R v Youkhana - [2004] NSWCCA 412

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Youkhana [2004] NSWCCA 412

FILE NUMBER(S):
6011/04

HEARING DATE(S): 04/05/2004

JUDGMENT DATE: 30/11/2004

PARTIES:
Regina (respondent)
Moshey Youkhana (applicant)

JUDGMENT OF: McColl JA Levine J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0067

LOWER COURT JUDICIAL OFFICER: Nash DCJ

COUNSEL:
P Hamill (applicant)
B J Knox SC (Crown)

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

CATCHWORDS:
CRIMINAL LAW:
Application for leave to appeal against sentence
armed robbery
sentence accumulated upon existing sentence
whether sentence and non-parole period reflect principle of totality

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act (s21A(2))
Crimes Act

DECISION:
Leave to appeal granted, appeal allowed, sentence quashed - in lieu, applicant sentenced to imprisonment 5 years and 3 months, with non-parole period of 3 years and 3 months, from 28 February 2004.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60011 of 2004
MCCOLL JA
LEVINE J
HIDDEN J
Tuesday 30 November 2004

Regina v Moshey Youkhana

Judgment

MCCOLL JA: I agree with Hidden J.
LEVINE J: I agree with Hidden J.
HIDDEN J: The applicant, Moshey Youkhana, pleaded guilty in the District Court to a charge of armed robbery, an offence under s97(1) of the Crimes Act which carries a maximum sentence of twenty years imprisonment. He was sentenced to imprisonment for six years and four months, with a non-parole period of four years, two months and two weeks, to date from 28 February 2004. He seeks leave to appeal against that sentence. The sentence was directed to commence at the expiration of a fifteen month sentence which he was serving at the time, and to which it will be necessary to refer when dealing with the application.
Facts
Late in the morning of 29 September 2002, the applicant and a co-offender, Olani Mea, went to the Mandarin Club in Sydney. They spent about four hours drinking and gambling on the poker machines. They then went to the reception desk in the foyer and asked the receptionist if they could speak to the manager about employment as security guards. The receptionist called for the manager, Mr Gordon Wong, who came to the foyer.
Mea then produced a replica pistol, similar to a .32 calibre automatic, and the two offenders forced Mr Wong and the receptionist into an office adjacent to the foyer. There, Mr Wong was directed to remove the video tapes from a video recorder connected to the surveillance cameras throughout the club, and the applicant took possession of those. There were two safes in the office and Mr Wong was made to open them. The offenders noticed another door from the office leading to the cashier’s booth in the poker machine lounge. The manager was directed to call the cashier into the office and she also was detained.
The applicant withdrew a pair of gloves and a plastic bag from his trousers pocket, put the gloves on and placed money from the safes into the bag. He also produced a roll of duct tape from his pocket and the three victims were bound hand and foot. Mea searched Mr Wong and stole his mobile phone. During the incident each of the offenders held the replica pistol at different times and it was pointed at Mr Wong on several occasions. As the two offenders left the office, Mea threatened to kill Mr Wong’s “whole family” if anything happened to them.
The offenders made off with a little over $81,000, which was never recovered. The applicant was arrested on 7 November 2002 and, on legal advice, declined to be interviewed. Mea was arrested the same day. In due course, he also pleaded guilty and was dealt with at the same time as the applicant.
The sentencing judge described the robbery as having been carried out “with professionalism”, although he was not satisfied that it was planned before the offenders arrived at the club. He found a number of the aggravating factors set out in s21A(2) of the Crimes (Sentencing Procedure) Act, and I shall refer to some of those in the course of these reasons.
Subjective case
The applicant was thirty-two years old at the time of the offence and is now thirty-four. Prior to 2002 he had a minor criminal record, comprising some traffic offences, a drug offence and a conviction for receiving, none of which resulted in a custodial sentence. However, in 2002 he was charged with improperly interfering with a corpse, an offence under s81C(b) of the Crimes Act. He had allowed his cousin to use his business premises for the purpose of conducting a drug deal. He later attended the premises to find that his cousin had been shot dead. He placed the body in the boot of his car, cleaned blood from the scene, and abandoned the car at a location in Parramatta.
For this offence he was sentenced to the fifteen month term to which I earlier referred, which commenced on 28 November 2002 and expired on 27 February 2004. Hence the commencement date of the sentence the subject of this application, 28 February 2004. More importantly, he was on bail in respect of that offence at the time of the robbery: an aggravating feature which has long been recognised and which is now enshrined in s21A(2)(j).
The applicant was born and raised in Iraq. He was one of ten children and his family was poor, but it seems that his upbringing was satisfactory. He was conscripted into the Iraqi army and was wounded during the first Gulf war. He escaped to Turkey, and in 1992 he and two of his siblings arrived in Australia. Others of his family migrated to Canada or Turkey, and some remained in Iraq. Since arriving in Australia he had been in employment, and for a year prior to his arrest he conducted his own car detailing business. His co-offender, Mea, worked for him in that business. He is married and has two children.
From a pre-sentence report and a psychiatric report, it appears that his involvement in the robbery had its genesis in a gambling problem which he had developed over the previous year. In addition, since his cousin’s death, for which he felt a measure of responsibility, he had been drinking and using stimulant drugs to excess. Nevertheless, given his satisfactory employment history and the fact that he retained strong family ties, his Honour considered that his prospects of rehabilitation were “at least reasonable” and thought him unlikely to re-offend in a serious way.
The sentence
His Honour had regard to the guideline judgment in respect of armed robbery offences in R v Henry & Ors (1999) 46 NSWLR 346. Taking into account the aggravating features of the offence, his starting point was imprisonment for eight years. This he reduced by twenty percent for the applicant’s plea of guilty, arriving at a term of six years, four months and three weeks. He then discounted that figure by three weeks to take account of a brief, discrete period of pre-sentence custody. The result was the head sentence of six years and four months which was passed.
As I have said, the whole of that sentence was accumulated upon the sentence of fifteen months which the applicant was then serving. His Honour did not find special circumstances. However, he then made an error in the applicant’s favour. Stating that the “statutory non-parole period is two-thirds of the head sentence”, he fixed the non-parole period to which I have referred: four years, two months and two weeks, expiring on 11 May 2008. The normal statutory proportion, of course, is three quarters, which would have produced a non-parole period of four years and nine months.
In the result, the applicant must remain in custody from the commencement of the pre-existing sentence, 28 November 2002 until he becomes eligible for parole on 11 May 2008, a period of almost five-and-a-half years. The balance of the sentence expires on 27 June 2010, a further period of almost two years and two months.
The application
It is the structure of the sentence which gives rise to the principal complaints in the present application. Mr Hamill, for the applicant, argued that his Honour failed to have regard to the effect of accumulation in arriving at both the head sentence and the non-parole period. Certainly, his Honour’s only reference to that matter was to record that he had considered making the sentence partly concurrent with the sentence the applicant was then serving but had concluded that there was “no justification for doing this”.
Mr Hamill argued that the head sentence failed to give effect to the principle of totality, in so far as it normally requires some moderation of a sentence which is to be accumulated upon an existing sentence. That principle, of course, is of long standing. Mr Hamill referred us to the restatement of it in Postiglione v The Queen (1996-7) 189 CLR 295 by McHugh J at 307-9 and Kirby J at 341. McHugh J (at 308) cited with approval the following passage in the judgment of Hunt CJ at CL in R Gordon (1994) 71 ACrim R 459 at 466:
When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable…
A statement of principle to the same effect is to be found in the judgment of Hunt CJ at CL in R v Close (1993) 65 ACrim R 55 at 59:
Whenever sentences are accumulated, careful consideration must always be given to the principle of totality – as to whether the simple addition of two or more sentences which may individually be appropriate has nevertheless produced a total figure which is excessive having regard to the totality of the criminality involved…that principle is not restricted to sentences imposed for offences committed as part of a connected and roughly contemporaneous series of offences…
In my view, Mr Hamill’s submission is sound. Viewed against the guideline in Henry (supra), to be found in the judgment of Spigelman CJ at [162] - [165], the sentence in the present case is severe but, absent the accumulation, one which could not be said to be excessive in the light of the particularly serious circumstances of the offence, the applicant’s maturity and the fact that he was subject to conditional liberty at the time. However, the effect of the accumulation of that sentence upon the existing sentence is an aggregate term of seven years and seven months. Given his plea of guilty and the other favourable subjective circumstances, I consider that to be more than is called for by the totality of the criminality disclosed by the two offences.
As I have said, Mr Hamill also submitted that his Honour failed to have regard to the accumulation when considering special circumstances. It is well established that the fact that a sentence is to be accumulated upon an existing sentence can amount to a special circumstance warranting a departure from the usual proportion between head sentence and non-parole period: Close (supra), per Hunt CJ at CL at 60. His Honour did not advert to this matter in his remarks, and appears to have confined his decision that there were no special circumstances to a consideration of the applicant’s subjective case. However, the practical difficulty with Mr Hamill’s argument is that, albeit mistakenly, his Honour did fix a non-parole period which is less than the statutory proportion.
That said, as I am satisfied that the head sentence was affected by error, this Court should set aside the sentence and determine the appropriate sentence afresh. I would accumulate that sentence upon the previous sentence but, for that reason and also in the light of the applicant’s subjective case, I would find special circumstances.
There were three other grounds of the application which, strictly speaking, it is unnecessary to decide. However, while two of them require no more than brief reference, the third should be considered because it raises a matter of some importance and, in any event, could bear on re-sentence. Nothing need be said about the first ground, which asserts that his Honour erred in the way in which he arrived at the discount for the applicant’s plea of guilty. The second ground relates to his Honour’s rejection of a statement of the applicant recorded in the psychiatrist’s report that “he apologised to the staff of the club at the time of the robbery”. It is sufficient to say that a statement to police by the club’s receptionist, Mr Bruno Battisti, records that the applicant said, “Sorry, mate” before he bound him with duct tape.
The third ground arises from his Honour’s finding, as an aggravating factor within the meaning of s21A of the Crimes (Sentencing Procedure) Act, that there “clearly was some emotional harm to the three victims”. This must be a reference to the factor set out in s21A(2)(g): “the injury, emotional harm, loss or damage caused by the offence was substantial”. It is necessary to examine what evidence his Honour had before him of the victims’ reaction to the robbery.
Before his Honour were statements by the manager, Mr Wong, and the receptionist, Mr Battisti. For reasons which are not apparent, there was not a statement from the cashier. The only reference to an emotional reaction by Mr Battisti was his saying that he “started to feel scared” when Mea handed the gun to the applicant, who pointed it at Mr Wong and threatened to shoot him in the knee cap. In his own statement, Mr Wong said:
During the incident, I was panicking and very concerned when I saw the Islander male with the pistol. At many times during the ordeal, the Islander male pointed the pistol directly at me and I was concerned that he might shoot me. I am still shaken and very nervous as a result of the incident. (The “Islander male” was Mea.)
Mr Wong made that statement on the day of the robbery and there is no evidence that his emotional state was enduring.
One can entirely understand Mr Wong’s reaction as he described it. No doubt, Mr Battisti’s statement that he “started to feel scared” at one stage of the robbery is an understatement. Armed robbery is necessarily a frightening experience for its victims. This is not a matter about which courts need evidence. In large part, it is why the offence is viewed so seriously and carries a very high maximum sentence.
However, before a judge could find “substantial emotional harm” within the meaning of s21A(2)(g), one would expect evidence specifically directed to that issue. Normally, that would be in the form of a victim impact statement. Whether that evidence established the aggravating factor would be a matter to be determined in the circumstances of the particular case. However, it would need to disclose an emotional response significantly more deleterious than that which any ordinary person would have when subjected to an armed robbery. There was no such evidence here.
Re-sentence
Taking into account all relevant matters except the plea of guilty, I would sentence the applicant to imprisonment for seven years. The plea of guilty is of considerable utilitarian value, having been entered in the Local Court. In recognition of it, I would reduce that sentence by twenty-five percent to five years and three months. I would direct that sentence to commence at the expiration of the fifteen month sentence imposed at Parramatta Local Court, that is, on 28 February 2004. Finding special circumstances, I would specify a non-parole period of three years and three months, expiring on 27 May 2007.
The pre-existing sentence of fifteen months commenced on 28 November 2002. Aggregating that sentence and the sentence which I propose, the applicant would face a total term of six and a half years imprisonment from that date and would be eligible for release on parole after serving four-and-a-half years.
Orders
I would propose the following orders:
(a) Leave to appeal is granted, the appeal is allowed and the sentence passed in the District Court is quashed;
(b) The applicant is sentenced to imprisonment for five years and three months, with a non-parole period of three years and three months, to date from 28 February 2004. He will be eligible for release on parole on 27 May 2007.

**********

LAST UPDATED: 02/12/2004