Sen, Akin v The Queen

[2013] NSWCCA 30

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

SEN, Akin v R [2013] NSWCCA 30

Hearing dates:

15 November 2012

Decision date:

19 February 2013

Before:

McClellan CJ at CL at 1
Rothman J at 2
Bellew J at 38

Decision:

(1) Leave to appeal be granted;

(2) Appeal allowed;

(3) Sentence imposed on Mr Sen by the District Court on 20 May 2011 be quashed and in lieu thereof:

(i) Mr Sen be sentenced for each of the offences of robbery in company and aggravated detain for advantage without consent committed on 23 January 2008, to a non-parole period of 3 years' imprisonment, commencing 1 March 2011 and concluding 28 February 2014, with a balance of term of 1 year and 9 months, concluding 30 November 2015. Mr Sen is first eligible for release on parole on 28 February 2014.

Catchwords:

CRIMINAL LAW - sentence appeal - parity with co-offender - justifiable sense of grievance - appeal allowed

Cases Cited:

Andrews v Law Society of British Columbia [1989] 1 SCR 143
Carruthers v R [2007] NSWCCA 276
Green v The Queen
Jimmy v R [2010] NSWCCA 60
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
Quinn v The Queen [2011] HCA 49; (2011) 86 ALJR 36
R v Tiddy [1969] SASR 575
Wong v R [2001] HCA 64; (2001) 207 CLR 584

Category:

Principal judgment

Parties:

Akin Sen (Applicant)
Crown (Respondent)

Representation:

Counsel:
T Gartelmann (Applicant)
H Wilson (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2009/77481

 Decision under appeal 

Date of Decision:

2011-05-20 00:00:00

Before:

Colefax DCJ

File Number(s):

2009/77481

Judgment

1. McCLELLAN CJ at CL: I agree with Rothman J.

1. ROTHMAN J: The applicant, Akin Sen, seeks leave to appeal the sentence imposed on him by the District Court on 20 May 2011 for the offences of robbery in company (Count 1) and detain person in company with intent to obtain advantage (Count 2). If leave were granted, the applicant appeals the sentence.

1. The sole ground of appeal was disparity in the sentence between the applicant and his co-offender, Ms Amna Hamze. In relation to Count 1, the applicant was sentenced to imprisonment for 5 years, 4 months and 24 days with a non-parole period of 4 years and 18 days. For Count 2, the applicant was sentenced to imprisonment for 5 years, 4 months and 24 days, with a non-parole period of 4 years and 18 days. The sentences were to be served wholly concurrently, so the overall sentence was identical to the sentence for each count.

1. The co-offender was sentenced to imprisonment for 4 years, 2 months and 30 days, with a non-parole period of 2 years, 1 month and 14 days. The applicant submits that he has a justified sense of grievance arising from the disparity in the sentence imposed upon him and his co-offender. Each of them was sentenced by the same judge.

Brief summary of crime

1. On 23 January 2008, the applicant and three other people (the co-offender and another man and woman) travelled to premises at Bidwill. This had been prearranged. One of the residents at that premises was Mr Boye.

1. The vehicles that transported the applicant, his co-offender and the two unnamed persons parked in the street of Mr Boye's premises. The two women approached Mr Boye and discussed collecting drugs. One of the women asked to use the toilet and entered the house. The applicant then approached the premises. Mr Boye, the applicant, his co-offender and the unnamed woman entered the house at the request of the unnamed woman.

1. The unnamed woman grabbed Mr Boye and the applicant pushed Mr Boye. They dragged him into the bedroom. Mr Boye noticed that the unnamed woman had a knife. She lunged at him and stabbed his forearm. The unnamed woman demanded to know the combination of the safe and Mr Boye's hiding spot for the drugs. The applicant pulled the safe off the wall around this time. The unnamed woman held the knife to Mr Boye, spun him around and stole his wallet from his back pocket. She pushed him on to the bed, tied his ankles together and stole his watch. A number of other items were also stolen from the premises.

1. His Honour assessed the applicant and the co-offender as having played a "similar role in the facts which gave rise to slightly different offences". His Honour remarked (ROS 12) that there was "no immediate explanation as to why they were charged with different offences considering the very similar roles which they each played". Further, his Honour found that there was no evidence that Mr Sen was aware that a knife was to be used in the commission of the offence.

1. The Crown has quite properly conceded that the respective criminality of each of Mr Sen and his co-offender was "essentially the same". The applicant and co-offender were charged with different offences, for which no explanation has been forthcoming. The co-offender was charged with the more serious offences, carrying a maximum sentence of 25 years' imprisonment and a standard non-parole period, while the maximum sentence for the offences with which the applicant was charged is 20 years' imprisonment, no standard non-parole period being prescribed.

Subjective circumstances

1. Mr Sen left school at 16 years of age, having completed year 10. He commenced, but did not complete, a mechanical skills course at TAFE. While he had been employed intermittently in the intervening years, he had been substantially unemployed for the two-year period leading up to his arrest.

1. Mr Sen has a "relatively brief and unremarkable criminal history" (ROS 8). The sentencing judge concluded that Mr Sen suffers from bipolar disorder (ROS 9). His Honour declined, because there was no submission to that effect and no evidence to support it, to find the existence of any mental illness at the time of the commission of the offence.

1. Dr Teoh, a psychiatrist qualified by the applicant and whose report was before the sentencing judge as Annexure B to an affidavit of 3 November 2010, diagnosed Mr Sen as having Bipolar Mood Disorder (as per DSM-IV), which would cause unstable mood. The unstable mood can affect judgment. Dr Teoh's opinion was that:

"He could be impulsive and disinhibited during period of hypomania, and profoundly negative in his assessment and decision when he becomes depressed."

1. According to Dr Teoh, Mr Sen has a long history of psychiatric illness. He had a history of polysubstance abuse. Mr Sen's mother was diagnosed as bipolar and admitted as a consequence. Bipolar disorder is a condition with high genetic predisposition and Mr Sen had a history of significant depression in the background of unstable mood, which supports the diagnosis from an earlier age.

1. Mr Sen also qualified Dr Furst, a Consultant Forensic Psychiatrist, whose report of 26 April 2011 was also before the Court below.

1. Mr Sen was 31 years old and lived with his mother. His father, to whom he was very close, died in May 2010. He was in a previous relationship from 1998 to 2004. Following the breakdown in the relationship, there were continuing disputes with his ex-girlfriend regarding their children.

1. During the course of that disputation, the feelings of uselessness manifested, and his ex-partner informed him that the children were not his, which devastated him. He has two daughters, living with his ex-partner, and with whom he has had no contact for four years, notwithstanding that he has established that he is the biological father.

1. As already stated, he has had significant issues with drug and alcohol abuse and the sentencing judge rejected evidence of remission.

1. He is in a current relationship and his partner was pregnant at the time of the sentencing hearing.

1. The sentencing judge considered that he was unable to conclude that Mr Sen had any genuine remorse or any "reasonable prospects" for rehabilitation. Nevertheless, the sentencing judge considered the applicant's rehabilitation prospects as "at best fair" (ROS 10.5 to 11.7). For that conclusion, his Honour relied substantially upon Mr Sen's attitude to the sentencing hearing, his failure to give oral evidence of remorse and his repeated assertion of a version of events that was significantly different from the agreed facts.

1. While his Honour considered that the opinion of an appropriately qualified medical practitioner as to the likely success of any drug and alcohol counselling was relevant to assessing the prospects of rehabilitation, his Honour rejected the opinion of Dr Furst, because Dr Furst was: unaware of Mr Sen's "inconsistent drug history"; unaware of the falsity of Mr Sen's denial of recent drug use; and unaware of Mr Sen's persistent avoidance of the facts surrounding these offences. However, Dr Teoh also commented on this aspect and suggested that the applicant would benefit from appropriate psychiatric treatment.

Parity principle

1. As has been explained many times, the principle of parity in sentencing derives from the application of the fundamental principle of equal justice: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 86 ALJR 36; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 (per Dawson and Gaudron JJ) at 301-302, citing with approval Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; Jimmy v R [2010] NSWCCA 60.

1. Equal justice is a fundamental norm (Green, supra) and an essential aspect of natural justice. It requires that like should be treated alike, and that which is unalike should be treated unalike in proportion to their "unalikeness": Andrews v Law Society of British Columbia [1989] 1 SCR 143, per McIntyre J, citing Aristotle's Ethica Nicomachea; R v Tiddy [1969] SASR 575.

1. In Tiddy, supra, the South Australian Supreme Court said:

"... Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made."

1. I reiterate my comments in Carruthers v R [2007] NSWCCA 276 with which Mason P and Hidden J agreed, in which the following was said:

"[19] The task of sentencing is a difficult one involving the reconciliation of sometimes conflicting goals including retribution, punishment, general and specific deterrence, protection of the community, rehabilitation, denunciation and accountability: see section 3A Crimes (Sentencing Procedure) Act 1999 (NSW). Recitation of those goals immediately displays the tension between them. Moreover, sentencing is not a mathematical exercise (Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048); different sentencing judges will arrive at different results, within an appropriate range, that are nevertheless correct and so long as the result is consonant with consistency of approach and accords with the statutory regime, as much flexibility as possible must be allowed: Markarian, supra, at [27]; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at 618 [5].

[20] Where, as here, reliance is placed upon the disparity of sentence between co-offenders particular principles apply. Those principles are well established. The principles that apply to parity in sentencing are a manifestation of the application of the principles of equal justice. They require that like should be treated alike and, where there are relevant differences, due allowance should be made for such differences: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 301 (per Dawson and Gaudron JJ); R v Tiddy [1969] SASR 575 at 577.

[21] Discrepancy is not, itself, sufficient to warrant intervention by an appellate court, unless, viewed objectively, the discrepancy is unjustifiable. The comparison is made between the objectively determined culpability of the offenders in their respective roles in the offence, together with the differences in the subjective factors that are applied to each offender. Where there are unjustifiable differences, an appellate court will not intervene to reduce a sentence to a level that would be inappropriate for the offence in question. The fixing of an inappropriate sentence, for the sake of parity, may bring the administration of justice into disrepute as much or more than retaining the disparity would: McKenna v Regina [2007] NSWCCA 113 at [48]- [55]."

Consideration

1. If there be a distinction in the respective criminal culpability of Mr Sen and Ms Hamze, it is not significant. Each has been involved in the same crime to the same, or an insignificantly different, degree.

1. No two offenders are identical. In this case, Mr Sen and Ms Hamze differ in their subjective circumstances. Each of Ms Hamze and Mr Sen were on conditional liberty at the time of the offence. Each had a criminal history, although Ms Hamze's criminal history is significantly more extensive than that of the applicant and it included a number of entries for dishonesty and violence.

1. Ms Hamze had suffered much as a child. She was sexually assaulted at 16 as a result of which she was subject to threats from her father for what he saw was the shame she had brought upon their family. She was sent to Lebanon, where she was forced into an arranged marriage to a man who proved to be violent and abusive. She was subsequently divorced for which she suffered the further opprobrium of her family.

1. Most significantly to the sentencing judge, Ms Hamze was suffering, on his view, psychological or psychiatric disorders at the time of the commission of the offence, whereas Mr Sen's bipolar disorder manifested, it was held, only after the offence. His Honour, as a consequence of this finding, reduced Ms Hamze's sentence significantly.

1. The Crown, in its submissions to this Court, submits that these "factors taken together led the sentencing judge to impose a lesser sentence upon Ms Hamze than that imposed upon the applicant". The applicant submits that the differences between the circumstances of the applicant and the co-offender can not lead to the difference in the sentences imposed on each, even if some difference is warranted.

1. As the High Court said in Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 608 (per Gaudron, Gummow and Hayne JJ):

"To focus on the result of the sentencing task, to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice. Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect."

1. Yet, the issue must be examined from the perspective of whether, objectively, the applicant has a justifiable sense of grievance. Such a sense of grievance can be manifest even though there are reasons for some difference in sentence when the difference is greater than equal justice dictates. This is such a case. Moreover, I accept the sentencing judge's statement that "the sentence [for Mr Sen] should [not] be lesser to a significant or any degree", although the result implemented by his Honour was somewhat inconsistent with that expressed sentiment.

1. In this case, the difference in the sentence imposed on Mr Sen is not implementing to an appropriate degree the difference in subjective circumstances, and, given that the objective criminality is the same, the appeal should be allowed, and the applicant re-sentenced.

1. I take account of each of the subjective factors to which the sentencing judge has referred relating to both Mr Sen and, by comparison, Ms Hamze. I reiterate that sentencing judges should not impose sentences in "days", regardless of the arithmetic calculation arising from some discount or time already served. The latter should be accommodated by an appropriate commencement date for the sentence and, otherwise, the sentence or discount should be rounded.

1. In my view an appropriate differential between Mr Sen and his co-offender to account for the different subjective circumstances is approximately 6 months in the head sentence, and, applying the parity principle, I would impose on the applicant a sentence of imprisonment of a head sentence of 4 years and 9 months.

1. I turn then to the issue of special circumstances. In order to find special circumstances, the Court should be satisfied that the circumstances are truly "special", namely, pertain distinctly or particularly to the offender being sentenced. Unlike his Honour the sentencing judge, and, in part at least, based on the additional evidence on which this Court may now rely, I take the view that the applicant needs a more substantial period of rehabilitation to complete in the community the drug dependence rehabilitation that he has now commenced in prison and, to the extent possible in that environment, successfully completed.

1. Further, it is important that the applicant have an extended period of supervision in the community to complete that rehabilitation and to effect a structure for the appropriate medication and treatment of his bipolar disorder. In those circumstances, I find special circumstances.

1. I propose that the Court issue the following orders:

(1)   Leave to appeal be granted;

(2)   Appeal allowed;

(3)   Sentence imposed on Mr Sen by the District Court on 20 May 2011 be quashed and in lieu thereof:

(i) Mr Sen be sentenced for each of the offences of robbery in company and aggravated detain for advantage without consent committed on 23 January 2008, to a non-parole period of 3 years' imprisonment, commencing 1 March 2011 and concluding 28 February 2014, with a balance of term of 1 year and 9 months, concluding 30 November 2015. Mr Sen is first eligible for release on parole on 28 February 2014.

1. BELLEW J: I agree with Rothman J.

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Decision last updated: 20 February 2013