Regina v Bablanian

[2000] NSWCCA 276

CITATION:	REGINA v BABLANIAN [2000] NSWCCA 276
FILE NUMBER(S):	CCA 60167/99
HEARING DATE(S):	14 July 2000
JUDGMENT DATE:	14 July 2000
PARTIES :	Regina v Sam Bablanian
JUDGMENT OF:	Adams J at 1; Bell J at 16

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/2185
LOWER COURT JUDICIAL OFFICER :	O'Reilly DCJ

COUNSEL :	Mr W G Dawe QC (Crown) Mr P M Winch (Applicant)
SOLICITORS:	T A Murphy (Crown) S E O'Connor (Applicant)
CATCHWORDS:	Sentence appeals - multiple counts of robbery and stealing - significance of below average intelligence - sentence reduced
DECISION:	The sentence below is quashed. In substitution therefor a sentence of five years imprisonment to date from 25 September 1998 with a non-parole period of two years expiring on 24 September 2000.

IN THE COURT OF
CRIMINAL APPEAL

60167/99

ADAMS J
BELL J

FRIDAY 14 JULY 2000

REGINA v SAM BABLANIAN

JUDGMENT 1    ADAMS J: The applicant in this matter was sentenced on 8 April 1999 in the District Court upon six counts of an indictment charging him with two occasions of robbery in company, one of breaking, entering and stealing and three counts of car stealing. Those offences occurred all within the course of a few days in September 1998, a few weeks before the applicant's twenty-first birthday. 2    I should briefly set out the nature of the crimes. The first count alleged that at about 10.30pm on Tuesday 22 September 1998 the applicant with two others drove in a stolen vehicle to an address at St Johns Park. Unbeknownst to the applicant, his two accomplices were armed with samurai swords, which were produced once entry was gained into the premises. The occupants were tied up and terrified. Various items and cash were stolen from the premises. This crime was correctly characterised as a home invasion. It was a very serious offence indeed. 3    The second count concerned an event that occurred on the previous day in which the applicant with two accomplices drove a stolen vehicle to a post office at Fairfield West. The applicant and one of the accomplices covered their heads, ran into the building, confronted the attendant, the applicant even jumping the counter. They demanded money and were given six hundred dollars. 4    The third count arose out of events occurring in the evening of 17 September 1998 where the applicant and another person went to a house at Bonnyrigg and smashed a window to gain entry. They were disturbed by the return of the householder and they stole his vehicle and made their escape, this theft becoming an additional count of the indictment. Counts five and six referred to the theft of motor vehicles at Bonnyrigg and Cabramatta on 22 and 23 September 1998. 5    When these matters were being undertaken by the applicant, he was living on the streets, as it were, with other co-offenders, having been ejected from his home because of persistent thefts committed by him on his family in order to feed his drug addiction. The learned sentencing judge was also asked to take into account two thefts, one on 17 September and one on 25 September. 6    Taking into account the substantial subjective features together with what I might usefully refer to as the Cartwright factor, his Honour sentenced the applicant to a term of imprisonment of seven years on the first count, which was designed to pick up the totality of the criminality reflected in the indictment. His Honour imposed a minimum term of three and a half years from 25 September 1998 and an additional term of three and a half years expiring 24 September 2005. In respect of the other five counts of the indictment, his Honour imposed concurrent fixed term sentences of two and a half years from 25 September 1998. The reason for this structure is obvious from his Honour's judgment. 7    The primary ground relied on by the applicant in support of his appeal in this Court is that this sentence did not give adequate acknowledgment of the assistance given to the police in identifying one of the co-offenders. I think I need say no more on that particular point than that if an appropriate allowance is made in this regard his Honour's starting point must have been very high in order to result in an overall sentence of seven years imprisonment. 8    I need to refer to some other factors to demonstrate this situation. I have already referred to the youth of the applicant. Regrettably, it appears that he has what Dr Lennings, a psychologist, refers to as very low cognitive skills. His performance on the Wechler Adult Intelligence Scale Revised Test placed him in the borderline mentally retarded range for ability, or better than only the bottom five per cent of the population. Analysis of the tests, which also seeks to measure non-verbal intelligence, show uniformly poorer performance in his verbal skills relative to his non-verbal skills. This was very significant in the applicant's case because he was also brought up in a home in which English was not his parents' first language. 9    The applicant's performance in the memory component of the test was very poor, falling below the bottom ten per cent of the population. A test designed to measure the extent to which a person can correct errors, inhibit distractability and plan behaviour demonstrated poor performance, again falling below the bottom ten per cent of the population. Overall the applicant was a young man of very low cognitive functioning with significant difficulties in planning and memory. He is functionally illiterate. 10    Whilst there can be no doubt that the applicant appreciated that what he was doing was both unlawful and seriously wrong, it seems to me fair to draw the inference that his ability to appreciate the true gravity of the crimes that he was committing was significantly less than that of a person of average social and cognitive skills. Furthermore, at this time he was badly affected by his addiction to illicit drugs. Although, as has been said frequently, mere addiction to drugs is not a circumstance of mitigation, yet where ability and personal resources to resist the use of drugs in a culture where they are widely available is reduced by the level of cognitive ability, demonstrated by a person such as this applicant, its contribution to the crime must be given some allowance. The applicant had also pleaded guilty in respect of some offences which would have been difficult to prove had he not done so. 11    When these factors are brought to bear on the starting point of an appropriate sentence, it is manifest either that his Honour started at a level that was inappropriately high, having regard to the total culpability involved, assessing both objective and subjective features, or else his Honour did not give sufficient allowance for the Cartwright factors. I think that the latter is the likely explanation for the seven years overall sentence to which I have adverted, but whether or not this is the case makes no difference. 12    I should mention that it is important, if I may say so with respect, that sentencing judges bear in mind when dealing with a person of the mental capacity of this applicant, that their functioning in gaol in a way that enables them to deal with and hopefully escape, partly if not fully, the dangerous elements of that environment is an important factor in the sentencing process. It is conventional law, which expresses no more than justice in my view, that where a prisoner will serve a sentence in conditions more harshly than the average prisoner, that must be taken into account, not out of sympathy for that prisoner but because of the principle of equality of justice. 13    In this case it is obvious, having regard to the results, to which I have only referred in part, of the tests conducted by Dr Lennings, that the applicant will be at a significant disadvantage in the gaol environment with a consequence not only that it is going to be more harsh for him but also more dangerous. This factor was not brought to his Honour's attention by counsel but it is so significant in the circumstances of this case that it provides support for my disquiet about the appropriateness of the sentence passed on the applicant. 14    I consider, therefore, that the sentence passed below was manifestly excessive. The question is what is the appropriate sentence for this Court to impose. Very significant from the point of view of a young person are the prospects for rehabilitation. This is so not only in his interest but in the public interest, and bears an importance much greater in the case of a youthful offender than one of mature years and understanding, especially a young offender who needs the kind of support but seems to be amenable to improvement, which is shown by the applicant here. His family have, since these offences, been prepared to support him, and I am satisfied on the basis of the material which has been provided to this Court that this will be a significant factor in continuing the rehabilitation which is already evident. 15    The sentence below is quashed. I propose that in substitution there be imposed a sentence of five years imprisonment to date from 25 September 1998 with a non-parole period of two years expiring on 24 September 2000. 16    BELL J: I agree. 17    ADAMS J: The orders will therefore be as I have stated.

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