R v Syed, Islam, Mahmood

[2008] NSWCCA 37

New South Wales
Court of Criminal Appeal

CITATION:	R v SYED, ISLAM, MAHMOOD [2008] NSWCCA 37
HEARING DATE(S):	26 September 2007
JUDGMENT DATE:	4 March 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Hulme J at 2; Harrison J at 96
DECISION:	Dismiss each of the appeals against conviction. Dismiss each Crown appeal.
PARTIES:	Regina Samiul SYED Naimul ISLAM Hassan MAHMOOD
FILE NUMBER(S):	CCA 2007/3244; 2007/3055; 2007/3245; 2007/3026; 2007/5193; 2007/3246
COUNSEL:	Crown: Ms Woodburne Syed: Mr Byrne SC; Mr Brasch Islam: Mr Thangaraj Mahmood: Mr Smith
SOLICITORS:	Crown: S Kavanagh (DPP) Syed: Carters Solicitors Islam: Nyman Gibson Stewart Mahmood: George Sten & Co
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0099 06/11/0234 06/11/0245
LOWER COURT JUDICIAL OFFICER:	Phegan DCJ

- 23 -

2007/3244; 2007/3055
2007/3245; 2007/3026
2007/5193; 2007/3246

McCLELLAN CJ AT CL
HULME J
HARRISON J

Tuesday, 4 March 2008

Naimul ISLAM v REGINA

Hassan MAHMOOD v REGINA

Samiul SYED v REGINA

Judgment

1 MCCLELLAN CJ AT CL: I agree with Hulme J.

2 HULME J: On 18 October 2006 each of the Appellants was found guilty by a jury. In the case of Mahmood and Samiul Syed the offence for which they had stood trial was that on 17 August 2005 “they then being in company with each other, SS and HR did rob Ngai Liu of property namely a Nokia 8310 mobile phone.” The charge against Naimul Islam was that “before the offence was committed as alleged in count 1 by the persons mentioned, he did move, procure, aid and counsel those persons to commit the offence in count 1”. SS and HR were juveniles at the time of the suggested offences and, given the prohibition on the publication of their names imposed by s11 of the Children (Criminal Proceedings) Act, they will be referred to by those initials.

3 On 24 May 2007 Judge Phegan sentenced the offenders as follows:-

1. In the case of Samiul Syed, imprisonment for a non-parole period of 1 year and 3 months commencing on 24 May 2007 together with a further period of imprisonment for 7 months, the sentence being suspended for its term on condition that the offender be of good behaviour and appear for sentence if called upon.
2. In the case of Mahmood, imprisonment for a non-parole period of 1 year and 3 months commencing on 24 May 2007 together with a further period of imprisonment for 5 months, the sentence being suspended for its term on condition that the offender be of good behaviour and appear for sentence if called upon.
3. In the case of Islam, imprisonment for a non-parole period of 10 months commencing on 24 May 2007 together with a further period of imprisonment for 5 months, the sentence being suspended for its term on condition that the offender be of good behaviour and appear for sentence if called upon.

4 (For completeness I should add that there were also other conditions of the bonds but to these it is unnecessary to refer.)

5 All three persons have appealed against their convictions and the Crown has appealed against the sentences imposed.

6 Islam’s sole ground of appeal was:-

“1. His Honour erred in failing to exercise his discretion under s138 of the Evidence Act 1995 to not admit into evidence the electronically recorded interview of (SS) tendered (exhibit U) by the Crown…”

7 Mahmood’s grounds of appeal were:-

(i) That the trial Judge erred in admitting into evidence the interview between (SS) and the Police;
(ii) That the trial Judge erred in failing to adequately direct the jury concerning the unreliability of the evidence of (SS) pursuant to s165 Evidence Act 1995;
(iii) The trial Judge erred in refusing to permit (Mahmood) to adduce evidence of a prior consistent statement after it had been suggested to (him) in cross-examination that he had fabricated part of his evidence.

8 Syed’s grounds of appeal were:-

(i) The learned trial judge erred in admitting into evidence the contents of an electronically recorded interview between (SS) and investigating police.
(ii) The directions given by the learned trial judge as to the potential unreliability of the evidence in the recorded interview referred to in (the immediately preceding) ground… were inadequate.

9 The appeal was heard on 26 September 2007. During the hearing of the appeal, counsel for Islam said that he wished to rely on Mahmood’s second ground of appeal. On 4 October 2007 Islam sought to supplement his ground of appeal by, firstly, relying also on Section 137 of the Evidence Act and adding a further ground:-

“The verdict of the jury was unreasonable and cannot be supported having regard to the evidence.”

10 The documents setting out these matters said that Islam relied on the written and oral submissions already made and contained the submission that “further written submission handed to the Court on the last occasion by the Crown, along with the ERISP, demonstrated that the evidence against (Islam) was insufficient”.

11 In a letter also of 4 October to the Registrar of the Court the Crown indicated that it did not object to Islam relying on the second of Syed’s grounds but objected to the filing of the additional ground and opposed leave – more accurately an extension of time - required by Rule 25A of the Criminal Appeal Rules, being granted by the Court. The letter went on to say that if leave were granted the Crown would make a submission in response. Without making any decision on the leave issue the Court wrote to the Crown inviting such a submission and one was received.

12 Evidence given in the Appellant’s trial included the following. At about 8.20pm on 17 August 2005, Ngai Liu was on the footpath of Willis Street, Kensington, a little to the north of the north-western corner of the intersection of Willis Street and Middle Street. He was walking south towards the intersection. He was approached by a man who asked “What’s the time, buddy?”. While Mr Liu was occupied in taking out his mobile phone to answer this question the man wrapped his right arm against Mr Liu’s neck, displayed an opened fold-out knife some 10cm from Mr Liu’s face and said words to the effect, “Give me everything you’ve got. I’ve got a knife and give me your wallet.” The man was black and was wearing “a white or light coloured athletic top and similarly athletic pants which covered his build.”

13 According to Mr Liu he initially froze but then struggled loose with the result he was facing the man, about one metre away. Mr Liu then observed three other men on or just off the diagonally opposite corner of the intersection walking briskly in his direction. These men wore similar clothes to the person who had approached Mr Liu, i.e. an athletic top and pants but Mr Liu could not recall the colour of these. They arrived on or immediately adjacent to the north-western corner, some 5 metres from Mr Liu at which stage another person, later identified as Tony Ward called out from his fence-line some 10 metres further to the north of Mr Liu, “What’s happening here?”

14 Mr Liu perceived an opportunity to escape. He crouched down, placed his mobile phone on the ground, called out “Help” and ran to Mr Ward and into Mr Ward’s premises.

15 Shortly after Mr Liu had freed himself from the original offender’s embrace he heard someone, probably that man, repeat a number of times “Give me your wallet. Give me everything you’ve got.” Mr Liu described this person as black and his clothing as white or light coloured athletic top and athletic pants.

16 There was no challenge during the cross examination of Mr Liu to the substance of these matters.

17 Mr Ward gave evidence of his observation of events from, in his estimate, some 20 metres away. Although he did not give evidence of all of the matters of detail to which Mr Liu had referred, Mr Ward provided corroboration of the incident. The only significant inconsistency between his evidence and that of Mr Liu was that Mr Ward on seeing the group had the impression – his evidence suggests reasonably firmly – that the group of persons was in a huddle, 3 or 4 surrounding Mr Liu, that when he called the group opened and Mr Liu then came out of the centre of the huddle.

18 Immediately on Mr Liu’s arrival at Mr Ward’s premises, a phone call was made to 000 and police arrived shortly thereafter. At the time of their arrival Islam was seen to be sitting in the driver’s seat of a Nissan Pulsar motor vehicle parked some 40 metres away from the intersection. As a police car passed, he was observed to sink down in to the seat. HR and Mahmood were observed by police walking along the southern footpath of Middle Street before turning into another street, Forsyth Street some 2 blocks from where the attack on Mr Liu had occurred. HR was observed to be wearing a thick white jacket and track-suit pants. Mahmood was wearing a white jacket, blue jeans and a dark baseball cap. HR was observed by a Sergeant Callaghan to move toward a small brick front fence. Sergeant Callaghan approached the two and on request they emptied their pockets. Shortly thereafter a folded flick knife was found over the fence. The knife was the subject of testing for DNA. HR was found to have the same DNA profile as the major component of that found on the knife, a profile that is expected to occur in fewer than 1 in 10 billion individuals.

19 Sometime later while Constables Howard and Gibson were conducting surveillance of the Nissan Pulsar two males were seen to approach it, look in and walk on. Five minutes later the same two persons approached it again, looked in it several times and again walked past. These persons were the Appellant Syed and SS. The police officers approached these two. Samiul Syed was in possession of a Nokia mobile phone, identified by Mr Liu in evidence which was unchallenged as his. There was other evidence to similar effect.

20 In addition to the foregoing, the Crown relied extensively on evidence given by or tendered through SS who was called by the Crown. This witness acknowledged being arrested on the evening of 17 August at Kingsford saying he had arrived there in a car of his brother-in-law Islam, others in the car being HR, Mahmood and Syed. When questioned further about some aspects of the occasion SS purported to have an extensive lack of recollection of the events of the night. The Crown was then given leave under s38 of the Evidence Act to cross-examine SS. During this cross-examination the record of an ERISP conducted between police and SS and which commenced at about 7.00am on the morning of 18 August and referred to in the first ground of appeal was admitted into evidence.

21 In the course of the interview, SS said that he, HR and the Appellants were in a car, initially with the intention of visiting one of SS’s mates at Mascot. Instead of going to Mascot, the group drove to Kingsford, driving around. Someone brought up the idea of rolling (a victim). At some stage everyone other than the driver jumped out of the car, walked up to some person who started screaming and ran off when “we tried to grab him”. No property was obtained from this person. The group continued walking and saw another person who from SS’s description of events was clearly Mr Liu. Although not expressed as clearly as it might be, the tenor of his remarks in the interview was that all of the group tried to grab this second victim although no-one actually succeeded. That victim dropped his phone and one of the group, probably Syed, picked it up and all walked off.

22 Otherwise, and except insofar as lies one or other of them told while being interviewed by police might be regarded as incriminating, the evidence implicating the Appellants in the offence committed against Mr Lieu was very limited.

Ground 1 – All Appellants.

23 Opposition to the admission of the record of SS’s ERISP was based principally on s138 of the Evidence Act. So far as is presently relevant that section provides:-

(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(3) Without limiting the matters that the court may take into account under subsection (1) it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceedings; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) …

24 The impropriety or contravention of law relied on arose in the context of statutory provisions designed for the protection of juveniles and others while in custody and/or being questioned by police officers. A detailed exposition of these provisions is not necessary in this case. It is sufficient for present purposes to record the following.

25 At the relevant time Part 10A of the Crimes Act provided that a police officer could detain a person who was under arrest for an investigation period. That period was one which was “reasonable having regard to all the circumstances” but limited to 4 hours unless extended by a “detention warrant”. There was provision to the effect that the time involved in certain steps or circumstances, including the time required for a variety of persons to attend and consult with the person detained was not to be counted. The Part also required that as soon as practical after a person detained came into custody at a police station the custody manager of the station orally and in writing caution the person that he did not have to say anything, inform him of his right to communicate with a parent, friend or other person and seek the attendance of such a person and, if the detainee wishes to exercise these rights, assist him to do so. The custody manager was also required to provide a written summary of the provisions of Part 10A.

26 Section 13 of the Children (Criminal Proceedings) Act rendered inadmissible a statement to a police officer made by a juvenile who is a party to criminal proceedings unless certain events, directed to the protection of the juvenile, occurred. These steps include the presence of a person responsible for the child or other adult. It is clear that such a person is one whose attendance is liable to involve the passage of time not counted under Part 10A.

27 SS was arrested at 9.55pm on 17 August 2005 and arrived at the Maroubra Police Station at 10.30pm. At 2.35am on the following day a detention warrant for a further period of 4 hours was obtained from a magistrate. The interview of SS commenced at 7.02am and concluded at 7.46. During the period after 2.35am the attendance of a Father Challenor was obtained to the intent that he would act as a support person for SS, the latter having been born on 25 January 1988 and thus aged only about 17½ at the time.

28 There was no evidence which precisely quantified the time taken in this regard. At the trial, counsel for the Appellants submitted this would have been no more than 20 minutes but his Honour concluded that at least 30 minutes would have been required for that person to make his way to the police station. His Honour seems to have been in some doubt whether the time between Father Challenor’s arrival and the commencement of the interview should be taken into account also as “time out”. Father Challenor’s evidence as to how much this extended his Honour’s 30 minutes allowance was vague but it would not seem to have been more than 5 or 10 minutes or so.

29 It seems clear, as his Honour concluded, at least part of the interview with SS was outside the 4 hour limit. Indeed, only a small proportion of the interview was within the 4 hours plus “time out” after 2.35 am. That said, it is also to be noted that his Honour accepted that relevant to the significance of this was that there had been at the relevant time limited resources available to the officer in charge, Detective Senior Constable Hogan, and that the latter had acted in good faith in carrying out the interview in the way he did. His Honour also said that he did not find in the course of the interview any evidence of oppressive, dishonest or improper conduct on the part of the interviewing officers.

30 Turning to other aspects of Part 10A, his Honour concluded that the requirements of Part 10A of the Crimes Act (requiring police officers to inform arrested persons of their rights) had been complied with in the letter of the law although not in the spirit. In that latter respect, his Honour concluded that the custody manager had not gone beyond what was strictly required of him and, for example, ensure that SS fully understood what he was told.

31 His Honour also concluded that there was no time prior to the formal interview when SS was given an opportunity to speak directly with Father Challenor in the absence of police officers and that Father Challenor appears to have adopted a reactive rather than proactive role. In that the manner in which the interview was conducted did not inspire concern, Father Challenor was silent throughout. Although Father Challenor had no obligation to do so, he did not take any opportunity to discuss with SS the latter’s rights.

32 In deciding to admit the ERISP his Honour also took into account observations he had made concerning SS. His Honour remarked that SS should not be regarded as a “totally naive and susceptible young person”, was fairly “street wise”, not totally overawed by the experience of being arrested, and in the course of the interview appeared to be reasonably relaxed and had no appearance of being overborne. Observing that although SS might have had an opportunity for a small amount of sleep, he would have been very tired by the time the interview started, his Honour concluded that there was nothing in the interview itself to generate any concern.

33 In arriving at his decision to admit the ERISP, his Honour described the breach of the time limit as “very much a technical breach”. He also remarked that had SS been an accused person he would have excluded the document “because of the overriding need to protect an accused person against tainted evidence”. (SS had in fact been tried for his involvement in the events the subject of the charges against the Appellants and had been acquitted. He was also the recipient of a certificate under s128 of the Evidence Act.)

34 In challenging the exercise by Phegan DCJ of his discretion or judgment under s138, attention was drawn to its rationale in seeking to balance

“The conflict between the public interest in admitting reliable evidence (and thereby convicting the guilty) and the public interest in vindicating individual rights and deterring misconduct and maintaining the legitimacy of the judicial system.” ALRC 26, Vol 1, para 964.

35 It was to the distinction his Honour drew between a situation where SS was an accused and where others were that the attack under this ground was directed. It was submitted that his Honour erred in making this distinction, the contention being that once the conclusion was drawn that in the former situation the ERISP should be excluded, then it should have been in the Appellant’s trial. According to the submission, the distinction was irrelevant: Indeed admitting the ERISP in the case of the Appellants would be more unfair than if it was admitted against SS as the former were not involved in its making and would have to seek to explain what SS meant in circumstances where SS was less than co-operative when giving evidence.

36 Attention was also directed to the terms of s90 of the Evidence Act which entitles a Court to refuse to admit evidence adduced by the prosecution if “having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence”, and remarks of Howie J in R v Sophear Em [2003] NSWCCA 374 at [74]:-

“The discretion under s 138 is similar to that which was described in Swaffield as the public policy discretion at common law. Of course, there is a significant difference between the discretion under s 138 and that at common law: the section requires that the Crown persuade the court to admit evidence that was improperly or unlawfully obtained. But just as at common law, the public policy discretion was distinct and separate from the unfairness discretion, so the discretion to admit evidence under s 138 is a distinct and separate discretion from that arising under s 90. The two discretions may overlap but they are not synonymous. Section 138 is not, in its terms at least, concerned with the court ensuring a fair trial for the accused. Certainly that is not a paramount consideration when exercising the discretion. The discretion exercised under s 138(1) seeks to balance two competing public interests, neither of which directly involves securing a fair trial for the accused.”

37 I do not agree with the criticism of his Honour’s decision. Considerations that arise under ss 90 and 138 are not mutually exclusive. The provisions of the Crimes Act and the Children (Criminal Proceedings) Act to which reference has been made have or include as their purposes the conferring on persons detained rights, protections or privileges. In large part those rights, protections or privileges are with a view to furthering the interests of persons detained or questioned in the event of any prosecution of them in respect of the matters leading to the detention or questioning. The fact that, for example because a prosecution is of others, those interests are not as risk is relevant both to the desirability and the undesirability of which s138(1) speaks.

38 Accordingly, I see no error in his Honour’s decision under s138 of the Evidence Act that the desirability of admitting the evidence outweighed the undesirability of doing so.

Islam’s Application to rely on s137

39 The terms of the first grounds of appeal of Mahmood and Syed are wide enough to encompass reliance on s137 and Islam should be allowed to rely on this section also. It provides:-

“In a criminal proceeding, the court must refuse to admit evidence adduced by the Prosecutor if its probative value is outweighed by the danger of unfair prejudice to the Defendant.”

40 The probative value of SS’s ERISP was high. It was made very soon after the events to which it referred. Although in the interview SS was undoubtedly being somewhat coy in his answers, he essentially admitted the involvement of the offenders in the attack on Mr Liu. He did not seek to exonerate himself at the expense of the others and in the circumstances as they then existed, it is in the highest degree unlikely that he would have simply made up everyone’s involvement in events, in particular offences, which had not in fact occurred. In so concluding, I do not ignore evidence given by SS to the effect that he said what he had to say in order to go home. There is no other evidence to support the credibility of that statement.

41 I doubt that SS’s purported lack of recollection at the time he gave evidence is relevant to a judgment as to the probative value of the ERISP as that fell to be determined at the time its admissibility was in question but even if that lack of recollection was relevant, I would still assess the value of the ERISP as high. SS’s purported lack of recollection is however clearly relevant to the question of unfair prejudice. It was submitted on behalf of the Appellant’s that that lack of recollection hampered their ability to cross-examine SS.

42 Although there is some truth in so putting the matter, there is another side to the situation. Given what SS had said in his interview, there is at least a theoretical possibility that a good recollection might have led him to give evidence implicating the Applicants or alternatively strengthen the impression that he was likely to have been accurate in the ERISP. The jury were fairly in a position to judge the credibility of SS. There is no reason to think that any information or impression they gained from him was likely to put to any inappropriate use and I see no danger of unfair prejudice. Accordingly, this ground fails.

Directions re Unreliability – Mahmood & Syed (ii) (& Islam)

43 Leave under rule 4 of the Criminal Appeal Rules is necessary to rely on this ground as no objection was taken at the trial to his Honour’s directions so far as the reliability of SS was concerned. Prior to the summing up, a request was made that a warning be given under Section 165 on two matters, viz that SS had been cross examined under Section 38 and also on the basis of Section 165(1)(d) which refers to “evidence given in a criminal proceeding by a witness… who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding.

44 His Honour referred to both of these matters and emphasised on a number of occasions the potential unreliability of SS.

45 In fact, while in the witness box, SS gave evidence supportive of the Appellants. He said that he made up most of the information he had given to the police. When he did give an account of events he said that HR walked to where a man was screaming, Syed followed and then so did Mahmood and himself. The reason was curiosity. He and Mahmood then ran off because they saw HR and Syed do so. In these circumstances one can well understand counsel seeing appreciable disadvantages in having too much emphasis placed on SS’s unreliability. I see no reason why Mahmood and SS should not be held to the conduct of their counsel at the trial and I would refuse leave to rely on this ground.

Refusal to admit a prior consistent statement

46 The background to this ground of appeal lies in the fact that when Mahmood was interviewed by the police in the hours following the assault on Mr Liu he told the police that the car in which he had been travelling had stopped well before the robbery, that he had gone for a walk, and that it was during that walk that he came upon the events comprising the robbery. In evidence in chief he said that this account was untrue, that he had in fact not gone for a walk but had been asleep in the car and awoke to find it was at the location where the robbery was occurring.

47 He was cross-examined about the differences in these accounts in the course of which it was put to him that he was making up the story about going to sleep. However the Crown did not suggest that this occurred at any time more confined than between making a statement to the police and giving evidence. Prior to re-examination, Counsel for Mahmood indicated that she wished to adduce evidence from him when it was that after the ERISP he first told anyone about falling asleep, adding that she anticipated calling other evidence on the topic. In an Affidavit filed in the appeal, Mahmood’s solicitor said that on 8 December 2005 Mahmood had told her of falling asleep and some time later, after Mahmood was committed for trial, confirmed that account with his solicitor and Counsel.

48 Judge Phegan declined to allow the evidence foreshadowed to be given during the trial saying that it could be of no assistance in meeting the possible inference of what his Honour referred to as recent invention. It is I think appropriate to also mention that shortly prior to his Honour’s formal ruling he pointed out to Counsel that the Crown’s contention on the issue was that Mahmood may have made up his second account at any time after his ERISP including the next day, the moment he entered the witness box or any time in between.

49 Although evidence that Mahmood had, on 8 December 1995, told his solicitor of falling asleep would certainly go to rebut a suggestion of invention after that time it could say nothing about on the topic of invention at any earlier date. The Crown, as has been said, imposed no limits as to the time of the invention suggested.

50 The admissibility of the evidence the subject of this ground depended on s 108 of the Evidence Act, one of the requirements of which is that the court gives leave to adduce the evidence of a prior consistent statement. Given that what was sought to be admitted was not capable of rebutting the Crown’s suggestion of invention in the breadth in which that suggestion had been made, it has not been established that his Honour erred. This ground fails.

Islam’s Application re “that the verdict was unreasonable”

51 Mr Lieu gave evidence that the attack on him occurred shortly after about 8.20 pm. There was other evidence supporting this evidence as to the time of the attack. There was evidence that the time at which Islam was observed by police officers sitting in a car some 40 metres from the intersection where Mr Liu was attacked and had sunk down in the seat as the police car passed occurred within a few minutes of 8.37.

52 Islam was spoken to by police officers shortly thereafter, arrested, and later participated in an ERISP. In the course of that ERISP:-

He said he had dropped his mates off near the Kingsford Shopping Centre; – Q125 – AB 1447
When asked how many mates there were he said, “Two, three. Do I have to answer that one?”; – Q118 – AB 1449
He said, “I know what happened tonight” – Q184 - AB 1442.
Asked what he had heard or what he knew about it, Islam replied “Look, Can we just not talk about that “ – Q186 – AB 1445
Later when asked whether he was involved in the robbery, he responded that he was not and denied knowing that his friends were to be involved in one– AB 982

53 Islam also gave evidence. During it he acknowledged that his statement to the effect that he had dropped his friends off at the Kingsford Shopping Centre was a lie and there might have been 2 or 3 other lies. He said that his account of dropping friends off was untrue and that he lied to the police because police had told him that there had been something wrong in the street and he had tried to distance himself from that situation. Being nervous at the time he had also lied about the number of friends. He did not want to dob anyone in – AB 1451. His explanation for his statement to the effect he knew what had happened was that he had been informed by a police officer that there had been a robbery. He agreed that he had not thought during the interview to say to police that all he knew was what police had told him – AB 1451

54 He gave evidence that what in fact happened was that the group were in the vicinity in consequence of a decision to visit a friend of SS at Mascot and a decision to have something to eat at a restaurant near where the incident occurred. He said that while driving slowly near that restaurant the interior light of the car went on and HR got out without explanation. After driving a short distance further Islam stopped. All the others left also, without conversation. He had no idea why they had left. Their actions made him angry and he drove off. Then he received a phone call from Samiul asking him to return. He did so, parking where the police saw him. He claimed that he had received the call from Samiul a couple of minutes after driving off – AB 1454

55 There was evidence that phones of Islam had rung often while he was in the vicinity of police officers and, from phone records, that the earliest of a number of calls from SS to Islam was 8.55pm.

56 The above account of the evidence makes it unsurprising that the jury did not accept Islam’s account of what had occurred. Aspects of it are inherently improbable. Furthermore, the jury were entitled to accept as truthful his statement that he knew what happened and to reject his statement that his source of information was only police officers. They were also entitled to reject his account of a phone call from SS as an explanation for his waiting in the area and to regard this as a deliberate lie told out of a consciousness of guilt. Accordingly, there was evidence upon which the jury were entitled to convict and the verdict was not unreasonable.

57 It follows from what I have said that all grounds of appeal against convictions fail.

Sentence

58 The matters relied on by the Crown in support of its contention that the sentences imposed were manifestly inadequate fell principally into 2 categories. It was submitted that Judge Phegan made a number of errors in his assessment of the gravity of the offences and offending and secondly, that the sentences imposed gave insufficient recognition to the guideline judgment of this Court in R v Henry (1999) 46 NSWLR 346.

59 In the course of his remarks, his Honour said:-

1. “… the only evidence which was given of a kind which implicated the three offenders in the commission of the respective offences was in the form of an ERISP interview which had been conducted by police officers with SS.”
2. (Referring to the first unsuccessful attempt on an earlier victim) “that intervening incident, to some extent, complicates the account insofar as it can be accepted as fact by the jury beyond reasonable doubt because it then becomes difficult to reconcile it in any way whatsoever with the evidence that was given particularly by the offenders in the course of the trial. For that reason I propose to put that intervening event aside and to simply go directly to the commission of the offence.”
3. “The mobile phone remained in (Mr Liu’s) hand until he dropped it as he released himself from (HR’s) grip. It was Samiul Syed, who had subsequently, on his own admission, picked up the phone.”
4. After referring to the offender’s fleeing away from the direction taken by Mr Liu in response to Mr Ward’s call “it is not necessary to record the facts that followed from that point because the offence had been committed.”

60 Later when considering the situation of Mr Islam, his Honour referred to some evidence of the latter to the effect that after the other occupants had left the vehicle he formed the view they were no longer interested in his chauffeuring services and initially decided to leave the scene and drive home. His evidence was that he had then had second thoughts about that and returned to the vicinity of the area where he had left the other four. His Honour continued:-

“The jury must have been satisfied beyond reasonable doubt that Mr Islam was aware of the intended purpose of the occupants of the vehicle when they left the vehicle and that his decision, even if it was delayed, to return to the vicinity of the scene was for the purpose of providing an escape in the vehicle following the commission of the offence… It would only be on such finding that they could have found Mr Islam guilty of the offence of which he was charged.”

61 His Honour found in the fact that it was Samiul Syed’s decision to pick up the telephone and remove it, a distinction between his and Mahmood’s criminality. His Honour observed that Islam not having followed the expressed intention to rob by leaving the vehicle and approaching the victim he at no stage contributed to the apprehension and anxiety experienced by the latter, adding that these matters distinguished Islam’s involvement from that of the others.

62 The first of the passages quoted ignores Mr Liu’s evidence that he was threatened with a folding knife with a smooth silver blade about 10 cm long, and a similar knife was found by police officers on the far side of a fence which HR had approached after apparently seeing police officers in the vicinity. The inescapable inference is that that knife carried HR’s DNA. The passage ignores the fact that Mahmood was in company with HR when seen by police and also ignores the evidence that Samiul Syed was found in possession of Mr Liu’s phone.

63 It is not clear what his Honour met by his reference to the “intervening incident” and the acceptance of a fact by a jury in the first sentence of the second passage. None of the ultimate issues which the jury had to decide involved any determination by them concerning what SS described as the first unsuccessful attack on another victim. Furthermore, the fact of inconsistency between SS’s account in this regard and the evidence given by the offenders provided no reason in itself for his Honour to “put that intervening event aside”. The evidence of that intervening event was relevant to a determination of the subjective criminality of the offenders. If their attack on Mr Liu was a second attack, their conduct demonstrates greater premeditation and determination than might be the appropriate inference from only one such attack.

64 The inconsistency between SS on the one hand and the Appellants on the other, concerning what SS described as this first unsuccessful attack required his Honour not to put the topic aside but to make a finding for or against the Appellants as to whether it had occurred.

65 The circumstances are not such that the issue can properly be remitted to the District Court for determination so this Court must seek to make a determination on the topic. In circumstances where this Court has not seen the witnesses on a controversial issue of fact, that is of course commonly a difficult task particularly when the Court does not have the benefit of findings of a trial or sentencing judge on issues of credibility. However, there are some features of this case which lead me to the view that I can be satisfied beyond reasonable doubt that the event to which SS referred did in fact occur.

66 In his ERISP, while undoubtedly being somewhat coy in his answers, SS essentially admitted the involvement of the offenders in the attack on Mr Liu. Looking at the totality of what he said, I find it inconceivable that he would have simply made up everyone’s involvement in events, in particular offences, which had not in fact occurred. One cannot read his evidence in the trial without concluding that most of it was deliberately untrue, no doubt to help his friends and his explanation in the witness box of having made up most of what he had told the police in his ERISP to “get out of there” is inherently unlikely and, given the general tenor of his evidence, an explanation I would unhesitatingly reject.

67 The Appellants’ denials of any involvement in the offending do not sit happily with the evidence of Messrs Liu and Ward and they were clearly rejected, beyond reasonable doubt, by the jury.

68 His Honour’s reference to Samiul Syed’s picking up and removing the mobile phone as a basis for differentiation between the level of involvement and then reflecting that difference in the sentences imposed on Samiul Syed and Mahmood was not warranted. Compared with the criminality inherent in the attack on Mr Liu and the premeditation which led to it, the happenstance that as things turned out there was only one object available for stealing and that Samiul Syed rather than Mahmood picked it up pales into complete insignificance.

69 His Honour also erred in his consideration of Islam’s criminality. The charge against this offender was of being an accessory before the fact. It is a necessary inference from Islam’s conviction and the evidence in SS’s ERISP upon which that conviction was largely based that Islam knew a victim was to be “rolled” by the group. He knew that some victim was to be robbed by force or threat of force as the jury accepted to be the situation in the case of Samiul Syed and Mahmood and aided or encouraged that occurring. Even though Islam may not have known of HR’s intention to use a knife in the enterprise, and may not have imposed any apprehension and anxiety personally, it was quite wrong for his Honour to say that Islam “at no stage contributed to the apprehension and anxiety experienced by the victim”. His conviction means that he was a willing and knowing assistant.

70 There was nothing proved to have been done by Samiul Syed or Mahmood which went beyond that to which Islam agreed and sought to assist. There was accordingly, at least in the circumstances of this case, no basis upon which he should have been sentenced more leniently than the others.

71 In this Court attention was direction to his Honour’s remarks wherein he seemed to place some emphasis on Islam’s return to the scene of the offending after earlier driving off. Of themselves, those actions did not fall within the terms of the charge of being an accessory before the fact although, of course, that is not to say that, together with other evidence, do not contribute to proving the offence charged. However, it is unnecessary that I pursue this topic.

72 Turning to the second of the Crown’s criticisms, his Honour remarked that he regarded the guidelines set out in R v Henry (1999) 46 NSWLR 346 as relevant, notwithstanding the fact that those guidelines related to a case of armed robbery, the offence committed by HR but not that charged against the Appellants here. It is of course to be noted that s97 of the Crimes Act provides that both in the case of armed robbery and robbery in company, the maximum penalty is 20 years imprisonment.

73 That guideline was to the effect that sentences for an offence having 7 characteristics specified should generally be of imprisonment for between 4 and 5 years. The 7 characteristics were:-

(i) Young offender with no or little criminal history;
(ii) Weapon like a knife, capable of killing or inflicting serious injury;
(iii) Limited degree of planning;
(iv) Limited, if any, actual violence but a real threat thereof;
(v) Victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) Small amount taken;
(vii) Plea of guilty, the significance of which is limited by a strong Crown case.

74 His Honour went on to compare and contrast the circumstances of the Appellant’s offence with those contemplated in R v Henry. Although I have difficulty with a deal of what his Honour said in this regard, it is not necessary to canvass his observations in detail. It is clear that in the case of each of the Appellants, the first, fourth, and sixth of the features contemplated in R v Henry existed. Although it is a matter of judgment I would take the view that the third did also. The Appellants were not shown to have been party to the presence of the second ingredient. As expressed in the guideline, the fifth ingredient did not exist although these days I would regard most persons walking as Mr Liu was along a street at night in Sydney as vulnerable to the attention of groups of youths.

75 The Appellants did not plead guilty, a fact which would tend, in effect, to lead to an increase in the sentence above the guideline 4 to 5 years. Because of the absence of any utilitarian value inherent in a guilty plea that increase could be expected to be of the order of 10% and, because of the probable absence of contrition, somewhat higher.

76 There is, however, one observation by his Honour in this area that I should repeat. It is this:-

“The element of planning, again, while I would not say that this was the ultimate extreme, it certainly, on the evidence as I understand it, is necessary to assume the jury found beyond reasonable doubt, was a case of a quite unanticipated and spontaneous response to a situation. Even if, as I have already indicated, the foundations had been laid for such an event by the earlier decision to head for the city from Minto with relatively unspecified intentions in mind, and the subsequent intention to drive the car in a somewhat aimless way through the streets of Kingsford. Those early signs set very much the context for the later decision to commit the robbery, but they were not in any real sense elements of planning in the proper sense of that term.
The object of the robbery was in the first instance unspecified and was, as it turned out, literally supplied by the victim. I do not say that in any facetious sense, but the fact is that the one item that was stolen was dropped at the scene by the victim and taken away by Mr Syed. There is no evidence of anything else being taken from the victim. I do not suggest that in any way minimises the seriousness of the offence, but it does put the facts of this case in the broader context.”

77 Given the circumstances as the jury must have found them to be these remarks are all wrong, misleading or unwarranted. Although the decision may not have been made until long after the parties left Minto, there was a decision to “roll” someone. Mr Liu was then found though not before an unsuccessful attempt on someone else. Furthermore, the fact that Mr Liu felt obliged by the conduct to the offenders to surrender his phone as the cost of avoiding something worse hardly justifies the reference “supplied by the victim” and “dropped at the scene”. The offenders sought to obtain by robbery whatever was available and succeeded. No “broader context” existed or is relevant.

Subjective Circumstances

78 I turn to the individual circumstances of each offender. Although there are a number of features common to more than one of them, it is convenient to deal with them individually.

79 Mahmood was born on 9 September 1984 and thus nearly 21 at the time of offending and 22 when sentenced. He had no prior convictions and apart from the subject offence was a person of good character. He had completed the HSC and a diploma in business advertising and had an intention to undertake a business degree at University. Since leaving school he had been in employment most of the time. He had a supportive family and a prospect of engagement to his partner.

80 Although observing that in the case of Mahmood that there was “no demonstrable remorse and no commitment to any change in behaviour that might ensure that he does not become involved in the commission of any similar offence in the future”, his Honour found that he had good prospects of rehabilitation and was unlikely to re-offend and had taken the advantage of the delay between conviction and sentence to resume a law-abiding and productive life.

81 Syed was born on 22 March 1986. He migrated to Australia from Bangladesh when he was 12. Ms Grey, the author of the pre-sentence report, recorded that Syed had had a positive and supportive upbringing and still had the support of his stable family.

82 He left school after year 10 but subsequently completed his higher school certificate at TAFE. To Ms Grey, Syed claimed to have been continuously employed since 2001 and to a forensic psychologist Mr John Taylor Syed reported that he had been employed full time for 9 months prior to his arrest. However, Ms Grey recorded that Syed’s claims in this connection were unable to be verified and that a phone conversation with one previous employer revealed Syed’s then temporary position was terminated in 2005 due to his unreliability, Syed himself reported to Ms Grey that he had suffered occasional blackouts and absenteeism from his employ as a result of alcohol consumption, Syed’s general practitioner reported that he had been consulted by Syed for a “sleep disorder – always oversleep and late for work”. Since his arrest Syed seems to have been working in a business run by his father. Syed had no previous convictions.

83 Syed’s girlfriend gave evidence on sentence saying that his offence did not fit in with his normal character which she described as “respectable, very kind, caring (and) honest”. She said they planned to marry but her family, against whose wishes she would not go, would not permit marriage in the event Syed went to gaol full time.

84 Syed had shown some measure of remorse, acknowledging the foolishness of his behaviour and some appreciation for the impact of that behaviour on the victim. There was a somewhat greater amount of evidence in favour of his rehabilitation than in the case of Mahmood and he was regarded as unlikely to re-offend.

85 Islam was born on 7 January 1986 and thus about 19½ years old at the time of the offence and 21 years old when sentenced. He had no prior convictions and apart from the subject offence of good character.

86 He had completed the HSC and completed or partially completed a diploma in accounting. There had been some expression of remorse, evidence of a commitment not to re-offend and a marginally greater amount of evidence in favour of rehabilitation than in the case of Mahmood. Since leaving school he had been engaged in full time employment of one sort or another.

Manifest inadequacy

87 The section of the Crimes Act against which the Appellants offended was s97(1). The maximum penalty for their offending was imprisonment for 20 years although it is proper to say that the sub-section also covers robbery with an offensive weapon and such an offence will commonly be worse than one of simply robbery in company. The section nevertheless provides a clear indication of how seriously the legislature views offending of the nature of theirs. The community is fairly entitled to be free from the demands of thugs.

88 There is also to my mind no doubt that robbery and like offences occur with sufficient frequency to amount to a grave imposition on the community’s law abiding citizens. While I do not ignore other factors, considerations of general deterrence required that some effective punishment be imposed on the Appellants and not simply sentences whereby, if they do no more than all citizens should do, they suffer no punishment at all. Undoubtedly, because it was not established that at any relevant time the Appellant’s knew of HR’s actual or potential use of a knife, their offences did not carry the same risk of killing or inflicting serious injury that commonly is involved in offences under s97 and which was one of the factors that led to the guideline in R v Henry. Because of this, no sentence of full-time custody was required but the sentences that were imposed were each manifestly inadequate.

Discretion in Crown Appeal

89 There remain the questions whether, even though the sentences imposed were manifestly inadequate, this Court should interfere and, if so, to what extent. In support of the proposition that the Court should dismiss the Crown appeal, attention was directed to the period which has elapsed since the offences were committed in August 2005.

90 Proceedings commenced before Judge Phegan on 26 September 2006. During the first week or so the matter proceeded on a voir dire enquiry into the admissibility of various parcels of evidence upon which the Crown wished to rely. Arraignment occurred on 3 October 2006 and, as has been said, the conviction of the Appellants occurred on 18 October 2006.

91 Following the conviction of the three, his Honour stood the matter over for mention on 15 March, 2007. From the transcript it is apparent that the reasons which inspired an adjournment of this length were firstly, the desire on the part of the 3 offenders to have pre-sentence reports prepared, an event which was anticipated to take something of the order of 6 weeks, secondly, the fact that his Honour would not be sitting in December, thirdly, that his Honour was not scheduled to sit again at Parramatta until the week commencing Monday 13 March. His Honour also observed that he was not able, at that stage to fix a date for the imposition of sentence, not having “any control over the Parramatta list”. His Honour granted bail to the Appellants despite the Crown Prosecutor saying that he was “instructed to formally oppose bail”.

92 The sentencing hearing and the imposition of sentences in fact occurred on 24 May 2007 although the records before this Court do not indicate why there was the delay between March and May.

93 The Crown appeals to this Court were lodged on 30 June. The offenders’ appeals were then filed between 17 August and 21 September and the matters were heard by this Court on 26 September. It is now 2008.

94 Given the history of the offenders other than their involvement in the offending for which they were tried, the assessments that were made as to their prospects of rehabilitation, the extent to which 2 of them would seem to have got on with their lives since their offending and the delay which has occurred, in my view little positive would be achieved by now increasing the sentences upon them and there is a significant risk of harm to the community. I would propose that the Court exercise the discretion that it has in Crown appeals to dismiss the appeals, notwithstanding the fact that the sentences imposed were manifestly inadequate.

95 Accordingly the orders I propose are:-

(i) Dismiss each of the appeals against conviction.
(ii) Dismiss each Crown appeal.

96 HARRISON J: I agree with Hulme J.

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