R v Fidow - [2004] NSWCCA 172

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Fidow [2004] NSWCCA 172

FILE NUMBER(S):
60071/04

HEARING DATE(S): 19 May 2004

JUDGMENT DATE: 19/05/2004

PARTIES:
Regina
Dion Imila Fidow

JUDGMENT OF: Spigelman CJ Hulme J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1022

LOWER COURT JUDICIAL OFFICER: Patten DCJ

COUNSEL:
Mr Bozic SC (Fidow)
D C Frearson (Crown)

SOLICITORS:
S O'Connor (Fidow)
S Kavanagh (Crown)

CATCHWORDS:
CRIMINAL LAW
appeal against severity of sentence
top of the range criminality
special circumstances
non-parole period
robbery in company causing grievous bodily harm

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1922

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

- 9 -

IN THE COURT OF
CRIMINAL APPEAL

60071/04
SPIGELMAN CJ
HULME J
ADAMS J
Wednesday 19 May 2004

REGINA v Dion Imila FIDOW

Judgment

SPIGELMAN CJ: This is an appeal against the alleged severity of a sentence imposed by his Honour Judge Patten in the District Court on a charge of robbery in company causing grievous bodily harm under s98 of the Crimes Act 1900. The maximum penalty for the offence is 25 years imprisonment. In sentencing the applicant his Honour took into account a further seven offences on a Form 1. Those offences were offences of dishonesty, rather than violence, in connection with various loan and credit applications.
His Honour sentenced the applicant to 11 years imprisonment with a non-parole period of 8 years. The sentence commenced on the date on which the applicant was arrested.
The submissions, made on behalf of the applicant, accepted his Honour’s characterisation of the offences, as being towards the top of the range for criminality for an offence of this character. The applicant did not contend that the head sentence of 11 years was in error. The appeal relates to the non-parole period.
His Honour stated the facts in the following passage of his judgment. These findings are not in issue.
“The offence on the indictment was committed at about 1.00pm on Monday 3 September 2001 when the victim, Mr Gurgis, left the premises of his Volume Plus Service Station at Long Jetty driving a red Suzuki four wheel drive. He had with him a bank bag containing an amount of $11,855, which represented the weekend takings.
As it appears, as part of a conspiracy to rob Mr Gurgis involving Mr El-Andouri and at least one other person, unfortunately so far unidentified, Mr Gurgis’ car was deliberately rammed by the robbers. The offence evidenced a considerable amount of pre-planning. It is obvious that, in part, this was due to the prisoner’s knowledge, through his sister-in-law who had been an employee of Mr Gurgis, of the procedures adopted at this service station by Mr Gurgis for the banking of money. It is also obvious from the material before me that Mr Gurgis had, in effect, been staked out and his movements put under observation by the prisoner and his co-offenders.
After the deliberate collision with his car the prison and the other offenders, under pretence that the collision had been an accident, arranged to park the two cars together in an adjoining street and they approached Mr Gurgis. It then appears that he was with force removed from or prevented from re-entering his vehicle, was violently assaulted and left for dead on the road while the offenders drove away with the money which Mr Gurgis had been intending to bank.
There is doubt as to the precise part played by the prisoner in the violence perpetrated upon Mr Gurgis and it is impossible to be satisfied beyond reasonable doubt that he was directly violent towards him. It seems in any event that the principal assailant was Mr El-Andouri who at one time was seen sitting on Mr Gurgis, then lying motionless on the ground, punching him. Perhaps the most that can be said about the prisoner’s part is that he stood by and watched and that he then left a man to all intents and purposes dying by the side of the road.”
The severity of the assault in which the applicant was implicated was set out in his Honour’s judgment as follows:-
“It is plain from the material tendered in evidence that Mr Gurgis’ life has been significantly destroyed. He was on a life support machine and remained in a coma for some months. He was found to have suffered a severe closed head injury with a severe fractured skull in a number of places. He has suffered permanent brain damage. He has a non-functioning left arm. He is blind in his right eye and has a reduction of visual field in his left eye. He is incontinent of urine and faeces. He remains dependent on nursing staff for all his daily living activities other than eating.
The medical opinion is that he will never fully recover. He has thus been converted from a young man in his early thirties, owner of businesses and in the prime of his life into a man with severe physical and mental handicaps totally dependent on others for the ordinary needs of life.”
On the basis of these facts his Honour concluded that the offence was towards the top of the range of criminality for offences of this character. The severity of the injuries are of such an order that this determination is plainly correct.
His Honour noted that Mr El-Andouri had been sentenced and took into account that sentence in imposing the sentence that his Honour did. His Honour specifically referred to the fact that Mr El-Andouri was the person responsible for inflicting the horrific injuries on Mr Gurgis. The factors differentiating the two cases were also mentioned. Specifically, his Honour noted the absence of prior convictions in the case of the applicant, and that the crime was out of character for him.
His Honour also noted that the applicant was entitled to the benefit to the plea of guilty, although it was a late plea. His Honour referred to the evidence indicating the degree of contrition on the part of the applicant. His Honour found that there were good prospects of rehabilitation.
His Honour concluded:-
“Having taken all of these matters into account I am satisfied that only a long term of full-time custody will meet the circumstances of the matter, albeit a sentence lesser in my view than the one imposed by Judge Finnane on Mr El-Andouri. I find there are special circumstances, however, arising from the fact that this is the prisoner’s first offence, it will be his first time in custody and it may well be that he will need more than the statutory proportion of supervised rehabilitation upon his release from prison.
I convict the prisoner as charged. I take into account the seven offences on the form one. I sentence the prisoner to imprisonment for a term which will comprise a non-parole period of 8 years to commence upon the date that he was taken into custody, namely 18 June 2002. I set an additional term of 3 years, the total term being 11 years, which will expire on 17 June 2013. The prisoner will be eligible for release on parole on 17 June 2010.”
There are two grounds of appeal, as follows:-
i.His Honour erred in first determining the non-parole period and then determining an additional term by way of a sentence;
ii.His Honour, having found special circumstances, failed to give proper weight to those circumstances in determining the non-parole period.
The first ground is based on the provisions of s44 of the Crimes (Sentencing Procedure) Act 1999 (“the Act”) which at the relevant time required a sentencing judge to first set the term of the sentence and then to set a non-parole period, if any. He submitted that the structure of his Honour’s reasoning was such as to indicate that his Honour proceeded on the opposite basis by imposing a minimum and then an additional term as if under the old regime. A similar basis has re-emerged under the 2002 amendments to the Act which introduced standard minimum non-parole periods for certain offences.
The terminology that his Honour employed was inexact. He did refer, in the first instance, to a “non-parole period” and thereafter to “an additional term”. There may be some inelegance in expression, however, the introductory part of the portion of his Honour’s reasons, where the sentence was imposed, commenced with the words “I sentence the prisoner to imprisonment for a term”. Thereafter, his Honour indicated that the “term” would “comprise a non-parole period” and his Honour then “set an additional term” before concluding with a reference to the “total term”.
Although his Honour’s mode of expressing the actual sentence he imposed may appear to suggest that he turned his mind to the non-parole period in the first instance rather than to the total sentence, I am not convinced that that is what his Honour did in fact do in the reasoning process which led him to the ultimate result. It was just his mode of expression, which was inexact, rather than his reasoning process. His Honour chose to express the sentence in terms of a “non-parole period” and “an additional term”, but that followed what he described as a total “term” which was said by his Honour to “comprise” the two elements. In my opinion, his Honour did not commit the legal error identified (cf Regina v Hansen [2002] NSWCCA 321; Regina v Mako [2004] NSWCCA 90).
In any event, this ground of appeal is of limited, if any, significance in circumstances in which the head sentence is not challenged. Section 6(3) of the Criminal Appeal Act, 1922 requires this Court to form an opinion that “some other … sentence is warranted in law and should have been passed”. No ground is advanced by Mr Bozic SC for forming such an opinion in the case of the head sentence. As Mr Bozic accepted, the applicant would have to make good the proposition that some other non-parole period should be imposed.
The question is: What was the appropriate relationship between the head sentence and the non-parole period? This is raised directly by the second ground of appeal. Under this ground the applicant identified the passage in which his Honour made a finding of special circumstances, which I have already quoted, as having been made on the following three bases:
i. that this was the applicant’s first offence;
ii. that it was his first time in custody and
iii.that he may need “more than the statutory proportion of supervised rehabilitation upon his release”.
In addition, the applicant sought to rely on his Honour’s finding that there were good prospects of rehabilitation and that the violent nature of the crime was out of character for the applicant.
The effect of his Honour’s holding was that the applicant would be subject to supervision on parole for a period of three years rather than two years and nine months. This is a small adjustment. The applicant submitted that his Honour failed to meaningfully reflect his own finding of special circumstances, particularly the need for a greater than usual period of supervisory rehabilitation. However, an alternative view is that his Honour took the decision that a period of eight years of actual time to be served was the minimum that the objective criminality of the offence required.
In R v Simpson (2001) 53 NSWLR 704, this Court identified the wide range of factors capable of constituting special circumstances. Nevertheless, on each occasion in which s44(2) of the Act is invoked, it is necessary for the sentencing judge to make a decision, as noted in Simpson at [68] that the circumstances are sufficiently special for the statutory proportion to be reduced. Section 44(2) requires the ‘decision’ to be that the statutory proportion of one-third be “less”. ‘Double counting’ for matters already taken into account in reducing the head sentence, and therefore already reflected in the non parole period, must be avoided. (See Simpson at [47]). Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur.
The flow of appeals on the issues of special circumstances to the court has not abated, notwithstanding the observations in Simpson at [73]:
“As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non parole period is found to be manifestly inadequate or manifestly excessive”.
There is evidence that findings of special circumstances have become so common that it appears likely that there can be nothing “special” about many cases in which the finding is made. Research by the Judicial Commission of New South Wales of the sentences imposed on 2,801 offenders in the Supreme and District Courts during 2002 suggest that Parliament’s intention that the statutory proportion apply unless “special circumstances” exist that justify departure from it, is not being carried out.
The report states:-
“In his Second Reading Speech introducing the Crimes (Sentencing Procedure) Bill, the Attorney General said: ‘In the ordinary course of events, the non-parole period will be three-quarters of the term of sentence unless the court decides there are special circumstances, in which case it can impose a lesser non-parole period’.
The present study found that this is not the case and it is indeed something of a rarity for a sentence to reflect the statutory norm. Of all sentences of imprisonment imposed by the District and Supreme Courts in 2002, only 12.9% of sentences included a non-parole period of 75% or more of the full term, including 2.9% of fixed term sentences. It would appear, therefore, that ‘special circumstances’ must have been found in up to 87.1% of cases where imprisonment was ordered.
A further finding is that departure from the statutory norm was not only frequent but also quite pronounced:

The most common non-parole period/full term ratio was 50%, which occurred in almost a quarter of cases (23.7%)
More than half of those imprisoned (52.0%) had a non-parole period/full term ratio of 50% or less
Over two-thirds of those imprisoned (69.5%) had a non-parole period/full term ratio of 60% or less
84.7% of those imprisoned had a non-parole period/full term ratio of 66.7% or less.
A finding of ‘special circumstances’ also appears to have been far more common in 2002 than it was in earlier years. According to earlier Judicial Commission research, only 47% of cases sentenced in the District and Supreme Courts in 1992 departed from the equivalent statutory ratio under the earlier Sentencing Act 1989. It should be noted that cases where sentences were cumulated or imposed consecutively – a circumstance accepted as being ‘special’ – have been excluded from this aspect of the study.”
“The findings of this study illustrate the ‘open’ nature of special circumstances and may indicate that the ‘special circumstances’ provision is perhaps being utilised far more than was anticipated by Parliament. However, the mere prevalence of special circumstances does not necessarily mean that non-parole periods are too low or inadequate. The question of whether the non-parole period is proportionate to the gravity of the crime is a separate matter and one that requires a different inquiry.”
(See “Common Offences and the Use of Imprisonment in the District and Supreme Courts in 2002” (2004) Sentencing Trends and Issues No 30 March 2004 pp213-4)

This research makes it necessary for this Court to state the obvious. Simply because there is present in a case a circumstance which is capable of constituting a “special circumstance” does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify a variation.
In the present case the non-parole period which his Honour determined was well within the range of the legitimate exercise of the sentencing discretion. The finding of special circumstances did not require any greater divergence from the statutory proportion than his Honour determined.
The applicant was directly involved in a carefully planned robbery during the course of which his co-offender subjected the victim to an assault which has significantly impaired if not destroyed his quality of life – all whilst the applicant stood by. With respect to the non-parole period, I am not satisfied, within s6(3), that another sentence should have been passed.
Leave to appeal should be granted but the appeal dismissed.
HULME J: I agree.
ADAMS J: I agree but wish to make a comment of my own. One of the crucial purposes of giving reasons for sentence is so that the offender understands the reasons for which he or she is suffering the consequence to be imposed. Where special circumstances are found, as here, it is desirable, in my view, to avoid the appearance of rounding down or the appearance that the special circumstances were regarded as relatively inconsequential and that a sentencing judge explain that the limited reduction of the non-parole period imposed arises from the seriousness of the offence and that, accordingly, the benefit that might otherwise be given as a result of the finding of special circumstances cannot, having regard to the facts of the particular case, justify a non-parole period lower than that which is being imposed. This will enable it more readily to be understood that, although the Judge has found special circumstances, it has had a relatively limited impact on the sentence ultimately imposed.
Subject to that matter I, of course, agree with Spigelman CJ.
SPIGELMAN CJ: The orders of the Court are as I have proposed.

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LAST UPDATED: 01/06/2004