R v Youkhana - [2005] NSWCCA 231

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Youkhana [2005] NSWCCA 231

FILE NUMBER(S):
2005/396

HEARING DATE(S): 24/06/2005

JUDGMENT DATE: 24/06/2005

PARTIES:
Regina v John Youkhana

JUDGMENT OF: Spigelman CJ Hunt AJA Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0511

LOWER COURT JUDICIAL OFFICER: Mahoney ADCJ

COUNSEL:
D. Frearson SC - Crown
J. Doris - Applicant

SOLICITORS:
S. Kavanagh - Crown
G. Meakin - Applicant

CATCHWORDS:
Criminal Law - Sentence - Resentencing after successful appeal on less serious charge - taking into account time served - finding facts after charge bargain.

LEGISLATION CITED:
Crimes Act 1900 - ss 60(2), 60(3)(b)
Crimes (Sentencing Procedure) Act 1999 - s 44

DECISION:
1. The application for leave is granted and the appeal is allowed
2. The sentence imposed by Acting Judge Mahoney is quashed
3. In lieu the applicant is sentenced to imprisonment for 19 months. There should be a non-parole period specified of 10 months. The sentence should be taken to have commenced on 25 August 2004 and, therefore, the non-parole period expires today, 24 June 2005. The applicant is to be released to parole today. His parole is to be subject to the usual conditions as to supervision by the Probation and Parole Service.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/396
SPIEGELMAN CJ
HUNT AJA
HOWIEJ
FRIDAY 24 JUNE 2005

REGINA v John YOUKHANA

Judgment

HOWIE J: On 23 August 2004 the applicant was arraigned in the District Court on an indictment containing two charges. The first alleged that on 19 September 2001 the applicant maliciously inflicted grievous bodily harm on a police officer acting in the execution of his duty, an offence under s 60(3)(b) of the Crimes Act. The second count was in the alternative and charged that the applicant assaulted a police officer acting in the execution of his duty and by that assault occasioned him actual bodily harm. The applicant pleaded guilty to the second count and the Crown accepted that plea in full satisfaction of the indictment. The offence to which the applicant pleaded guilty is contrary to s 60(2) of the Crimes Act and carries a maximum penalty of imprisonment for 7 years.
On 12 November 2004 Acting Judge Mahoney sentenced the applicant to imprisonment for 22 months and specified a non-parole period of 16½ months expiring on 25 March 2006 the date upon which the applicant is eligible to be released to parole. The applicant seeks leave to appeal against the sentence imposed upon him.
The history of the matter is that on 12 December 2002 a jury convicted the applicant of five offences arising from an incident that occurred at Central Railway Station on 19 September 2001. Included in the offences, for which the applicant was convicted, was an offence of maliciously inflicting grievous bodily harm on a police officer (the s 60(3)(b) offence). The applicant was sentenced by Judge Sorby for five offences to a total sentence of imprisonment for 4 years to date from 12 December 2002 with an overall non-parole period of 2 years 4 months. That sentence included a period of imprisonment of 34 months with a non-parole period of 16 months to commence from 11 February 2004 that was referable to the s 60(3)(b) offence. The applicant appealed against his conviction for that offence and there was no Crown appeal against the sentence imposed.
On 6 April 2004 this Court quashed the conviction and sentence for that offence and ordered that the applicant be retried: R v Youkhana [2004] NSWCCA 87. The Court concluded that, although there was evidence to justify the conviction, there had been an error in the way the matter had been left for the jury’s consideration in the summing up. As a consequence of the order for retrial the matter came before the Judge and, as I have already indicated, the Crown effectively abandoned the more serious offence for which the applicant had been originally convicted.
There was an agreed statement of facts placed before the Judge together with a statement of the police officer, the victim of the offence, a medical report on the officer’s injuries and a record of interview with the applicant. The statement of facts was relevantly as follows:
At about 5.30 pm on Wednesday 19 September 2001 Constable Neale GORDON (who had completed his duties and in plain clothes) was waiting on platform 19 at Central Railway Station to proceed home. Constable GORDON saw a man, Donald MURPHY, attempting to board a train and the Offender apparently stopping him. Following a complaint by MURPHY to an employee of State Rail the Offender was requested to get off the train. At the time the Offender was with four other males.
After the Offender got off the train Constable GORDON saw him walk past MURPHY and punch him in the mouth and then walk towards a set of steps. Constable GORDON told the Offender he was a police officer and that he was under arrest and at the same time took hold of the Offender around the neck from behind. The Offender began pushing up against Constable GORDON in an attempt to get away. At this time the group of males who had been with the Offender approached and one of them (whom the Crown believes to be John OHANIAN) punched Constable GORDON to the left side of the face. Both Constable GORDON and the Offender fell to the ground where the Offender was pulled from the grip of Constable GORDON by one of the members of the group. During this time the Offender’s shirt was ripped from his back. The Offender and the other males ran down a set of stairs and through other parts of Central Railway (this was captured on CCTV). Descriptions of the Offender and the other males were given to police who attended the scene and photographs were downloaded from the CCTV footage. The Offender was seen on the footage displaying a large distinctive tattoo of a religious figure on the top left hand side of his back. John OHANIAN was seen on the footage as displaying a tattoo around his bicep and a ‘rats tail’ at the back of his head.
The Crown case against this Offender is that he was part of a joint criminal enterprise which was formed instantaneously and began at the point Constable GORDON took hold of the Offender and that enterprise has as its objective to do what was considered necessary to free the Offender from arrest and permit his escape.
On the 17 October 2001, just less than a month after the incident Senior Constable Scott WHITE (who had been aware of the descriptions of the males involved in the incident) saw the Offender and OHANIAN in George Street, Haymarket. They were arrested and taken to the City Central Police Station.
The Offender took part in an electronically recorded interview where he denied any knowledge of the incident. He was later charged.
INJURIES SUSTAINED BY CONSTABLE GORDON
As a result of the blow received to his face by one other offender Constable GORDON received a fracture to his left upper jaw and a damaged nerve in his left cheek. He continues to have numbness and loss of feeling in the area of his left cheek.
TIME SERVED IN CUSTODY
The Offender had been in custody serving his sentence for this matter from the 12 February 2004 until the judgment of the Court of Criminal Appeal on the 6 April 2004 being 1 month 26 days.
The applicant was aged 25 years at the date of the offence and had a criminal record dating back to 1993 for driving and street offences. In November 2002 he was sentenced for an offence of being armed with intent to commit an indictable offence and placed on a good behaviour bond. However, he was arrested shortly thereafter for the offences arising from the incident at Central Station and remanded in custody.
A pre-sentence report in evidence before the Judge stated that, since being released from custody on bail from the sentences imposed upon him by Judge Sorby, the applicant had been living at home with his mother and two siblings. He was in full-time employment as a tyre fitter and also working on weekends at a service station. The applicant had a history of drug abuse but, apart from occasional cannabis use, he had not been using drugs since his release. He indicated to the officer preparing the report that he was willing to attend counselling because of his use of cannabis. The officer reported that the offence for which he was to be sentenced occurred at a time when the applicant’s lifestyle was unstable and he was heavily involved in drugs. The applicant had acknowledged the seriousness of his behaviour and expressed regret for it. He was found to be suitable for community service and periodic detention.
The applicant had served a period of 12 months imprisonment as a result of the sentences imposed upon him by Judge Sorby for the other offences for which he had been convicted. Those sentences expired on 11 December 2003. He was released to bail following the decision of this Court to quash the conviction on 8 April 2004, he having served 56 days on account of the offence against the police officer. He was returned to custody on 8 October 2004 when he was refused bail following his plea of guilty to the second count on the indictment. He remained in custody on remand until 12 November 2004 when he was sentenced for the present matter. Notwithstanding that the applicant had been in custody since 8 October 2004, the Judge dated the sentence from 12 November 2004 but deducted the period that the applicant had been in custody on remand.
The Judge determined that an appropriate starting sentence for the offence as against a maximum penalty of 7 years was one of imprisonment for 3 years. He then reduced that sentenced by 20 per cent to allow for the plea of guilty and arrived at a sentence of 29 months. The Judge then erroneously deducted a period of six months and 1 day for the period served prior to the quashing of the conviction, that period in fact being 1 month and 26 days. From the resulting period of 23 months his Honour then deducted a period of five weeks and 3 days to represent the period on remand prior to sentencing and so derived a head sentence of 22 months. In respect of this period his Honour fixed a non-parole period of 16½ months being the statutory proportion between the non-parole period and term of the sentence prescribed by s 44 of the Crimes (Sentencing Procedure) Act.
It was quite wrong for his Honour to take into account the periods spent in custody in determining the head sentence. The period spent in custody is deducted from the whole of the sentence including the non-parole period. The difference between the approach adopted by the Judge and the correct approach becomes most obvious when there is no finding of special circumstances. In such a case, as was the position here, the offender obtains the benefit of only 75 per cent of the period served by way of a reduction in the non-parole period. In the proper approach, that is to fix the sentence and the non-parole period and then to make allowance for the period in custody the applicant gets the benefit of the whole of the period served. The mathematical problem would not have arisen had his Honour taken the course that decisions of this Court have consistently urged a sentencing judge to take: that is to back date the commencement of the sentence even if this results in the sentence being deemed to commence at a point when the offender was not in custody: see R v Newman and Simpson (2004) 145 A Crim R 361.
It should be noted immediately that the sentence imposed by Judge Sorby for the more serious offence of maliciously inflicting grievous bodily harm, taken in isolation, was less severe, insofar as the non-parole period was concerned, than the sentence imposed upon the applicant by Acting Judge Mahoney for the offence to which he pleaded guilty. The non-parole period imposed by Judge Sorby was one of 16 months yet the minimum period of imprisonment the applicant was required to serve under the sentence imposed by Acting Judge Mahoney was 16½ months. Because of the way the Judge took into account the period already served, the applicant would have served a minimum period of custody of over 19½ months before being released to parole. And this is notwithstanding that Acting Judge Mahoney was sentencing the applicant for a less serious offence than that for which Judge Sorby sentenced him. This means that, by reason of his successful appeal against conviction, the applicant is being required to serve a longer period in custody than was the case before he appealed and for a less serious offence.
This result is appropriately addressed under the third of the four grounds of appeal relied upon by the applicant. That ground of appeal states:
The learned judge failed to recognise the application of the principal of double jeopardy in the circumstances of the case.
The applicant relies upon a statement as to the principle of double jeopardy contained in the judgment of this Court in R v AEM [2002] NSWCCA 58 at 145. That statement was made in the course of considering the re-sentencing of a respondent following a successful Crown appeal. In respect of the re-sentencing of an offender after a re-trial following a successful appeal against conviction, this Court has recognised the principle of double jeopardy and sought to address it by promulgating a rule of practice to the effect that, on sentencing after a retrial, an offender should ordinarily not receive a heavier sentence than that which was imposed at the original trial. The application of that rule of practice was recently considered in R v MM (2003) 135 A Crim R 216.
It is unnecessary to once again examine the rationale for that rule of practice or its limitations. It is enough to note that the practice lays down no more than a prima facie approach to the re-sentencing of the offender and the second sentencing judge has a discretion to depart from the earlier sentence based upon that judge’s assessment of the appropriate sentence to be imposed for the offence. However, if the judge is to depart from that prima facie approach, the judge would be expected to give reasons for having done so: see R v Bedford (1986) 5 NSWLR 711 and MM at [8] to [12].
In the present case the Judge started with a sentence before discount of 3 years. That was in fact a higher sentence than that chosen by Judge Sorby. Of course the sentence imposed by Judge Sorby would have taken into account the totality of the criminality of the offences for which the applicant was then before the court. But the sentence to be imposed by Acting Judge Mahoney also had to take into account the other sentences that the applicant had already served. The sentencing exercise in which Acting Judge Mahoney was engaged differed from that performed by Judge Sorby only in ways that had to be to the applicant’s advantage, even before taking into account any subjective matters in the applicant’s favour.
In my view the whole sentencing exercise miscarried because the Judge simply did not have regard to the rule of practice discussed in MM. In the present case the prima facie approach was not simply that the applicant should not receive a heavier sentence than that originally imposed for the offence for which he had stood trial before Judge Sorby. Rather the prima facie approach should have been that the starting sentence before the discounts were applied for the plea of guilty and the period served in custody had to be manifestly less than that imposed for the offence of maliciously inflict grievous bodily harm. There is no recognition of the rule of practice in the remarks of sentence let alone any analysis of the situation in which the applicant found himself following the quashing of the conviction and the plea to the less serious offence. Nor are there any reasons advanced for fixing a starting point that was longer than the sentence imposed by Judge Sorby for the more serious offence arising from the same facts.
Because of my view that the Judge’s sentencing discretion completely miscarried it is unnecessary to deal with the remaining grounds of appeal, which are to the effect that the sentence was manifestly excessive. This Court must determine the appropriate sentence and there is in my opinion no reason for determining other than that a sentence of significantly less severity than that imposed by Judge Sorby should be the commencing point for the determination of the appropriate sentence to be imposed upon the applicant.
The Judge in determining that a starting point of imprisonment for 3 years was appropriate to reflect the objective circumstances of the offence failed in my view to appreciate that, as the applicant was to be sentenced on the basis that actual bodily harm was occasioned to the police officer, some limitation had to be imposed upon a consideration of the extent of the officer’s injury. After all the significant difference between the two charges in the indictment was the nature of the injuries inflicted upon the officer. There was no difference in the nature of the assault that caused those injuries or the applicant’s part in that assault. Yet the applicant was sentenced on precisely the same factual basis as if he had pleaded guilty to the more serious charge on the indictment.
On a number of occasions this Court has stressed that the facts and material placed before a sentencing judge, particularly after a charge bargain, must accord with the offence for which the applicant is to be sentenced and not some more serious offence: see R v Palu (2002) 134 A Crim R 174; R v Barri [2004] NSWCCA 221 and R v Falls [2004] NSWCCA 335. Otherwise there is the real risk that the sentencing judge will take into account a fact or facts that give rise to a more serious charge than that to which the applicant pleaded guilty.
In the present case the injuries relied upon by the Crown to prove actual bodily harm were exactly the same as those relied upon on the charge of infliction of grievous bodily harm. Yet some effect had to be given to the charge bargain in the factual basis upon which the applicant was to be sentenced. It was not enough simply to recognise, as the Judge did, that there was a difference in the applicable maximum penalty. That result flowed from the fact that the Crown was no longer asserting that the injuries suffered by the victim were as serious as the Crown was alleging when the charge was one of the infliction of grievous bodily harm. Of course there was a degree of sophistry in such reasoning but this is not unusual in charge bargains.
There does not seem to be any appreciation in the sentencing remarks that the Judge could not sentence the applicant as if the injuries amounted to grievous bodily harm notwithstanding that the evidence revealed that the injuries were capable of amounting to harm of that severity. Rather the sentencing remarks contain the following statements referable to the extent of the injuries:
……..Constable Gordon sustained momentary unconsciousness and injury to his nose, mouth and teeth. Detailed medical examination disclosed a slightly depressed fracture of the wall of the left maxillary sinus and associated injury to the left infraorbital nerve. The sequelae of those injuries is manifest in reduced sensation over the left cheek, lip and left maxillary teeth. This condition is permanent and irreversible.
Later the judge stated:
Based upon the medical report which is at tab 6 in exhibit A in the Crown case, it was submitted that the victim had sustained “no significant continuing injury”, but I reject that submission. A lifetime legacy of impaired sensation in a significant area of one’s body cannot be dismissed lightly.
Perhaps a more appropriate submission would have been in terms that the Judge had to treat the injuries as if there were no significant continuing injury because to do otherwise would punish the applicant for a more serious offence.
The basis upon which the applicant was to be sentenced was that he was criminally responsible for the act of the co-offender who struck the police officer and inflicted the injury upon him on the basis of an instantaneously formed joint enterprise between that offender and the applicant to do whatever was necessary to secure the release of the applicant from the custody of the police officer. All that the applicant had done before the blow was struck was to push against the police officer in order to get away. On that basis of liability the applicant’s criminal responsibility for the injuries suffered was much reduced.

That is not to say that in all cases of joint criminal enterprise there will be a marked difference in the degree of criminal responsibility between the participants for the consequences of their joint actions. It all depends upon the particular facts and circumstances of the particular enterprise including the nature of the joint enterprise, its object, the period during which the enterprise was on foot, and the conduct of each of the participants. In many cases there will be no significant difference between the criminality of the person who caused the injury and any other person involved in the joint criminal enterprise.
The offence occurred in September 2001 when the applicant was aged 25 years. Since the commission of the offence he had served his first gaol sentences for various offences including the period of 12 months for the other offences that arose from the fracas on Central Station. As I have already indicated he had a positive Pre-sentence report, and apart from his cannabis use, he abided by his bail conditions and remained in full-time employment. He has now been in custody since October last year, a period of a little more than 8 months. He had served a period of custody referable to the offence pending release on bail of almost 2 months.
In my opinion the starting sentence of three years chosen by Acting Judge Mahoney was manifestly excessive having regard to the conduct of the applicant and his criminal responsibility for the injuries suffered by the police officer as against a maximum penalty of 7 years. Although it was argued that the Judge erred in concluding that a custodial sentence was warranted, I do not accept that submission. There was a significant element of general deterrence and retribution required notwithstanding that it was not the applicant who actually struck the policeman. The applicant was the main offender in the events that precipitated his arrest and it was his conduct in trying to avoid apprehension that led to the involvement of the co-offender and thus the attack upon the officer.
In my opinion an appropriate starting sentence was one of two years allowing for the limited use that could be made of the injuries suffered by the police officer and taking into account the period of time that had transpired since the commission of the offence and the efforts of the applicant at rehabilitation in the meantime. In determining that starting point I take into account the seriousness of the offence and the importance of general deterrence in relation to offences against police officers. The sentence is to be reduced by 20 per cent for the plea of guilty, that being the discount applied by the sentencing Judge. This results in a head sentence of 19 months.
In my view there are special circumstances having regard to the prospects of further rehabilitation set out in the pre-sentence report and the need for supervision identified by the probation officer.
I propose the following orders:
1.The application for leave is granted and the appeal is allowed.
2.The sentence imposed by Acting Judge Mahoney is quashed.
3.In lieu the applicant is sentenced to imprisonment for 19 months. There should be a non-parole period specified of 10 months. The sentence should be taken to have commenced on 25 August 2004 and, therefore, the non-parole period expires today 24 June 2005. The applicant is to be released to parole today. His parole is to be subject to the usual conditions as to supervision by the Probation and Parole Service.
SPIGELMAN CJ: I agree.
HUNT AJA: I also agree.
SPIGELMAN CJ: The orders of the Court are as indicated by Justice Howie.

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LAST UPDATED: 26/07/2005