R v SY

[2003] NSWCCA 291

CITATION:	Regina v S Y & Anor [2003] NSWCCA 291
HEARING DATE(S):	07/10/03
JUDGMENT DATE:	15 October 2003
JUDGMENT OF:	Ipp JA at 1; Whealy J at 2; Howie J at 84
DECISION:	1. In the case of the respondent S Y, dismiss the Crown appeal; 2. In the case of the respondent K S: - (a) The appeal of the Crown is allowed; (b) The sentence imposed by Sides DCJ relating to the offence of armed robbery pursuant to s 97(1) of the Crimes Act 1900 and imposed on 23 May 2003 is quashed and in lieu thereof, Impose a sentence of imprisonment for 5 years with a non-parole period of 3 years. Both such periods to commence on 30 October 2001. The non-parole priod is to expire on 29 October 2004.
CATCHWORDS:	Drug addiction - self-medication - leniency - parity - discount for plea
LEGISLATION CITED:	Crimes Act Crines (Sentencing Procedure) Act
CASES CITED:	R v Dib [2003] NSWCCA 117 R V Diamond (NSWCCA, unreported, 18 February 1993 R v Isumander & Anor [2002] NSWCCA 447 Henry & Ors (1999) 46 NSWLR 346 Fernando (2002 NSWCCA 28 at para 64) R v Engert (at 68) R v McIvor [2002] NSWCCA 490 at para 10 and 11 R v Hernando [2002] NSWCCA 489
PARTIES :	Regina v S Y Reigna v K S
FILE NUMBER(S):	CCA 60222/03; 60223/03
COUNSEL:	G. Rowling - Crown R. Button - Respondent S Y H. Dhanji - Respondent K S
SOLICITORS:	C. K. Smith - DPP R. Hill - Respondents S Y and K S

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2/21/3280 2/21/3280; 2/21/3379
LOWER COURT JUDICIAL OFFICER :	Sides QC DCJ

60222/03
60223/03

IPP JA
WHEALY J
HOWIE J

WEDNESDAY 15 October 2003

REGINA v S Y

REGINA v K S

Judgment

1 IPP JA: I agree with Whealy J and Howie J.

2 WHEALY J: There are before the Court two Crown appeals each alleging manifest inadequacy of sentence. The appeals arise out of charges against each respondent relating to the robbery of the Abruzzi Sports Club Limited at Wetherill Park in the early hours of the morning of 6 August 2001. At the outset of the hearing of the appeals, orders were made requiring that each respondent be described by a pseudonym.

3 The first appeal relates to the respondent S Y. He was convicted on 23 May 2003 at Campbelltown District Court by his Honour Judge Sides QC. The respondent had first pleaded guilty before Judge Coleman on 23 September 2003 to three charges. The first was a charge of robbery armed with an offensive weapon [s 97(1) of the Crimes Act 1900 – maximum penalty 20 years]. The second and third related to assaults carried out at the time of the robbery. Pleas to these latter charges were accepted by the Crown in full discharge of other matters in the indictment. The respondent had also asked the Court to take into account on a Form 1 two stealing offences. These had also occurred at the time of the armed robbery.

4 In relation to the armed robbery charge, the learned District Court Judge sentenced the respondent to a term of 3-1/2 years imprisonment commencing on 30 October 2001. His Honour set a non-parole period of two years and three months to expire on 29 January 2004.

5 In relation to each assault, the respondent was sentenced to three months imprisonment. All sentences were to be served concurrently.

6 The respondent had been arrested and charged on 30 October 2001. He had been in custody bail refused from that date.

7 The respondent who is 41 years of age had a prior criminal history. In August 1997 he was sentenced on charges relating to the supply and possession of prohibited drugs. On each charge he had been sentenced to a minimum term of seven months imprisonment with an additional term of three months. On 7 June 2001 he was placed on a twelve months bond for driving a motor vehicle at a time when his licence was cancelled. This bond was current at the time of the robbery.

8 The second Crown appeal is against the inadequacy of the sentence imposed by his Honour on a co-offender, K S. The sentence was also imposed on 23 May 2003. K S had pleaded guilty to one charge of armed robbery and two charges of assault.

9 In relation to the principal offence, the respondent K S was sentenced to imprisonment for three years to commence on 30 October 2001 and to expire on 29 October 2004. The non-parole period was for a term of two years and an order was made that the respondent be released to parole on 29 October 2003.

10 For the first assault he was sentenced to a fixed term of three months imprisonment; for the second to a term of six months imprisonment, all sentences to be served concurrently. The sentencing judge also took into account two stealing charges on a Form 1.

11 The respondent K S had first pleaded guilty to these charges before a magistrate at the Liverpool Local Court on 4 September 2002. He was committed for sentence and adhered to his pleas before the sentencing judge. This respondent had also been in custody since the day of his arrest, 30 October 2001.

12 At the time of the sentencing hearing in May 2003, K S was 39 years of age having been born on 15 February 1964. He also had a previous criminal history. On 5 November 1998 at Parramatta Local Court he had received fines for the possession of prohibited drugs and equipment for administering prohibited drugs. On 30 November 1999 he was sentenced to periodic detention for a series of offences which included a number of driving offences and the possession of a shortened firearm without authority.

13 Before examining the Crown submissions in relation to each appeal, it will be convenient to say something about the nature of the offences and the circumstances which confronted the learned sentencing Judge on 23 May 2003. I have taken the summary from his Honour’s carefully detailed remarks on sentence.

14 There were in fact four people who were involved in the robbery of the Abbruzi Sports Club on 6 August 2001. I shall refer to the co-offenders by pseudonym. The first co-offender – Mr “X” – was, according to the Crown, the person who first devised the robbery proposal. At the time of the sentencing hearing in May 2003, he had pleaded not guilty and was awaiting trial. That trial, in fact, was scheduled to commence this week on 13 October 2003. The second co-offender was one D V. At the time of the offence, he was an employee of the club. He had worked there for two years. It was he who was the “inside contact” in the club. It was he who, in effect, let the co-offenders into the club at about 1.25am that morning, after the club had been closed to the public. He had been in telephone contact with them shortly before this time to give the “green light” for the robbery to go ahead. Three men entered the club through the door which had been opened by D V. They were Mr X and the two respondents. The respondents were carrying replica pistols and Mr X was carrying an iron bar.

15 The three masked offenders forced the staff members, including D V, to lie on the floor. The other staff members were Peggy Harrison, the duty manager; a bar assistant, Natasha Mangarelli; and a security guard, Romano Cugola. Mr Cugola was quite viciously assaulted during the robbery. Mrs Harrison was forced to the safe area where her life was threatened with the “gun” pushed into her back. She was thrown on her knees and her head was pushed into a milk crate. About $55,127 was taken from the safe in notes and coins. Again, Mrs Harrison was threatened with a gun held to her head. She was told she would be killed if she did not open a second safe in the same room. She was then dragged across the floor to another area where an ATM machine was located. She was kicked in the back and her life was threatened again unless she provided access to money in the ATM. She was kicked once again when she was, in effect, thrown on the floor with the other staff members in the poker machine area in the adjoining room. It was to two of these assaults that the respondent K S had pleaded guilty.

16 Miss Mangarelli was also kicked in the ribs by one of the offenders on a number of occasions. These kicks gave rise to one of the assault charges to which the respondent S Y had pleaded guilty.

17 The three men then left the club, scaled the barbed wire perimeter fence and escaped with the money and other property they had stolen. Within a relatively short period of time, police enquiries began to target D V as having a possible connection with the robbery. As so often happens, mobile phone records showed a close connection between telephone calls made on his phone to the others involved in the robbery. On 13 September 2001 he admitted to police his involvement in the offence and its planning. He nominated the other three participants. They were then arrested. The offender D V offered and later undertook to give evidence against Mr X at his eventual trial.

18 His Honour sentenced D V on 6 November 2002. He had pleaded guilty on 6 September 2002 to one charge of armed robbery. The Court was also asked to take into account, two counts of assault committed during the course of the armed robbery. D V was sentenced to imprisonment for three years with a non-parole period of 21 months. The sentence was ordered to be served by way of periodic detention. In his remarks on sentence, his Honour found a very strong subjective case in favour of the offender. In addition, he concluded that the assistance, which had been given to the Crown, and which was to be given in the trial of the accused Mr X was of a very high quality. There were other matters as well which are set out in his Honour’s remarks which led his Honour to impose this remarkably lenient sentence on the co-offender D V.

19 I now return to the sentence hearing relating to the respondents to these Crown appeals. His Honour noted that during the sentence hearing each had sought to minimise the role he had played in the violent and threatening events carried out at the club on 6 August 2001. For example, the respondent S Y admitted he was the person who had taken Mrs Harrison from the safe room to the ATM, but he denied there was any physical violence during the offence and he insisted that no one was kicked. The respondent K S also denied viciously manhandling Mrs Harrison and said he did not see any of the victims kicked. These various statements, as his Honour observed, lacked credibility. The sentencing Judge came to the conclusion, however, that, despite all his misgivings, he could not be satisfied beyond reasonable doubt that K S was the offender who took Mrs Harrison to the ATM and that he kicked her there or kicked her when she was back in the poker machine area. He accepted Mrs Harrison’s evidence in its entirety.

20 His Honour correctly noted, however, that the respondent K S participated in a joint enterprise to rob the club. He had been involved in the planning of the enterprise and the securing of the replica weapons. His Honour had no difficulty in concluding beyond reasonable doubt that each respondent had appreciated that it was likely that staff members would be threatened with weapons, manhandled and assaulted, if necessary, to secure the anticipated fruits of the robbery. While his Honour could not be certain who was the perpetrator of each and every kick or blow, his Honour correctly concluded that each of the present respondents, as a participant in the joint enterprise, was responsible for the actions of the others.

21 Between pages 17-36 of his remarks on sentence, his Honour then set about compiling a very careful examination of the subjective features relative to each respondent’s case and, as well, a careful comparison of their situations. For present purposes, it is necessary only to mention a number of these and only in summary fashion.

22 First, in relation to the respondent S Y, his Honour traced his history and background. He was born in Tehran, the capital of Iran, on 30 August 1962. He was educated to a HSC standard but was an average student. At the age of 17 he was imprisoned and tortured in Iran. He was released from prison only when his family raised money to bribe a government official. He spent two years in the army during the Iran/Iraq War. Due to his experiences in the war he suffered difficulties in adjusting to life afterwards and experienced nightmares. He was forced to flee Iran in 1984 and went to Turkey. He remained in Istanbul, working in his father’s supermarket, for about seven years. After this the family split up and he came to Australia in August 1991. He had been married when he arrived in Australia but was divorced in the mid-1990’s. He had worked in Australia as a house painter. He first used heroin when he was in the Iranian Army. It appears, however, that he stopped using illegal drugs after he left the army and did not use them at all during the seven-year period while he was in Turkey. When he came to Australia in the early 1990’s he started to use cannabis again and in 1994 resumed the use of heroin. In about 1996 he placed himself on a methadone programme and since that time has been on a methadone programme fairly continuously. He has however, continued to use heroin on a periodic basis. He has continued with the methadone programme while in custody.

23 As to his physical and mental health, he has Hepatitis C as a consequence of needle usage. He had sought psychiatric assistance prior to his arrest in this matter at the Granville Medical Centre. While in custody he was seen by Dr Kipling-Walker, a psychiatrist. At the sentence hearing there was tendered a psychological report prepared by Amy Hollands. Both the psychiatric and psychological conclusions in relation to S Y were that he was suffering from chronic post-traumatic stress disorder, heroin dependence and depression. His cognitive functioning behaviour and emotion was described as dysfunctional. He had reported having visual hallucinations relating to his combat exposure and consequent stress. He was not however, despite his depression, a suicide risk. Recommendations were made as to his need to receive counselling and to take part in a drug and alcohol programme.

24 At p 21 his Honour concluded: -

“In my view, it is clear that this offender’s drug use has been a means of self-medication to deal with the symptoms that he experienced as a consequence of the trauma arising from the torture and the war. It appears that his abuse of drugs may have had some part to play in the commission of the offence in that it did contribute to his dysfunctional cognitive functioning. This entitles him to some leniency: para 273 R v Henry (1999) 46 NSWLR 346.”

25 In relation to the respondent K S, the sentencing judge took a similar approach. First, he examined his background and history and then considered his present physical and medical condition and his use of drugs and alcohol. K S had been born in the south of Iran on 15 February 1964. He was the youngest in a family of nine children. After the commencement of the Iran/Iraq War, his family moved to Shiraz in the north of Iran. He lived there until he came to Australia in 1990. He was educated at school for about twelve years. When he was 14 he fought in the war for a number of months. After leaving school he saw army service again. He returned to the war and experienced combat when he was somewhat older. He worked in his father’s real estate business until he was about 26. This was the time when he decided to flee Iran. He did so because his fiancée, who was opposed to the government, had disappeared. He spent a year in the Villawood Detention Centre in Sydney before he received a temporary visa. He became a permanent resident after about four years. He had worked casually in Australia as a house painter but was not in permanent employment.

26 K S had suffered nightmares and severe headaches after the conclusion of the war between Iran and Iraq. He had continued to experience these together with dizziness and pain in his head which made sleeping difficult for him. In 1999 he tested positive for Hepatitis B.

27 His history of drug abuse began with the use of cannabis at about the age of 14 when he was first engaged in the war. A consumption of both cannabis and alcohol has been a feature of his life since. He began to abuse heroin at the age of 21 while he was still in Iran. He continued to take heroin after his arrival in Australia. Prior to his arrest he had never participated in any rehabilitation programme. While in custody he had undertaken a drug and alcohol awareness programme and put his name down for a programme related to gambling problems. Part of the proceeds he received from the robbery were used to repay a drug dealer $3,500.00. He spent other parts of the proceeds on drugs and gambling. At p 25 his Honour said: -

“I accept that this man commenced to abuse drugs and liquor to escape the memories of the war, to help him cope with life in Australia and to deal with the pain in his head. I accept that the offender committed this crime in order to fund his drug addiction. That explains but does not excuse the crime. However, the explanation should be understood in the context that he abused illegal drugs and liquor in order to self-medicate to cope with his traumas. As with the other offender, he is entitled to leniency in accordance with para 273 of the Henry decision.”

28 His Honour however, noted that the respondent had not made the same efforts as his co-offender S Y to address his drug problems.

29 Next, his Honour dealt with the prospect that K S would provide some assistance to the police particularly in relation to the trial of the co-offender Mr X. His Honour’s conclusion was that K S’s evidence before him had not been credible in a number of respects and that any assistance he might give the Crown case in the forthcoming trial was likely to be quite limited.

30 In general terms, the sentencing judge concluded that there was no real basis on which he could distinguish the criminality of the respondents. Nor was there any real basis to distinguish their subjective cases.

31 His Honour then considered parity issues by making comparisons not only between the respondents to these appeals but by re-examining the criminality and subjective case of the co-offender D V who had been sentenced by him back in November 2002. After making this detailed examination, his Honour said at p 33: -

“The principle of parity will be applied reflecting the material differences that I have indicated between these two and between them and D V.”

32 Finally the sentencing judge endeavoured to draw together the various strands of comparison he made between the position of the two men indicating where leniency could be allowed and where it could not. His Honour had earlier indicated he would give a substantial discount – 25% - in relation to the guilty pleas entered by each respondent. He expressly found the offence of armed robbery to have been “of a most serious kind”. He took into account the impact on those who had been assaulted during the robbery. He then concluded his remarks at pages 34 and 35 as follows: -

“Absent exceptional circumstances, nothing other than a full-time custodial sentence is appropriate for armed robbery. There are no exceptional circumstances in either case. The Henry guideline does not apply because of the age of the offenders the amount of money stolen and the extent of premeditation. In assessing the appropriate length of the sentence in each case, I will take into account, on the question of deterrence and retribution, the theft of the personal property of the two female victims.

In each case I find special circumstances. They are the need for each offender to have an extended period in the community with appropriate professional support to deal with the issues I have identified as relevant to their respective rehabilitation.

Each of the assaults calls for a full-time custodial sentence. However, the proper application of principles of parity require that they be served concurrently. The main reason for that is that the assaults were an integral part of the robbery and overall violence has been considered in assessing the criminality involved in the robbery.

The sentences that I propose to impose and the non-parole periods may seem unduly lenient. They should not be regarded as giving any indication (of) the sorts of sentence that will be imposed in cases of a similar nature. The reason for this appears from what was said in the case of R v Fernando (2002) NSWCCA 28 by the Chief Justice with whom Wood CJ at CL and Kirby J agreed. In that case, the Chief Justice said:

‘As is well established, it is a primary objective of sentencing for criminal offences that the community must be protected from the commission of crimes by deterring both the particular offender and other possible offenders – referred to as personal and general deterrence respectively. In a case of the character now before the court, by an offender with this record, the protection of the community requires a substantial period of imprisonment. It is however, often the case that such considerations of deterrence are properly tempered by considerations of compassion which arise when the court is presented with information about the personal circumstances which have led an individual into a life of crime’.”

33 His Honour then imposed the sentences which I have described earlier. In the case of K S he added: -

“In his case I have not given full effect to the assistance to the authorities in setting the non-parole period. To set a non-parole period lower than that which I have indicated would not, in my view, have reflected the objective seriousness of the crime.”

Submissions

34 The Crown submissions in relation to the respondent S Y may be briefly stated. First, the circumstances of the armed robbery were of such gravity and such seriousness that the resultant sentence was plainly and manifestly inadequate. This submission took in to account the various aggravating features of the offences revealed by the factual circumstances found by the sentencing judge.

35 Secondly, the fact that the sentencing judge found that the guidelines in Henry & Ors (1999) 46 NSWLR 346 did not apply – because the circumstances of this offence were different from and more serious than the characteristics in the Henry paradigm - but nevertheless imposed a sentence less than the bottom of the range in the guideline judgment demonstrated that the sentencing judge had fallen into error.

36 Thirdly, the discount of 25% was not permissible in that the respondent’s plea was not a plea at the earliest possibility and hence, did not warrant a 25% discount.

37 Fourthly, the Form 1 offences should have resulted in an extension of the penalty to stress the need for adequate considerations of personal deterrence and retribution.

38 Fifthly, the sentencing judge erred by misapplying the remarks in Henry at para 273 of the decision in the judgment of Wood CJ at CL. In particular, it was submitted that the respondent’s drug taking was a matter of personal choice and was not a subjective circumstance justifying the extensive leniency given to it by the sentencing judge.

39 Finally, the Crown submitted that the sentence simply did not properly reflect the objective seriousness of the offence and failed to meet the fundamental purpose of punishment, namely the protection of society.

40 The principal points made in Mr Button’s submissions on behalf of S Y were these. First, that the sentencing judge had rightly treated the guilty plea as one which might be taken to have been made at the first opportunity in the particular circumstances. Secondly, the respondent’s subjective circumstances, including his lack of a serious record and the fact that he had suffered dreadfully through his life, were matters which entitled the sentencing judge to take the view he did. Mr Button’s written submissions addressed at considerable length the history involved in the circumstances of the respondent’s upbringing and adulthood. It was suggested, in particular, that the experiences of the respondent and his efforts at rehabilitation were unusual to the point of being exceptional. Thirdly, Mr Button stressed the wide discretion of the sentencing judge. He accepted that the sentence imposed was very lenient but submitted that this Court should not intervene unless it were to find clear error at first instance. Nextly, Mr Button submitted that the reliance of the sentencing judge on para 273 in Wood CJ at CL’s decision in Henry was warranted. Counsel acknowledged that the ultimate sentence was shorter than that discussed in the guideline judgment of Henry but stressed, as did Mr Dhanji in his submissions on behalf of the respondent K S, that a guideline judgment is not an objective yardstick against which all sentences for armed robbery must be strictly measured in order to determine whether an error has occurred. He argued that the fact that the sentence imposed in this matter was shorter than the sentence in the guideline judgment did not establish error.

41 Finally, Mr Button referred to the Court’s undoubted discretion not to intervene and the principles of double jeopardy. As to the first of these matters counsel relied upon matters personal to the circumstances of the respondent which would warrant the Court, in its discretion, refraining from intervention. Secondly, he referred to parity considerations arising out of the sentence imposed on the co-offence D V.

42 In his oral submissions before the Court, Mr Button placed reliance upon material which was at that time handed to the Court on a confidential basis. This included a statement from the respondent S Y together with a letter dated 7 October 2003 from an investigating agency. There was, in addition, an affidavit of 7 October 2003. The affidavit provided material which dealt with the respondent’s progress while in custody. From this material the following emerged: it is clear that he has progressed well whilst in prison and has reduced his current level of methadone substantially. There is every prospect that he will be off methadone completely before his release from prison. It is his intention and hope to start work afresh as a painter upon release.

43 The affidavit also shows that he has been, and is likely to remain in protective custody. This is because of the material received on a confidential basis. In short, the latter demonstrates a high level of co-operation and assistance which has been, and is to be provided, by the respondent S Y in connection with the investigation and proposed prosecution of an offender relating to an unconnected but very serious crime. The assistance has been of such utility to the investigating authorities that Mr Rowlings on behalf of the Crown conceded that if the Court were to consider increasing the sentence imposed on S Y it would at the same time be appropriate to reduce it by as much as 50% to reflect the assistance to authorities which has been given by S Y since the sentence was imposed in May 2003.

44 In the light of these fresh matters, Mr Button’s submission was that the Court, even it were minded to intervene in relation to the sentence imposed on the respondent S Y, should, in the exercise of its discretion, dismiss the appeal.

45 In relation to the Crown appeal against the sentence imposed on the respondent K S, the Crown essentially repeated the submissions which had been made in the case of the respondent S Y.

46 Mr Dhanji’s written submissions were to a degree repetitive of those advanced by Mr Button. First, he repeated the substance of the Henry submission that had been made by Mr Button. Secondly, Mr Dhanji argued that the sentencing judge was entitled in the case of his client to give him a discount of 25%. In his client’s case the plea had been entered before the magistrate at the Local Court. Thirdly, he argued that there was no error in relation to the manner in which the sentencing judge had dealt with the Form 1 matters. These matters he argued “paled into insignificance” when compared with the primary offence. They did not warrant any increase in penalty.

47 Fourthly, Mr Dhanji, as Mr Button had done, argued that the judge was entitled to take a view of the circumstances which had led to this respondent’s drug addiction as a matter which required leniency. He referred to the background of the respondent in the Iran/Iraq War and his use of cannabis at an early stage in his youth. Next, Mr Dhanji argued that considerations of compassion should temper the aspects of deterrence appropriate in the present matter. In this regard, he submitted that the reference by the sentencing judge to the well known passage in Fernando (2002 NSWCCA 28 at para 64) was relevant and appropriately applied in the present matter to his client.

48 Mr Dhanji in his written submissions repeated the parity argument that had been advanced by Mr Button in relation to the sentence imposed on D V. He argued that parity was a relevant principle in relation to the respondent KS and that no greater punishment could have been imposed without offending the principle of parity. Finally, counsel argued that there was a delay from the date of sentence 23 May 2003 to the 27 June 2003 when the notice of appeal which had been filed a few days earlier was served on his client. He stressed that his client was due for release to parole on 29 October 2003, that is three weeks after the date listed for the hearing of the appeal. He relied as well on the affidavit of the respondent which outlined his progress while in custody.

49 In his oral submissions Mr Dhanji stressed that, as a matter of discretion, the Court should not intervene. This was because the Crown had apparently decided not to appeal against the sentence imposed on D V. This had left the respondent K S in a situation where he would have a legitimate sense of grievance if his sentence were to be increased. Moreover, he argued that his client would have an even higher sense of grievance if he were to give assistance in the proposed trial against Mr X. This would be especially so in circumstances where his own sentence was to be increased but that of S Y was not because of assistance given by the latter, the details of which are to remain confidential, at least so far as K S is concerned.

Resolution of the Submissions

50 In my opinion each of the sentences imposed for the armed robbery was and is manifestly inadequate.

51 It may be observed at the outset that the objective criminality revealed by the circumstances of the armed robbery at the Abruzzi Sports Club was very high indeed. Let there be no mistake about it, this was a very serious crime which, on any view of it, warranted stern punishment. It was a planned, carefully premeditated crime carried out in a terrifying and violent manner. It was tantamount, as was observed in argument, to an act of organised crime at a high level. The way in which the innocent staff members were treated by these balaclava-clad weapon-carrying offenders was cruel in the extreme. The community would rightly regard the behaviour of the offenders towards these staff members, particularly towards Mrs Harrison, as abhorrent. The amount of money seized was very considerable and, at least so far as these respondents were concerned, the proceeds of the robbery were in part required for the purchase of drugs or to pay off drug related debts.

52 An examination of the level of criminality involved in these circumstances leads to a very powerful impression, even at first blush, that the sentences were manifestly inadequate to a substantial degree.

53 There are, upon examination, however, a number of specific errors in the sentencing process which reinforce and confirm the inadequacy of the sentences. First, one accepts the fact, as his Honour did, that the guideline in Henry could not and did not apply here. Plainly that was so. These offenders were not young, there was a considerable degree of planning; the violence was far from limited and the victims were in an especially vulnerable position. A very substantial sum of money was stolen. Further, the robbery occurred in the early hours of the morning and in effect involved the entry by collusion into an establishment which had been closed to the public. It was an “inside job” involving breach of trust. The fact that the sentences imposed were well below the lowest level in the guideline range suggested in Henry is a very clear pointer in the present matter that an error of substance has occurred in the sentencing process. One asks: how could it be so without the presence of real error?

54 Secondly, the extension of leniency in each case was attested with error arising from a misunderstanding of the paragraph in Henry referred to by the sentencing judge. It will be recalled that the his Honour had said at p 35:

“The sentences that I propose to impose and the non-parole periods may seem unduly lenient. They should not be regarded as giving any indication to the sorts of sentences that will be imposed in cases of a similar nature. The reason for this appears from what was said in the case of R v Fernando (2002 NSWCCA 28) by the Chief Justice with whom Wood CJ at CL and Kirby J agreed”.

55 This reference, arising from Fernando, to the need to temper considerations of deterrence with compassion as a basis for the leniency of the sentences was clearly a reference to the reasons underlying each respondent’s use of drugs.

56 At pages 26 and 33 of the remarks on sentence there were references in the case of each respondent to his background of drug abuse. In each case, as has been set out earlier in this decision, the learned sentencing judge stated that the offender was entitled to leniency “in accordance with para 273” of the Henry decision. It is necessary to set out the whole of para 273 where it appears at page 397 in Henry. Wood CJ at CL had said at para 273: -

“In my view the relevant principles are as follows:

(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;

(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:

(i) the impulsivity of the offence and the extent of any planning for it: cf R v Bouchard (1996) 84 A Crim R 499 at 501-502 and R v Nolan (Victorian Supreme Court, Court of Appeal, 2 December 1998, unreported);

(ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;

(iii) the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;

(c) it may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:

(i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword: eg, R v Lewis (Court of Criminal Appeal, 1 July 1992, unreported);

(ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery (cf R v Hodge (Court of Criminal Appeal, 2 November 1993, unreported) and R v Talbot ); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;

(iii) justify special consideration in the case of offenders judged to be at the "cross roads": R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394.”

57 It needs to be recalled that this passage in his Honour’s judgment comes at the end of a very detailed and careful consideration of the question as to whether the fact that an offender was addicted to drugs and committed an armed robbery to obtain money to support a drug habit was or was not a mitigating circumstance. Wood CJ at CL’s view was stated at para 270:

“It is more appropriate, in my view, to have regard to these considerations, upon an individual case basis, in which it is recognised that the offence of armed robbery remains a very serious crime, which, save in exceptional circumstances, calls for full-time imprisonment. That is not to say that, in an individual case, the fact of drug dependency of the person standing for sentence may not remain a relevant fact reflecting on the objective circumstances of the offence, and/or the subjective circumstances of the offender, and particularly on the relativity of the minimum and additional terms: Bugmy v The Queen (1990) 169 CLR 525 at 537 and R v B (1993) 68 A Crim R 547.”

58 Moreover, his Honour stated that his own view accorded with the caution offered by Gleeson CJ in R v Engert (at 68) where the Chief Justice had said: -

"It is ... erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise."

59 At para 274 his Honour said:

“To go further, and to accept the fact of drug addiction as a mitigating factor generally, would not be justified in principle. Moreover, it would involve an exercise in irresponsibility on the part of the Court, if it were understood as a message that committing the crime of armed robbery to feed a drug habit is less deserving of censure than would otherwise be the case.’

60 And at 276 his Honour said:

“In summary I see no reason to depart from the planks of punishment, retribution and rehabilitation that underlie the sentencing process generally, and that permit of individualised sentencing by reference to the objective and subjective circumstances of each case.”

61 With due respect to the sentencing judge in the present matter, he appears to have treated para 273 of Wood CJ at CL’s decision (especially para (c)(ii)) as some type of “escape clause” which, without more, permits a lenient sentence to be given where it might be said that addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that the ability to exercise appropriate judgment or choice was incomplete. In proper context, the relatively rare and unusual situations mentioned by Wood CJ at CL as examples were no more than possible subjective circumstances which might be taken into account in the limited way he suggested.

62 In my opinion, the sentencing Judge here has misunderstood what his Honour was saying and taken his Honour’s remarks completely out of context. In any event, there are many demons that drive people to addictive habits whether they be habits related to alcohol, drugs or gambling. Some of those demons are within and some are without. In almost every case addictive personalities will be driven to one degree or another by personal circumstances or history. The taking of drugs in an addictive fashion is almost always likely to involve self-medication but that cannot of itself be a mitigating factor. Moreover, in all but the rarest situations, the continued use of drugs to feed an addiction will involve personal choice and the exercise of free will. People, even those in the grip of drug addiction, must take responsibility for their own actions.

63 It cannot however be accepted that the unusual or rare circumstances under discussion in the relevant portion of the paragraph of Wood CJ at CL’s judgment applied in either of the situations pertaining to each respondent in these appeals other than in the most general way. The respondent S Y was admittedly the victim of severe torture at the age of 17 in Iran. Thereafter, he spent two years in the army during the Iran/Iraq war. He experienced difficulty in adjusting to life afterwards and had nightmares. He fled Iran in 1984 and spent seven years in Istanbul. In 1991 he came to Australia. The facts of the matter indicate however that although he was introduced to heroin while serving in the Iranian army he did not use the drug at all after this time nor while he was in Turkey for a period of seven years. He began using cannabis again only after he came to Australia and took up heroin again as late as 1994. It is plain that there was evidence to sustain the view that he was suffering from chronic post-traumatic disorder and was in a number of respects behaviourally and emotionally dysfunctional.

64 None of these matters warranted the conclusion made by his Honour at page 21 that the respondent’s drug use had been a means of self-medication to deal with the symptoms that he has experienced as a consequence of the trauma arising from his history and background. Even if it were permissible, even to a limited degree, to so describe the basis of his drug usage, there is nothing in the passage in Henry that suggests that the use of heroin as a form of self-medication to exorcise real or imagined demons is any warrant for elevating considerations of leniency above those relating to the imposition of a proper sentence reflecting appropriate measures of punishment retribution and deterrence. This is especially so in a case such as the present where the armed robbery was of a very serious and violent kind. In fact, to take the contrary view, as the sentencing Judge did, is to subvert entirely the principles of general application so carefully analysed and affirmed by Wood CJ at CL in the whole of his judgment in Henry between pages 387 and 398. It will often be the case, as observed earlier, that the use of drugs as some kind of self-medication will be present as a circumstance of drug addiction. There is not the slightest suggestion in para 273 of Henry that such a situation is to be singled out so as to entitle leniency arising out of an absence of personal responsibility.

65 In relation to the respondent KS it is true that he began to smoke cannabis at a young age when he was engaged in the war. Consumption of cannabis however has been a feature of his life since. He began to abuse heroin but not until he was a good deal older at the age of 21 when he was still in Iran. He has continued to take heroin after his arrival in Australia in 1990. He has also a history of abusing alcohol at least while he has been in Australia. As to all of this his Honour said at page 25 that K S commenced to abuse drugs and liquor in order to “escape the memories of the war, to help him cope with his life in Australia and to deal with the pain in his head”. His Honour said that the explanation that the respondent committed the present crimes in order to fund his drug addiction should be understood in the context that he abused illegal drugs “in order to self-medicate to cope with his trauma”. It was for this reason that his Honour said the respondent was entitled to leniency in accordance with para 273 of the Henry decision.

66 This statement again misunderstands, and as I have said, subverts the very principle stated by Wood CJ at CL in Henry. There is no doubt many reasons why this respondent has continued to abuse alcohol, smoke cannabis, and take heroin. The reasons are likely to be very complex and no doubt include a reference to his history and background in Iran. But such history and background, however much compassion they may elicit, cannot mean that that subjective considerations in favour of the respondent are to be elevated so as to obscure and place out of proportion the serious criminality involved in the present offence. That is, with all due respect, plainly what his Honour has done in the present matter.

67 These errors alone dictate that the Court should intervene in the present matter on the basis that the sentences imposed are manifestly inadequate.

68 I am also of the view that the learned sentencing judge erred in law in the manner in which he purported to reflect the principle of parity as between the respondents and D V. I have had the benefit of reading in draft form the judgment of Justice Howie and I agree entirely with his Honour’s views and reasons in relation to this aspect of the appeal. I agree also with Justice Howie that there was an error in relation to the discount for plea given to the respondent S Y.

69 I do not consider however, contrary to the Crown submission, that the learned sentencing judge fell into error in the manner in which he dealt with the Form 1 offences.

Re-sentencing the respondents

70 There is no need for me to repeat my views about the seriousness of the armed robbery in the present matter and the high level of criminality involved. Similarly, there is no need for me to repeat the considerable detail relating to the subjective circumstances of each respondent.

71 In my view, an appropriate head sentence for the armed robbery in the case of each respondent was, prior to discount for plea and assistance, a term of imprisonment for eight years.

72 In relation to the respondent S Y, I agree with the sentencing judge for the reasons given by him that special circumstances exist so as to vary the statutory proportion between non-parole period and the head sentence. It has been conceded by the Crown that, by reason of the assistance he has provided to enforcement agencies since May 2003, it would be appropriate to reduce any increased sentence imposed on S Y by as much as 50%. Having regard to the nature of the assistance involved, I accept that is a reasonable concession.

73 It is necessary, additionally, to have regard to the principle of double jeopardy (R v Bavadra [2000] 115 A Crim R 152)

74 In practical terms, the consequence for S Y is that, after a proper allowance for plea and assistance, and the allowance of special circumstances, the resultant term of imprisonment is such that it is appropriate, in the exercise of the Court’s discretion, to dismiss the appeal.

75 In relation to the respondent K S it is appropriate that a discount for early plea and a limited level of assistance be recognised and applied. I agree with the sentencing judge’s assessment of the low level of assistance likely to be provided in relation to evidence to be given by K S at the trial of Mr X. The resultant discount and the application of discretionary considerations, having regard to the fact that this is a Crown appeal, are sufficient to reduce the appropriate head sentence to a term of imprisonment for five years. This is especially so when regard is had to the principle of double jeopardy to which I have referred.

76 I would, for the reasons mentioned by the sentencing judge, find special circumstances in relation to K S and for the same reasons. There should be a lower than usual proportion between the non-parole period and the head sentence.

77 The practical application of these conclusions is that, in my view, K S should be re-sentenced to a term of imprisonment for five years with a non-parole period of three years expiring on 29 October 2004.

78 It remains only to deal with two arguments advanced by Mr Dhanji on behalf of K S. The first is the suggestion that the principle of parity might be offended as between the two respondents to this appeal because of the dismissal of the appeal against K S on discretionary grounds. Mr Dhanji relied upon the decision of Heydon JA in R v McIvor [2002] NSWCCA 490 at paras 10 and 11. As I read his Honour’s decision, however, it not only fails to support Mr Dhanji’s contention but is in fact authority for the very opposite proposition to that advanced by Mr Dhanji.

79 McIvor was a Crown appeal against the inadequacy of sentences passed in the District Court. The respondent and a co-offender Hernando had been sentenced in the District Court in relation to two counts of robbery in company. The sentences imposed on both on both McIvor and Herando included non-parole periods of approximately seven months and six months respectively. The Crown had brought an appeal against the inadequacy of the sentence against Hernando but had delayed a considerable time before bringing the appeal. The Court of Criminal Appeal, in the exercise of its discretion, dismissed this appeal although it was of the view that the sentence imposed on Hernando was manifestly inadequate. (R v Hernando [2002] NSWCCA 489)

80 The Crown appeal against the inadequacy of McIvor’s sentence had been, by contrast, lodged promptly. The point at issue became whether, in relation to his appeal, McIvor could identify a legitimate sense of grievance if he were sentenced to fifteen months in gaol, in circumstances where the appeal against his co-offender had been dismissed. At paras 10 and 11 Heydon JA (with whose reasoning Levine J and Carruthers AJ agreed) said: -

“It is appreciated that Lowe v R (1984) 154 CLR 606 does not automatically mean that any difference in sentences for co-offenders should mean that the higher sentence is unjust. See R v Diamond (Court of Criminal Appeal, unreported, 18 February 1993) and R v Steele (Court of Criminal Appeal, unreported, 17 April 1997). Those authorities indicate that what must be compared are appropriately lenient or low sentences with more severe sentences. If a sentence is inappropriately lenient, that is no justification for reducing a more severe sentence on a co-offender. As Brennan J said at 617, it is not the case that where there is one wrong sentence and one right sentence, the court should reduce the right sentence to the level of the wrong sentence. The more severe sentence should not be reduced to a level which is so far out of line with what is right that it is an affront to the administration of justice. But that line of authority deals with attempts by convicted persons to have their severe sentences reduced on appeal by comparison with lenient sentences on co-offenders. They do not deal directly with the present position – a question of whether a sentence on one co-offender should be raised while the identical sentence on another co-offender remains unchanged. In that type of circumstance, illustrated by the present case, questions of justifiable grievance arising by reason of a move from parity to a lack of parity have a different quality.
Though McIvor cannot rely on the factor of delay in his particular case to any effective extent, it would be likely to excite a sense of grievance in McIvor if his sentences were increased while those imposed on his co-offender remained the same. That sense of grievance would be justifiable, because the difference would not depend on anything in the objective circumstances of the crimes or in the subjective circumstances of each co-offender's background. This legitimate sense of grievance would be likely to generate a bitter resentment antithetical to the prospects of avoiding recidivism. From this point of view McIvor is perhaps even more fortunate than Hernando, for not only did he share the same sentencing judge, he has been able to take account of a fact which is not peculiar to his own position, namely that, assuming that there were appellable errors in the sentencing judge's approaches in the two cases, Hernando's sentence is not to be changed by reason of the adventitious circumstance of the Crown's gross delay.” [emphasis added]

81 There is no principle that would justify a legitimate sense of grievance on the part of K S in the present matter. This is because the difference between the way this Court proposes to deal with each appeal arises precisely because of the very different circumstances now existing in relation to each respondent. On the one hand, there is the respondent S Y who has in recent times provided extremely valuable assistance to an investigating agency in relation to the investigation of a very serious crime. On the other hand, there is the respondent K S who is not in that position at all. This marked difference between the two respondents is essentially why no legitimate sense of grievance can arise so as to offend the parity principle.

82 The final matter may be disposed of briefly. It is true that K S does not, and will not, have access to the confidential material which has revealed to the Court the assistance that has been given to the investigating authority by S Y. In the nature of things, that must remain the situation. In my view, this does not give rise to any discretionary matter which would warrant or entitle this Court from refraining to increase the sentence which otherwise considers is appropriate to impose upon the respondent K S.

83 Accordingly, the orders I propose are: -

1. In the case of the respondent S Y, dismiss the Crown appeal.

2. In the case of the respondent K S: -

(a) The appeal by the Crown is allowed;

(b) The sentence imposed by Sides DCJ relating to the offence of armed robbery pursuant to s 97(1) of the Crimes Act 1900 and imposed on 23 May 2003 is quashed, and in lieu thereof, -

Impose a sentence of imprisonment for five years with a non-parole period of three years. Both such periods to commence on 30 October 2001. The non-parole period is to expire on 29 October 2004.

84 HOWIE J: I have the benefit of reading the judgment of Whealy J in draft and I agree with the orders proposed and the reasons given by his Honour. I wish to comment on two matters that were raised in argument: one by the Crown and the other by the respondents.

85 The Crown submitted that Judge Sides erred in relation to the amount of discount given to the respondent SY as a result of the plea of guilty. The sentencing judge determined that the pleas were given at the earliest opportunity and justified a discount of 25 per cent. This was notwithstanding that SY did not plead guilty to the offences until 23 September 2002 after he had been committed for trial. His Honour treated these pleas as being made at the first reasonable opportunity because the Crown chose to indict the respondent with alternative counts of assaults to the charges of detain for advantage upon which the respondent had been committed for trial. There was, in my opinion, no basis for treating the plea to the armed robbery as being made at the first reasonable opportunity. A plea of guilty to that charge did not depend upon the other two charges, and the respondent could have pleaded to that offence while denying the other two offences at any time.

86 It does not always follow that a plea is entered at the first reasonable opportunity simply because the plea occurs after negotiations with the Crown once the offender has been committed for trial. Clearly there will be occasions where the nature of the bargain struck does indicate that the offender could not reasonably have been expected to plead guilty before the opportunity was presented to plead to some less serious charge. But that is not always so and it behoves the sentencing judge to look at the situation realistically in determining the value of the plea on the utilitarian basis. Nor is it the case that the same discount applies to all the offences for which the offender is to be sentenced and a proper exercise of discretion requires the judge to discriminate between the offences if it is necessary to do so in order to properly reflect the value of the pleas by the discount given.

87 Further, in R v Dib [2003] NSWCCA 117 this Court held that the fact that the plea to the lesser offence is offered at the first reasonable opportunity does not automatically mean that a full discount for the plea should be given. Hodgson JA, with whom Barr J agreed, stated:

5 If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.

6. This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender’s fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.

88 In my opinion his Honour erred in giving SY a discount of 25 per cent on the sentence for the armed robbery. It should have been no more than 15 per cent.

89 Both respondents relied upon parity with the sentence imposed upon the co-offender DV as justifying the sentences imposed upon the respondents or, in the alternative, as being a matter that this Court should take into account when determining whether to exercise its discretion in refusing to intervene to disturb the sentences.

90 Whealy J has referred to the sentence imposed upon DV and briefly the reasons given by Judge Sides for imposing a sentence that seems, on its face at least, to contravene s 23(3) of the Crimes (Sentencing Procedure) Act in that it is “unreasonably disproportionate to the nature and circumstances of the offence”. In his remarks, when sentencing the respondents, his Honour sought to compare and contrast the subjective cases of the respondent’s with that of DV. To some degree this evaluation was infected in favour of the respondents by the error that has been identified by Whealy J in respect of the sentencing judge’s reliance on what Wood CJ at CL said in R v Henry. Judge Sides also undertook the same task in respect of the objective seriousness of their participation in the robbery. While it was true that DV had breached his employer’s trust in assisting the respondents, the respondents were both involved in gratuitous violence to the victims. In the circumstances of this particular robbery it is impossible, in my view, to determine that the criminality of DV was higher than that of the respondents.

91 But the subjective features between DV, on the one hand, and the respondents, on the other, were so disparate that there was no requirement or justification for his Honour to seek to maintain parity between them. Of course the most important distinguishing feature between DV and the respondents was that of assistance to the authorities, including his confessions and his identification of the respondents and Mr X to the investigating police shortly after his arrest. But that was not the only factor.

92 The judge’s remarks on sentencing DV are before the Court. He described DV as playing “a critical role in relation to the arrest and charging of the co-offenders”. His Honour was also of the view that, without DV’s preparedness to give evidence against Mr X, “it was highly unlikely that the Crown case would even be in a position to proceed”. Judge Sides concluded that DV had a compelling subjective case but that it was not alone sufficient to justify anything but a full-time gaol sentence. His Honour believed that DV would be highly vulnerable in custody both by reason of his personality and because of the assistance he had given to police. Judge Sides thus concluded it was a case where exceptional circumstances had been made out permitting a sentence other than full-time custody to be imposed. It seems inescapable from a fair reading of the remarks that the sentence of three years was chosen because it was the longest sentence that could be imposed without requiring DV to serve full-time imprisonment.

93 Whether that sentence was erroneous is not now in issue. There is, however, a strong foundation for an argument that it was, both by reason of the sentence imposed and the manner in which his Honour determined it. But there was no Crown appeal. Judge Sides, therefore, was entitled, when sentencing the respondents, to conclude that such a sentence was appropriate in the case of DV. But his Honour was not entitled to assume that a sentence of three years otherwise represented a proper reflection of the objective circumstances of the offence. His Honour could not reason that a sentence of three years was an appropriate sentence to impose upon the respondents by seeking to achieve parity with that imposed upon DV. The sentence imposed on DV had little, or no, relevance to the task of sentencing the respondents. In particular, DV’s sentence did not represent some benchmark upon which the appropriate sentences to be imposed upon the respondents had to be assessed.

94 Similarly the sentence imposed upon DV should not cause this Court to stay its hand. There could be no justifiable sense of grievance arising from the fact that, if the appeal were allowed, the respondents would be sentenced appropriately to the circumstances of their particular cases having regard to their criminality and their subjective matters. In any event, the errors identified by Whealy J were so egregious and the sentences so inadequate to reflect the objective seriousness of the offences that, subject to any other consideration, it would be an affront to the proper administration of criminal justice to allow them to remain.

95 There is authority that this Court is not required to achieve parity with an erroneous sentence, if to do so would amount to the imposition of another erroneous sentence: R v Diamond (NSWCCA, unreported, 18 February 193); R v Isumander and Siregar [2002] NSWCCA 447. Whether those authorities also apply to a Crown appeal, such that this Court would not allow an erroneous sentence to stand on the basis of parity with another erroneous sentence does not have to be determined. But clearly the failure of the Crown to appeal an erroneous sentence on a co-offender would be a matter tending to suggest that the appeal should be dismissed on discretionary grounds. Were it necessary to consider that matter in the present case, it would not, in my view, require that the appeal against the respondents be dismissed.

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Last Modified: 10/21/2003