to the victim and the consequences to his family, evinced "some degree of contrition". He further considered that Fidow had good prospects of rehabilitation (the applicant only had some prospects) and that the crime of violence was quite out of character with anything known of him in the past.

51 Finally, it is apparent that Patten DCJ had before him the sentencing remarks of his Honour in the present case. He was fully aware of the differences between the two offenders and clearly took those into account when sentencing Fidow. In the circumstances, the disparity between the sentences is easily explained by reference to differences in the criminality of the two offenders and their subjective circumstances.

52 It follows that in our opinion this ground of appeal should be rejected.

Ground 5. An overall term of 16 years comprising a non-parole period of 11 years for the offences of aggravated robbery and car stealing accumulated upon a non-parole period of 2½ years is manifestly excessive in the circumstances of this case.

53 The applicant referred to a number of cases with respect to which it was submitted that the overall factual circumstances of each should be considered to be more serious than the present case, thus demonstrating that the sentence imposed upon the applicant in respect of the charge of robbery in company and inflicting grievous bodily harm was manifestly excessive.

54 The following subjective factors were relied on:

a) the applicant's age: the offence was committed just before his 19th birthday;

b) his criminal history was of little significance involving only minor property offences;

c) he was found to have good prospects of rehabilitation;

d) he had demonstrated contrition by stating in a letter to the sentencing judge that he was sorry and that he prayed for his victim to recover;

e) he had family support from whom evidence had been led and who would be able to assist in his rehabilitation upon his release and whose evidence established that the applicant's life had been destroyed in his mid-teens due to his use of narcotics.

55 Two of the foregoing factors as stated did not accord with the sentencing judge's findings. In particular, his Honour did not find that he had "good" prospects of rehabilitation but only "some" prospect thereof (ROS 19). Further, his Honour did not accept that the applicant had demonstrated contrition: he was not convinced of the genuineness of the claims contained in the letter, which the applicant had sent to the judge (ROS 15). These and the other factors upon which the applicant relies were all taken into account by the sentencing judge. It has not been demonstrated that he erred in any respect in so doing.

56 The cases relied upon by the applicant were Budd [2002] NSW CCA 302; Uasi [1999] NSW CCA 306; Sotheren [2001] NSW CCA 425; Bavadra (2000) 115 A Crim R 152; Merritt [2000] NSW CCA 365; Itamua [2000] NSW CCA 502 and Karaman (2002) 128 A Crim R 72.

57 Of these authorities, Sotheren, Bavadra, Merritt, Itamua and Karaman were all Crown appeals that were upheld or the sentences increased. However, it must be borne in mind that when this Court re-sentenced in those cases it did so in accordance with the customary principle that the re-sentence should not exceed what was the minimum available to the sentencing judge at the time of sentence. In each case it was recognised that because of the double jeopardy principle the sentences imposed by the Court were less than those that might otherwise have been properly imposed at first instance. Accordingly, for comparative purposes they need to be treated with some caution.

58 In Sotheren the respondent was re-sentenced to an overall term of 12 years with a non-parole period of 6 years in respect of 6 offences including manslaughter, aggravated robbery inflicting grievous bodily harm and aggravated robbery maliciously inflicting actual bodily harm.

59 In Bavadra the respondent had pleaded guilty to 2 counts of robbery whilst armed with an offensive weapon, 2 counts of robbery in company and 3 counts of robbery whilst armed with a dangerous weapon. There were also 11 offences in the Form 1, which included 6 unrelated robberies. This Court re-sentenced the respondent to imprisonment for 12 years with a non-parole period of 8 years.

60 In Merritt, the respondent was found guilty of assault with intent to rob whilst armed with a sawn-off rifle during which the victim was wounded. He was re-sentenced to a head sentence of 18 years with a non-parole period of 13 years 6 months. The respondent had a significant history of robbery offences, had served numerous custodial terms and had shown no evidence of remorse.

61 In Itamua the respondent was re-sentenced to 14 years cumulative on a fixed 3 year term with a non-parole period of 8 years in respect of 42 offences of robbery with a dangerous weapon and one offence of assault with intent to rob whilst armed with a dangerous weapon. Numerous victims were subjected to some violence. However, none of them was beaten to within an inch of their life, as was the victim in the present case.

62 In Karaman the respondent was re-sentenced to a head sentence of 12 years with a non-parole period of 9 years for multiple offences of robbery in company, aggravated robbery with wounding (2 victims were stabbed in the neck requiring sutures), steal motor vehicle and use offensive weapon to avoid apprehension.

63 In Budd, an appeal against sentences imposed for 1 count of armed robbery with wounding, 13 counts of robbery whilst armed with an offensive weapon, 1 count of assault with intent to rob and sundry offences on two Form 1's was allowed and an effective overall head sentence of 13 years was imposed with a non-parole period of 8 years 6 months.

64 In Uasi the offender pleaded guilty to 4 charges including robbery in company, attempted aggravated robbery with wounding and 2 further armed robberies. The sentencing judge was asked to take into account 16 Form 1 offences, 14 of which comprised robbery in company. On the attempted aggravated robbery charge, the offender was sentenced to 12 years with a minimum term of 8 years. On the remaining counts he was sentenced to a fixed term of 8 years to be served concurrently. The sentencing judge considered that the criminality of all these offences was serious.

65 In sentencing the applicant to a period of 16 years with a non-parole period of 9 years, it would be reasonable to assume that the sentencing judge took a period of 20 years as his starting point and allowed a 20% discount for his youth, prospects of rehabilitation and plea of guilty. Although in some respects the applicant was in a more favourable position than the offenders in the cases to which we have referred, at least in terms of the number of offences in respect of which he was being sentenced, the fact remains, as the sentencing judge held, that the offence in question fell into the worst category of such offences. It was a case of gratuitous violence of the worst kind. The sentencing judge described it as "a senseless and violent and cruel thing to do". It left its victim with a life which had been shattered and from which he would never recover. It would appear that the main perpetrator of the violence was the applicant and he and his associates left the victim bleeding by the side of the road, not caring whether or not he died. Finally, at the time of the offence the applicant had pleaded guilty to the counts in the first indictment and was on bail awaiting sentence. None of these findings of the sentencing judge were challenged.

66 In the foregoing circumstances, we do not consider that there is such a disproportion between the sentences imposed in the cases upon which the applicant relied and that imposed by the sentencing judge in the present case as to demonstrate that the sentence imposed upon the applicant exceeded the limits of a sound exercise of the sentencing discretion. The objective seriousness of the subject offence, the need for general and particular deterrent and the necessity to meet the fundamental purpose of the punishment, namely, the protection of society, indicates that the sentencing judge properly balanced the objective and subjective factors which he was required to take into account in exercising his sentencing discretion. In our opinion, it has not been demonstrated that a less severe sentence is warranted in the circumstances of this case. Accordingly, we would reject this ground of appeal.

67 In re-sentencing the applicant for the offence of steal motor vehicle, we consider that the order for partial accumulation should be preserved.

Conclusion

68 We therefore make the following orders:

a) Leave to appeal granted.

b) Appeal against sentence in respect of the second count of the second indictment dismissed.

c) Appeal against sentence in respect of the first count of the second indictment allowed and the sentence quashed.

d) In lieu of the sentence imposed in respect of the first count of the second indictment, the applicant is sentenced to imprisonment for 4 years commencing 30 April 2004 and expiring on 29 April 2008 with a non-parole period of 2 years 3 months commencing on 30 April 2004 and expiring on 29 July 2006.
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Last Modified: 06/21/2004