Stepanyan v The Queen

[2014] NSWCCA 7

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Stepanyan v R [2014] NSWCCA 7

Hearing dates:

11 February 2014

Decision date:

20 February 2014

Before:

Hoeben CJ at CL at [1]
Schmidt J at [2]
Barr AJ at [63]

Decision:

1. Leave to appeal allowed.

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - leave to appeal against sentence - robbery whilst armed with dangerous weapon - whether error in finding the offence was aggravated by security guard - co-offender shot - whether applicant had justifiable sense of grievance given the degree of disparity - Form 1 offence taken into account - leave to appeal allowed - appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Dionys v R [2011] NSWCCA 272
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Henry (1999) 46 NSWLR 346
Mulato v R [2008] NSWCCA 282
R v Wright [2009] NSWCCA 3

Category:

Principal judgment

Parties:

Dimitri Stepanyan (Applicant)
Regina (Crown)

Representation:

Counsel:
Mr D Dalton SC (Applicant)
Mr H Wilson Sc (Crown)
Solicitors:
Benjamin & Leonardo Criminal Defence Lawyers (Applicant)
S Kavanagh, Solicitor for Public Prosecutions

File Number(s):

2009/226281

Publication restriction:

None

 Decision under appeal 

Date of Decision:

2012-05-17 00:00:00

Before:

Lakatos DCJ

File Number(s):

2009/226281

Judgment

1. HOEBEN CJ AT CL: I agree with Schmidt J.

1. SCHMIDT J: The applicant seeks leave to appeal a sentence of 10 years' imprisonment with a non-parole period of 7 years imposed upon him by Lakatos DCJ, after he received a 10% discount for a plea of guilty to a charge of robbery whilst armed with a dangerous weapon, the maximum penalty for which was 25 years (s 97(2) of the Crimes Act 1900 (NSW)). The sentence was imposed on 17 May 2012, the applicant having entered the plea on 16 May 2012 on re-arraignment following an aborted trial conducted in March and April 2012. In imposing that sentence his Honour also took into account an offence of discharge firearm in a public place, which carries a maximum penalty of 10 years (s 33 of the Crimes Act), on a Form 1.

1. Two grounds of appeal were advanced:

1. His Honour erred in finding that the offence was aggravated by the security guard, a co-offender, being shot.

2. The applicant had a justifiable sense of grievance given the degree of disparity in the starting point adopted by his Honour, in relative terms to that adopted with the co-offender Balian.

The sentencing judgment

1. Lakatos DCJ noted that the offence to which the applicant had initially pleaded not guilty was that on 20 March 2009 he had robbed Scott Lee of $25,312 whilst armed with a dangerous weapon. His co-offender, Garen Balian, had been sentenced by Frearson DCJ to a total term of 3 years,10 months, with a non-parole period of 2 years, 6 months for a similar offence, after a combined discount of 55% for his plea and future assistance. That sentence reflected a notional starting point of 8 years, 6 months.

1. His Honour observed that Frearson DCJ had found that Mr Balian's part in the robbery was being the driver of the getaway vehicle, he was involved in a rehearsal for the robbery and was to receive $1,300 for his efforts. In this case there was a significant contest as to the basis on which the applicant should be sentenced. His Honour observed that much of what was established on the evidence was common, but significant matters, particularly as to the roles of the applicant and Mr Balian, were in contest.

1. It was not in issue that the applicant and Mr Balian went to the Forestville RSL Club on 3 March 2009, signing in using their real names. They went again on 4 March with a third person, Harry Kradjian. The applicant and Mr Kradjian were recorded on CCTV footage on the first level which had function rooms, where they inspected some large glass windows. Mr Kradjian was then ejected from the Club and the applicant and Mr Balian went to the gaming area on the ground floor near where the safe was located and cash was held. His Honour found that they were both 'in effect casing the premises', because there was then a plan in place to rob the Club. They remained a matter of minutes, studying the security layout at various locations.

1. His Honour accepted the Crown case that there was an inside man involved, a security guard named Vahe Yaacoubian, who knew the applicant through his son. Mr Yaacoubian agreed to be shot during the robbery, so that he could avoid suspicion and would receive a compensation payout from his employer. His role was to give a signal by his mobile phone as to the appropriate time for the robbery to be committed. There were a number of meetings and phone conversations beforehand, in which he and the applicant planned the robbery.

1. It was decided to gain entry to the Club by removing a large pane of glass leading to the function rooms. His Honour accepted Mr Balian's evidence that it was the applicant who engaged a glazier to help remove the glass and that another offender, Mr Kashadorian, was to provide the getaway car, even though he was later acquitted of the charges brought against him.

1. Mr Balian's role was to drive Mr Kashadorian's car, waiting outside the Club while the robbery took place. Another co-offender Masis Berberian, was to keep a lookout a couple of blocks away and to pick up the man who was to burn the car. He was to receive $1,000 for his assistance.

1. The offenders met before the robbery. His Honour found that their discussions included that the applicant and Mr Koupilian were armed with pistols, at least one of which was real and in working order.

1. The applicant and two others, one a glazier, removed the window pane. There were a number of patrons and employees present when the applicant and Mr Koupilian, who were both armed, entered the Club at about 1.10 am. The two offenders hid until 1.40 am, waiting for the signal which Mr Yaacoubian gave by mobile phone, indicating that only he and the duty manager, Mr Lee, remained on the premises. They then donned balaclavas, which completely covered their faces.

1. The robbery was captured on CCTV. Lakatos DCJ found that while the evidence did not establish who it was that fired the shot which wounded Mr Yaacoubian, the applicant or Mr Koupilian, they were acting in concert and that accordingly, the applicant was criminally liable for the results of that conduct, no matter who fired the shot.

1. The shot was fired after the applicant and Mr Koupilian went to the ground floor where they pursued Mr Yaacoubian to the bar where Mr Lee was closing up. They both huddled on the ground, offering no resistance. One of the offenders then shot at Mr Yaacoubian with a small calibre silver coloured revolver, grazing his left thigh. Mr Yaacoubian and Mr Lee were then escorted to an area near the vault. Mr Lee was placed on the ground and his hands secured with gaffer tape. There was a brief struggle between Mr Yaacoubian and one offender, while the other attempted to fire several bullets at him. A number of shots failed to discharge before one shot penetrated Mr Yaacoubian's right rear thigh, coming to rest behind his knee. He was placed on the ground, his hands and feet were also gaffer taped and one of the offenders used his belt as a tourniquet.

1. Mr Lee was told to open the safe and that if his swipe card failed, he would be killed. Access was gained and $25,312 in various denominations taken. $180,000 earlier deposited in a time lock safe was inaccessible. The applicant and the other offender then left through the window. The getaway car was driven to Cammeray where it was burnt by another offender named Troy. He was driven away by Mr Berberian.

1. The applicant was arrested in October 2009, but declined to be interviewed. He gave evidence at the aborted trial.

1. His Honour rejected the applicant's case that his offence was on par with that of Mr Balian, with the result that given that his offence was no more serious, the starting point for his sentence should be the same as that of Mr Balian's sentence.

1. His Honour noted that at the aborted trial Mr Balian and Mr Berberian had given consistent evidence that they were both co-opted by the applicant, who falsely gave evidence denying any part in the offence or its planning. His Honour accepted that this did not give the evidence which Mr Balian and Mr Berberian had given any greater support as to their respective roles. Nevertheless, he took the view that nothing which the applicant had said could have the effect of impugning their evidence, putting aside legitimate criticisms which could be made as to their evidence and its quality. His Honour was not, however, prepared to accept the parts of their evidence which supported the applicant's case and to reject parts which did not, notwithstanding the caution which had to be adopted to their evidence, given that they were accomplices.

1. His Honour accepted the Crown's concession that the evidence had not established that the applicant had entered the Club before the offence using a false name and address. He declined to make any finding as to which offender was then 'more substantially casing the place out', which he considered was subsumed in his finding as to who the organiser of this criminal enterprise was.

1. His Honour also rejected the assertion that at the earlier trial he had made a ruling that the evidence of Mr Yaacoubian could not go to the jury because it was 'so unreliable and probably the result of an interest in attempting to mitigate his own role and/or justify his involvement'. He explained that he had then had doubts that the police had taken all reasonable steps to secure Mr Yaacoubian's attendance, without success and further, that he considered that the probative value of the evidence was outweighed by unfair prejudice to the applicant, because his account could not be tested by cross-examination and that as a result, there was a risk that the jury could misuse the evidence.

1. His Honour noted that Mr Yaacoubian's untested assertion that it was the applicant who had approached him to become involved was consistent with the sworn evidence of the other co-accused as to how they were approached. He thus concluded that the applicant had also approached Mr Yaacoubian to become involved. He also accepted the evidence of Mr Balian that the applicant had initiated the plan to rob the Club and had organised a number of essential steps taken before the robbery, in which he found that Mr Balian had assisted, including by the acquisition of a firearm and the balaclavas and in helping to case the premises.

1. His Honour rejected the submission that Mr Balian's role had been significantly underplayed by the Crown or that the proper starting point for the applicant's sentence was equivalent to that of Mr Balian, having considered their respective roles.

1. He was satisfied beyond reasonable doubt that the applicant, along perhaps with Mr Koupilian, was the principal who selected the venue to be robbed, formulated or assisted in formulating the plan to be implemented, enlisted the aid of others and dispensed the proceeds, to at least some of the co-offenders. He thus considered that the applicant was one step above Mr Balian in the enterprise and accordingly rejected the contention that the proper starting point for their sentences should be equivalent.

1. His Honour noted in relation to the evidence as to the acquisition of the weapon that Mr Balian's role had been to purchase a firearm after the applicant had attempted to acquire a gun, but had been robbed in the process. He noted that this would not have been known, but for Mr Balian's evidence. It was an admission made against interest, which he had volunteered. There were others. His evidence was that he and the applicant were friends at school. The applicant had told him about the robbery about a month before. He wanted Mr Balian to be one of the principal perpetrators, but he declined. He did agree to become the driver and attended a number of meetings with the applicant and others involved, beforehand. It was the applicant and Mr Koupilian who were giving the directions. He helped acquire a firearm after the applicant had tried unsuccessfully to get one. He also suggested where balaclavas could be obtained from a ski shop at Chatswood.

1. Mr Balian attended the Club on 4 March with the offender, who wanted to look at the window and cameras. Because the window was too thick to smash, the applicant got a glazier to pull it out at night. The applicant informed him when the offence was to occur. He helped arrange a safe house near the Club and received $1,500 for his assistance.

1. His Honour also had regard to Mr Berberian's evidence that he knew both the applicant and Mr Balian from school. It was the applicant who told him about the offence a few days beforehand, and asked for his help as a lookout for $1,000. He told him where to meet on the night of the robbery and spoke to him some 5 days later and ultimately paid the $1,000 as promised. His Honour considered that evidence supported his conclusion as to Mr Balian's role.

1. His Honour accepted that how Mr Balian had supplied information to police had not been straightforward or entirely forthcoming, having at early stages of the investigations withheld evidence and having later supplied evidence against those whom he knew police were aware of. Nevertheless, he noted that his evidence was consistent with that of other offenders and that such help as he had given, related to less significant parts of the criminal enterprise. His Honour compared the applicant's selection of the target, casing the premises, arranging the point of entry, enlisting a glazier and distributing the proceeds, with Mr Balian sourcing the balaclavas, driving to and from the Club and acquiring one of the weapons ultimately used.

1. His Honour also considered relevant subjective matters, including the applicant's record, as well as the report of the psychologist Ms Hopkins, which provided information as to his personal background. That included information as to his modest alcohol use between 16 and 20 years of age; increasing consumption of marijuana from age 18; and cocaine use from age 19; as well as a gambling problem developed from age 18. This problem resulted in the applicant at one time using his entire financial resources at the Star City Casino and later gambling up to $15,000 in one hand at the Crown Casino in Melbourne, as well as gambling with considerable borrowings from his parents and brother. His Honour found that while casino records in evidence established gambling of some $123,750 in 2008 and winnings of $41,435, they did not establish the extent of the losses the applicant claimed to have suffered shortly before this offence in the history given to the psychologist.

1. His Honour also noted that the account given of the applicant's knowledge of the firearm used in the offence did not accord with the evidence at trial, consistent with the false evidence he had earlier given. His Honour concluded from this evidence that the applicant had neither remorse nor an acceptance of responsibility for his offence, noting the approach he had adopted to the sentencing proceedings, namely a disclosure of only that which was known. In the result his Honour was reticent to accept material which the applicant put forward, which did not have independent support. This had adverse consequences for his assessment of the applicant's good intentions and rehabilitation. Absent sworn evidence his Honour did not accept that what the applicant had told the psychologist as to his contrition was honest. Nor did he accept a handwritten letter expressing his remorse to have been given honestly and bona fide.

1. His Honour observed that the applicant had gambled over $110,000 per year in both 2008 and 2009, which explained his resort to unlawful activities to acquire the funds he needed. He also noted the evidence that he had attended the Crown Casino with co-offenders, which he considered supported the proposition that he had had a significant role in eliciting their assistance.

1. In considering aggravating and mitigating matters, his Honour took into account the actual use of violence and the fact that the robbery was committed in company, while the applicant was on conditional liberty. As to mitigating matters, his Honour made no positive findings as to either rehabilitation or the possibility of re-offending. Nor did his Honour accept the case advanced that leniency was warranted by reason of difficulties being experienced in custody as the result of the applicant's orthodontic problems.

1. His Honour took account of the factors identified in the guideline judgment R vHenry [1999] NSWCCA 111, (1999) 46 NSWLR 346, which is directed at the s 97(1) armed robbery offence and identified mitigating and aggravating factors to be taken into account in sentencing for such offences. He noted that the applicant was a comparatively young offender; that he had a significant, albeit not a long criminal record; the use of a weapon; significant planning; and actual violence, albeit perpetrated on a person involved in the criminal activity, who 'may well have expected it to happen'. He also considered the effect that the violence had on Mr Lee, who was clearly in a vulnerable position, as well as the moderate amount stolen; the use of the firearm; and the number of offenders involved.

1. After reiterating the reasons why he had concluded that the applicant's role was more significant than that of Mr Balian, who had not had offences on a Form 1 to take into account, his Honour concluded that the seriousness of what had been a carefully planned, calculated and violent robbery which but for the time lock safe would have secured greater rewards was high. It called for significant recognition of special and general deterrence in the sentence imposed. Special circumstances were found, recognising the applicant's youth and his need for rehabilitation to help overcome his drug and alcohol and gambling addictions. The result was that a longer than normal non-parole period was imposed.

1. The 10 year sentence imposed after a 10% discount, with a 7 year non-parole period was fixed to commence from the date the applicant was taken into custody on 9 October 2009.

Ground 1 - His Honour erred in finding that the offence was aggravated by the security guard, a co-offender, being shot

1. The applicant conceded that his Honour's approach that the most relevant sentence for him to consider for comparative purposes was that imposed on Mr Balian was correct. It was submitted, however, that neither the s 97(2) offence for which the applicant was being sentenced, nor the s 33 offence being taken into account on the Form 1 involved the wounding of the security guard. That was because it was found that he had been complicit in the pre-planning of the offence. It was thus argued that his Honour had erred in concluding that the seriousness of the offence was aggravated by the fact that a person was shot.

1. It was also argued that Frearson DCJ had adopted the correct approach when sentencing Mr Balian, when he observed:

"I do acknowledge that the offender is not to be punished for the shooting of the security guard and I disregard that aspect. He is to be punished for the robbery in which he participated, a robbery in which he was well aware that the persons who went in to perform the robbery were armed. I appreciate that I do not aggravate the offence by reason of the bare elements of the offence which obviously includes the robbers being armed. But I should add though that it was a robbery that involved some actual shots being discharged. It seemed to me that I can take into account the actual violence that was perpetrated and the actual things that happened in terms of discharging of shots but not the fact that the security officer was wounded and I disregard that latter aspect."

1. There are two difficulties with the applicant's reliance on these remarks. The first, that Lakatos DCJ wrongly took a different view to that of Frearson DCJ, is not made out by a fair reading of his Honour's sentencing remarks. The second, that it is not clear that Frearson DCJ's approach was correct.

1. The applicant was being sentenced for an offence under s 97(2) of robbery while armed with a dangerous weapon. The offences established by s 97 of the Crimes Act are:

"97 Robbery etc or stopping a mail, being armed or in company

(1) Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person,

robs, or assaults with intent to rob, any person, or stops any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same, shall be liable to imprisonment for twenty years.

(2) Aggravated offence

A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) when armed with a dangerous weapon. A person convicted of an offence under this subsection is liable to imprisonment for 25 years."

1. In determining this sentence his Honour had regard to the R v Henry guideline judgement, where Spigelman CJ identified at [162] s 97(1) cases with common characteristics warranting a custodial sentence in the range of 4 and 5 years. They 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."

1. Spigelman CJ also discussed mitigating and aggravating factors which would warrant sentences falling below or above that range:

"169 Aggravating and mitigating factors will justify a sentence below or above the range, as this Court's prior decisions indicate. The narrow range is a starting point.

170 In addition to factors which may arise in any case eg youth, offender's criminal record, cooperation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include:

(i) Nature of the weapon

(ii) Vulnerability of the victim

(iii) Position on a scale of impulsiveness/planning

(iv) Intensity of threat, or actual use, of force

(v) Number of offenders

(vi) Amount taken

(vii) Effect on victim(s)"

1. That approach accords with the requirements of the Crimes (Sentencing Procedure) Act 1999 (NSW), which requires that relevant and known mitigating and aggravating factors to be taken into account on sentencing. They include that the offence involved the actual or threatened use of violence (s 21A(3)(b))and the actual or threatened use of a weapon (s 21A(3)(c)).

1. Here the evidence established that not only were the applicant and Mr Koupilian armed with guns, but that threatened and actual violence was used towards both Mr Lee and Mr Yaacoubian, who were both taken to the safe, pushed to the ground and gaffer taped. Mr Lee was then threatened that he would be killed and Mr Yaacoubian was actually shot. That was done in order not only to help intimidate Mr Lee, but also to conceal Mr Yaacoubian's involvement in the robbery and to help him further his other aim, of falsely making a compensation claim from his employer. That was plainly to be a part of his reward for his participation in the robbery.

1. That it was planned by the co-offenders, who included Mr Yaacoubian, that he would be shot, did not make this evidence irrelevant to the sentencing task which his Honour had to undertake. To the contrary, it plainly revealed aggravating matters which did not form an element of the s 97(2) offence. It was evidence which could not properly be ignored. Nor could it be suggested that taking these matters into account would have been wrong, because it would have warranted the applicant's conviction with respect to a more serious offence, contrary to the principles stated in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.

1. Under s 97(1), a robbery offence carries a maximum sentence of 20 years imprisonment. Such an offence is aggravated if carried out by a person armed with a dangerous weapon, in which event the maximum penalty is 25 years. Under s 98, an offender who commits a robbery when so armed and also immediately before, or at the time of, or immediately after the robbery, also wounds, or inflicts grievous bodily harm upon that person, is also liable to a maximum term of imprisonment of 25 years.

1. It follows that if his Honour had taken the shooting of Mr Yaacoubian into account as an aggravating matter, he would not have erred. It does not, however, appear that he did so. His Honour not only considered the sentence imposed by Frearson DCJ on Mr Balian, he said a relevant aggravating factor was the use of violence, noting that:

"A weapon was used...there was actual violence rather than a threat of it albeit I note that the violence was perpetrated on a person, so the Crown contends and I accept was party to this criminal activity and may well have expected it to have happened. However, I am bound to take into account the effect that such violence would have had on Mr Lee who observed it occurring and did not know if it was indeed the case that this was an inside job. The victim was clearly in a vulnerable position, he being a Bar Manager at a hotel when, on that occasion, there was nobody else present."

1. Contrary to his Honour's observations it was in fact common ground that Mr Yaacoubian had consented to being shot. His Honour, however, finally identified one of the key features of the offence to have been 'the use of a loaded firearm and its discharge, placing the victim in fear and ensuring his compliance'. That was clearly a reference to Mr Lee, not Mr Yaacoubian.

1. In so approaching this sentencing task his Honour did not fall into the error on which the applicant relied. In the result this ground was not established.

Ground 2 - The applicant had a justifiable sense of grievance given the degree of disparity in the starting point adopted by his Honour, in relative terms to that adopted with the co-offender Balian

1. The applicant did not challenge his Honour's findings that he was one of the principals in this criminal enterprise, and thus one step higher in the hierarchy than Mr Balian, or that this had to be taken into account in this sentencing exercise. That the s 33 offence also had to be taken into account in the sentence imposed upon him, with the result an increase in the relative starting point of his sentence, was also accepted. It was, however, submitted that the disparity in the starting points for the two sentencing exercises, of 8 years, 6 months in Mr Balian's case and 10 years in the applicant's was too great, despite these differences.

1. The applicant's case was that Mr Balian had been:

"i. Involved in the planning of the robbery and prior surveillance of the target.

ii. He drove on three occasions to meet the security guard.

iii. He organised the gun and purchased the balaclavas.

iv. Agreed to drive the getaway car and arranged the safe house; and

v. While he distanced himself from the actual events inside the club he knew the plan was that the security guard was to be shot and the manager threatened. Further, by being outside he minimized his risk of exposure to detection."

1. Mr Balian also knew that it was planned that Mr Yaacoubian would be shot. He was otherwise a willing participant in the robbery he had helped plan. It was submitted that it followed that Mr Balian's level of criminality was thus not substantially lower than that of the applicant. It was also relevant that he had a significantly more serious criminal record than that of the applicant, which together should have resulted in a lower sentence than that imposed on the applicant.

1. At the time of the robbery the applicant, who was aged 20 years was subject to two bonds for driving offences, while Mr Balian, who was aged 22 years was on parole for armed robbery, having been released to 15 months parole on 15 February 2008. Mr Balian was thus 2 years older than the applicant and had a more serious record, having already served terms of imprisonment for break enter and steal offences, while the applicant had only a robbery with offensive weapon offence as a juvenile, for which he was ordered to serve 40 hours community service, an affray for which he had a s 9 bond and driving offences. It was argued that this difference should have been reflected in a lower relative starting point for the applicant's offence. The evidence as to problems he was experiencing with orthodontic problems should also have had an impact on that outcome.

1. In the result the applicant submitted that his Honour had not properly observed the principle of parity in sentencing, leaving him with a justifiable sense of grievance, as discussed in Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540.

1. In that case Campbell JA referred to what was discussed by Gibbs CJ (with whom Wilson J agreed) in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 as to the operation of the parity principle in the case of two people who had co-operated in the one criminal enterprise, although playing different roles in it. There it was observed at 609:

"The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account." (emphasis added)

1. Those considerations explain the difference in the sentences imposed on these two offenders, as does the Form 1 offence for which the applicant was being sentenced. As reiterated in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [31]:

"The sense of grievance necessary to attract appellate intervention [in a severity appeal] with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise."

1. This was unquestionably a very serious, planned offence committed by a number of offenders, the younger applicant being found to have been one of the principals and Mr Balian, who had a more serious record and was on parole, having taken a lesser role in the enterprise. The sentence imposed on Mr Balian had to reflect the common purpose which he and his co-offenders had pursued and that they were to be sentenced for the full range of the criminal acts done by any of them in carrying out that purpose, but he was not necessarily to receive the same punishment as would have been appropriate, if he had personally performed all of those acts (see R v Wright [2009] NSWCCA 3 at [28] - [32]). Importantly in this case he was not one of those involved in the repeated discharge of the firearm and the shooting engaged in to wound Mr Yaacoubian and to intimidate Mr Lee. That had to be taken into account when Mr Balian was sentenced.

1. That the applicant was personally involved in all of these acts did have to be taken into account when he was sentenced, as did his greater role in the enterprise. That had to result in a higher sentence in his case.

1. Further, in this case, not only were the circumstances in which their pleas were entered such that in the applicant's case only a discount of 10% was warranted, while in Mr Balian's case a 55% discount was warranted, but very different conclusions were reached as to the evidence given by Mr Balian, which was accepted and the views reached as to the reliability of the information put before the court on sentencing by the applicant, who had earlier given false evidence at the aborted trial and had not himself given evidence at the sentencing hearing. That had an impact on his Honour's approach to the evidence as to his personal circumstances and the relevant mitigating matters which had to be taken into account when sentencing the applicant, which did not arise in Mr Balian's case.

1. That this Honour erred in the conclusions which he reached, so as to have given rise to a justifiable sense of grievance on the applicant's part, was not shown. As Spigelman CJ observed in Mulato v R [2006] NSWCCA 282 (Simpson J agreeing) a (46):

"Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour."

1. That his Honour's characterisation of the applicant's role and the acts for which he had to be held accountable and how that should be reflected in the sentence imposed upon him were wrong, was not established. His Honour's conclusions accorded with those reached by Frearson DCJ, who found that Mr Balian's role had been limited, namely that of a driver who chose not to go into the Club. While he was a participant in a well planned armed robbery involving a number of offenders and threatened and foreseeable violence, this was accepted as providing some limited amelioration of his sentence. Such a conclusion was not available to the applicant.

1. The differences in the two offenders' respective criminal records was apparent and a relevant matter taken into account, but in the face of the other matters which had to be taken into account in this sentencing exercise, including the other aggravating and mitigating matters which his Honour discussed and the Form 1 offence, that his Honour erred in rejecting the outcome for which the applicant contended and imposing the higher sentence which resulted, has not been established.

1. It may not be overlooked that the increase in the sentence warranted by the Form 1 offence was not necessarily small. It was a serious offence carrying a maximum penalty of 10 years. As Hoeben J discussed in Dionys v R [2011] NSWCCA 272 at [64] - [65]:

"64 The observations of Spigelman CJ in the guideline case go further than was set out in the applicant's submissions. The following extracts indicate his Honour's view as to the extent to which Form 1 matters can affect the length of a sentence:

"18 A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (See e.g. The Queen v White (1981) 28 SASR 9 at 13; Murrell v The Queen [1985] FCA 14; (1985) 4 FCR 168 at 179 per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372.)

...

42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.

43 I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence."

65 What is clear from the above paragraphs is that while the Court is sentencing only for the principal offence and not for the Form 1 offences, the entire point of the process is to impose a longer sentence and that the additional component may not be small. While not excluding other considerations, the Chief Justice referred specifically to greater weight being given to personal deterrence and to "the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed."

1. In this case the increase in the sentence imposed on the applicant to reflect the serious Form 1 offence which was being taken into account, plainly had to result in a substantial increase in the sentence which would otherwise have been imposed upon him. His Honour correctly concluded that the sentence had to have particular regard to both elements of general and specific deterrence. In the result, in my view, it must also be concluded that this ground was not established.

Orders

1. For these reasons, I would make the following orders:

1. Leave to appeal allowed.

2. Appeal dismissed.

1. BARR AJ: I agree with Schmidt J.

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Decision last updated: 20 February 2014