R v Shahabi
[2003] VSCA 108
•15 August 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
Nos. 215 of 2002
218 of 2002
219 of 2002
| THE QUEEN |
| v. |
| MUSTAFA SHAHABI HARPREET AHLUWALIA |
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JUDGES: | WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 July 2003 | |
DATE OF JUDGMENT: | 15 August 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 108 | |
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Criminal law - Sentence - Armed robbery - Youthful offenders - Not immature - Mitigating factors taken into account in determining concurrency of sentences and also in fixing individual sentences - Sentences of six years' with minimum terms of three years and nine months not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant Shahabi For the Appellant Ahluwalia For the Appellant Salaria | Mr K.G. McGowan Mr G.J. Thomas Mr G. Gilbert | Paul A. Vale Pty. Victoria Legal Aid Kelvin R. Leggs |
WINNEKE, P.:
I have had the opportunity of reading the reasons for judgment of Buchanan, J.A. I agree, for the reasons which his Honour gives, that these appeals should be dismissed. The sentences which his Honour imposed upon each of these young men were well within the range of sentences open to his Honour having regard to the gravity of the successive and violent armed robberies carried out, in company, upon vulnerable and defenceless victims. Although each of these young men acted on this night in a manner which was inconsistent with his established character, it was necessary, as the experienced trial judge noted, to impose sentences which properly reflected principles of general deterrence and to manifest the court’s denunciation of the gravity of the appellants’ conduct. I agree with Buchanan, J.A. that, although some of the sentencing remarks made by his Honour were infelicitous, it is apparent that, when read in context, they do not amount to sentencing error re-opening the sentencing discretion. Even if they did, I do not think that any different sentences from those which his Honour imposed should have been passed.
CALLAWAY, J.A.:
I agree with Buchanan, J.A., for the reasons his Honour gives, that these appeals should be dismissed. Like the learned President, I would not have intervened even if specific error had been shown.
BUCHANAN, J.A.:
In the early hours of 7 October 2001 the appellants robbed two taxi drivers in order to obtain money to pay rent to the landlord of Ahluwalia and Salaria.
The appellants first hailed a taxi in Malvern and were driven to a street in Oakleigh. When the taxi stopped one of the appellants placed a knife next to the driver's throat. Another appellant emptied the driver's pockets, taking some $370 and a cab-charge slip and $30 from a coin container. The appellants taped the
driver's head to the headrest of his seat, the tape covering his eyes, and taped his fingers together. The appellants fled on foot. They took the car keys and threw them away.
The proceeds of the crime were insufficient to pay the rent and the appellants immediately set out to rob another taxi driver. They went to the city, hailed a cab and directed the driver to take them to a street in Burwood, where they repeated the modus operandi of the first robbery. The second taxi driver was threatened with a knife placed against his neck and his head was taped to his seat. He was also punched several times in the head. He was robbed of the cash he carried, some $380, and a mobile telephone. Again, one of the appellants took the keys of the taxi and threw them away. The appellants escaped in a car driven to the place of the robbery by another person.
Each of the appellants was a young man at the time of the commission of the crimes. Ahluwalia was aged 19 years, Salaria was aged 22 years and Shahabi was aged 20 years. Neither Ahluwalia nor Salaria had any previous convictions. Shahabi had been found guilty of one offence in the Children's Court and had been given a good behaviour bond. Ahluwalia and Salaria both came to Australia from India, Ahluwalia in 1999 and Salaria in 1998. At the time of the commission of the offences they lived together. Both were unemployed and in financial difficulties. They came to Australia alone as students, without their families. Salaria completed most of a course in information technology at Holmesglen TAFE College. Ahluwalia dropped out of an advertising and marketing course at the same college as he could not pay the fees. He lost his job as a kitchen-hand when he became ill. Shahabi migrated to Australia from Afghanistan in 1994. He participated in the crimes apparently not for personal gain but only to support his co-offenders. Unlike the other appellants, Shahabi came to Australia with his family. After completing year 11, he worked in fast food outlets and as a mechanic.
The appellants pleaded guilty in the County Court to a presentment containing two counts of armed robbery (counts 1 and 3) and two counts of unlawful imprisonment (counts 2 and 4). The appellants were sentenced to four-and-a-half years' imprisonment on the second count of armed robbery (count 3), to a term of three-and-a-half years' imprisonment on the other count of armed robbery (count 1) and to 12 months' imprisonment on each of the counts of false imprisonment. The sentencing judge ordered that 12 months of the sentence on count 1 and six months of the sentence on count 2 be served cumulatively on each other and upon the sentence on count 3, producing a head sentence of six years' imprisonment. It was ordered that each of the appellants serve a minimum period of three years and nine months before becoming eligible for parole.
The grounds of appeal relied upon by Ahluwalia and Salaria as argued were substantially identical. The grounds in the case of Ahluwalia were as follows:
"1.That the sentence of six years and the non-parole period of three years and nine months are manifestly excessive in all the circumstances.
2.The sentence imposed on count 3 (the second armed robbery) was manifestly excessive.
3.The learned sentencing judge erred in finding that the applicant was not to be regarded as a youthful offender for sentencing purposes.
4.The learned sentencing judge erred in 'balancing' the mitigating factors against the seriousness of the offences.
5.The learned sentencing judge erred in reflecting the relevant mitigating factors only in the orders for concurrency."
The grounds of appeal in the case of Shahabi are:
"1.In all the circumstances the head sentence imposed and the non-parole period fixed are manifestly excessive.
2.The learned sentencing judge erred in failing to find that the appellant was a youthful offender.
3.The learned sentencing judge failed in equating the appellant's conduct to that in DPP v. SJK, DPP v. GAS [2002] VSCA 131.
4.The learned sentencing judge erred in finding that the appellant appreciated the gravity of the crime.
5.The learned sentencing judge erred in finding that there was nothing in the appellant's personal background 'which suggests to me that you possess such a lack of maturity so as to prevent you appreciating the seriousness and moral culpability of your conduct.'
6.The sentencing judge erred in failing to give sufficient weight to the appellant's early plea and remorse."
The complaints concerning the sentencing judge's treatment of the age of the appellants stem from the passage in the sentencing remarks in which his Honour said:
"With respect to youthful offenders, it has been recently re-stated that the focus is usually placed on the offender's prospects of rehabilitation, but this is by no means the only basis upon which it assumes relevance. That principle derives from the awareness that by reason of the stage of the development that the offender may have reached, that is the relevant maturity of the offender, he or she may not fully appreciate the seriousness and the real consequences of the offending actions. In your respective cases, whilst you are young men, you are not to be regarded as youthful offenders and, in my view, there is nothing in your personal backgrounds which suggest to me that you possess such a lack of maturity so as to prevent you appreciating the seriousness and moral culpability of your conduct."
The sentencing judge then quoted from the judgment of the Court of Appeal in DPP v. SJK and GAS[1]:
"Conduct of this kind can hardly be explained or ameliorated to any substantial degree by reference to their respective levels of maturity."
[1][2002] VSCA 131 at [62] per Phillips, C.J., Chernov and Vincent, JJ.A.
Counsel for the appellants submitted that the sentencing judge erred in treating the youth of the appellants as relevant only to the question of their maturity, with the result that when he found that they did understand the gravity of the offences and their responsibility for them, he excluded their youth altogether as a factor relevant to the sentencing process.
In my opinion, the sentencing judge did not fall into the error identified by counsel. In DPP v. SJK and GAS the Court introduced their remarks concerning maturity with the words:
"When youth is raised for sentencing considerations, the focus is usually placed upon the offender's prospects of rehabilitation, but this is by no means the only basis upon which it assumes relevance."[2]
In the present case, the sentencing judge also said that in the case of youthful offenders rehabilitation was important but that was not the only respect in which youth was relevant. He found that the appellants were not to be treated as immature offenders, for they did fully appreciate the gravity and consequences of their actions. The immaturity of a youthful offender is generally subordinate to the prospects of rehabilitation. The decision in R. v. SJK and GAS did not purport to elevate the importance of immaturity above rehabilitation and I do not think that the sentencing judge in the present case did so. He did no more than find that immaturity due to youthfulness was not present in this case.
[2]Above at [61].
Counsel who appeared for the appellants on the plea submitted that suspended sentences or community based orders were appropriate having regard to the youth of the appellants, their good records and prospects of rehabilitation. In my view, the sentencing judge's statement, that the appellants "are not to be regarded as youthful offenders", meant either that they were not youthful offenders whose actions were ameliorated by their immaturity or that, in the circumstances of this case, the youth of the appellants did not outweigh other sentencing considerations, such as general deterrence, so as to warrant the imposition of sentences that did not involve immediate incarceration. I do not think that his Honour altogether excluded the effects of the appellant's age as a sentencing consideration. Before the passage I have quoted in paragraph [9], above, the sentencing judge said that the appellants were "relatively young men" and "possess prospects of rehabilitation". In my view, it is not to be supposed that he lost sight of youth and prospects of rehabilitation in fixing the sentences.
With respect to grounds 4 and 5 in the case of Shahabi, no error has been shown to have been made by the sentencing judge in finding that Shahabi was not so immature that he did not appreciate the gravity of the crimes and his moral culpability for them.
The sentencing judge explained the extent of concurrency in his sentencing remarks in the following terms:
"I have attempted to reflect the matters which go in mitigation, to which I have referred, by providing substantial concurrency for what are, in reality, quite separate and unpardonable offences. Notwithstanding that they occurred in a space of some three to four hours, the nature of the offending would ordinarily justify significant separate and distinct punishment."
The mitigating factors to which his Honour had referred included the appellants' early pleas of guilty, their admissions made to the police, their youth, good records, remorse and prospects of rehabilitation. In my opinion, the sentencing judge did not limit the effect of those matters to determining the extent to which the sentences were to be concurrent. His Honour did not say that he had not taken mitigating factors into account in fixing the sentences for each count and the minimum terms. The length of the individual sentences shows that they were not fixed without regard to mitigating factors. His Honour only said that the degree of concurrency he ordered reflected mitigating factors, presumably in producing overall sentences that were proportionate to the criminality of the offenders and their personal circumstances.
Each appellant was sentenced to a term of four-and-a-half years' imprisonment on the count relating to the second robbery, 12 months more than the sentences imposed on the first robbery. Counsel for the appellants contended that the sentences for the second robbery were manifestly excessive having regard to the sentences imposed in respect of the first robbery. I do not agree. There were aggravating circumstances attending the second robbery that were not present in the first robbery, and which warranted a heavier sentence. The appellants were not deterred by their experience of the first offence. They added the arrangement of a getaway car to their plan. Not content with restraining him with tape, they punched the second taxi-driver to the head. In my opinion, the sentencing judge was entitled to take those matters into account; the sentences imposed for the second robbery were not manifestly excessive.
Finally, there is the contention that the head sentences and minimum term were manifestly excessive.
The crimes committed by the appellants were serious. The maximum sentence for armed robbery is 25 years' imprisonment; the maximum sentence for false imprisonment is ten years' imprisonment. The appellants planned the robberies and equipped themselves with knives and tape. The taxi drivers robbed by the appellants were alone and vulnerable. They were threatened with knives placed beside their necks. They were physically manhandled and one was assaulted. The nature of the crimes calls for sentences which will deter their repetition by other persons. The robberies were quite distinct events although they were committed within three hours of each other, and the taping of the taxi drivers was not just an aspect of the armed robberies but the commission of further crimes that warranted additional punishment. A measure of cumulation was appropriate.
On the other hand, there were substantial mitigating factors. Each of the appellants expressed remorse. The sentencing judge accepted that each of them was remorseful and said that they had "satisfactory backgrounds and possessed prospects of rehabilitation." He said that he did not regard Shahabi's appearance in the Children's Court as having any significance in the sentencing process. Ahluwalia and Salaria went to the police to confess after Shahabi was arrested. When they were interviewed by the police the appellants admitted their complicity in the commission of the crimes. Each of the appellants pleaded guilty at an early stage, and they were entitled to discounts for the utilitarian value of their pleas in addition to their evincing remorse. As the sentencing judge himself noted, each of the appellants was youthful and that matter bore upon their prospects of rehabilitation. None of them had any relevant prior convictions.
When the mitigating factors present in this case are weighed in the light of the circumstances attending the commission of the crimes, I do not think that the head sentences and minimum terms imposed upon the appellants were beyond the range that was available to the sentencing judge.
I would dismiss the appeals.
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