XX v R

[2018] NSWCCA 112

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	XX v R [2018] NSWCCA 112
Hearing dates:	11 May 2018
Date of orders:	09 July 2018
Decision date:	09 July 2018
Before:	White JA at [1] Johnson J at [2] Harrison J at [3]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – robbery while armed with a dangerous weapon – assault with intent to rob while armed with a dangerous weapon – possess unauthorised pistol taken into account on a Form 1 – whether sentence manifestly excessive – whether starting points for each offence too high – whether sentences consistent with comparable cases – where offender received 45 percent discount – where no error demonstrated – leave to appeal granted but appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW), s 97(2) Firearms Act 1996 (NSW), s 7(1)
Cases Cited:	Baleiovalau v R [2015] NSWCCA 305 Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hudson v R [2007] NSWCCA 302 Hudson v R [2016] NSWCCA 30 Hughes v R [2018] NSWCCA 2 Johnson v R; Moody v R [2010] NSWCCA 124 Legge v R [2007] NSWCCA 244 Moore v R [2010] NSWCCA 188 R v Davies [2015] NSWCCA 224 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Jurisic (1998) 45 NSWLR 209 R v Majstrovic [2000] NSWCCA 420 Robertson v R [2017] NSWCCA 205 Somba v R [2012] NSWCCA 214 The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Category:	Principal judgment
Parties:	XX (Applicant) Regina (Respondent)
Representation:	Counsel: L Fernandez (Applicant) B Hatfield (Respondent)   Solicitors: Younes + Espiner Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/167118
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 18 July 2017 Before: Hoy DCJ File Number(s): 2016/17560 2016/167118

Judgment

1. WHITE JA: I agree with Harrison J.

2. JOHNSON J: I agree with Harrison J.

3. HARRISON J: The applicant seeks leave to appeal against the severity of two sentences imposed upon him by Hoy DCJ in the District Court of New South Wales on 18 July 2017. The single ground of appeal is that the sentences were manifestly excessive.

4. The applicant was sentenced to an overall period of imprisonment of 5 years and 6 months with a non-parole period of 3 years and 8 months. His Honour imposed the following individual sentences:

Count 1: Robbery while armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 to a term of imprisonment of 5 years and 6 months with a non-parole period of 3 years and 6 months commencing on 18 January 2016 and expiring on 17 July 2019 and a balance of term expiring on 17 July 2021. A further offence of possess unauthorised pistol contrary to s 7(1) of the Firearms Act 1996 was taken into account on a Form 1.

Count 2: Assault with intent to rob while armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 to a term of imprisonment of 4 years and 6 months with a non-parole period of 3 years and 2 months commencing on 18 July 2016 and expiring on 17 September 2019 with a balance of term expiring on 17 January 2021.

5. Each sentence imposed on the applicant was discounted by 45 percent, to take account of his plea of guilty and assistance to authorities. The starting point for Count 1 and the Form 1 matter was therefore 10 years imprisonment with a non-parole period of 6 years, 4 months and 10 days. The starting point for Count 2 was 8 years, 2 months and 5 days with a non-parole period of 5 years, 9 months and 4 days.

6. The applicant contended that the sentences were plainly unreasonable and unjust because:

1. The starting point for each offence was too high, and was inconsistent with the sentencing judge’s findings in relation to objective seriousness and the applicant’s compelling subjective case; and

2. The sentences imposed are not comparable with other sentences for similar offences of the same type. The lack of consistency with other sentences indicates that the sentencing judge did not apply the relevant legal principles: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [49].

7. The applicant submitted that manifest excess is established having regard to:

1. The maximum penalty for each offence, which was 25 years imprisonment.

2. The guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111.

3. The sentencing judge’s assessment of the objective seriousness of each offence.

4. The applicant’s subjective case.

Factual background

Count 1

8. On 18 January 2016 at around 8.30am the applicant went into a pharmacy wearing a black balaclava and gloves and carrying a silver replica pistol. He walked up to the counter, held out the pistol, and told the staff to open the safe. The staff eventually handed him $1,400 in cash. The applicant asked the staff to open a second safe, which was empty. The applicant then left the pharmacy and got into a white car, driven by an accomplice, which had concealed number plates.

Form 1

9. At around 3.15pm on the same day the applicant was in the back seat of a silver car that was stopped and searched by police. Police found a silver coloured replica pistol under the applicant’s seat.

Count 2

10. This offence took place at around 1.00pm on the same day. The applicant went into a jewellery shop, wearing a black balaclava and gloves. He took out a silver replica pistol and told the staff in the shop to, “Put the money and gold in the bag if you want to be safe”. The staff replied to him in Arabic, telling him that he could take whatever he wanted. The staff said they thought that the applicant understood what they had said, but the applicant rushed out of the shop without taking anything.

Findings

11. With respect to Count 1 his Honour found that:

1. there was considerable planning involved, including a disguise, a getaway car with the number plates obscured, an accomplice and insider knowledge.

2. the amount taken was considerable, although less than the applicant anticipated.

3. the Crown case was not something the sentencing judge could categorise as an otherwise strong one.

12. With respect to Count 2 his Honour found that:

1. this offence was more impulsive and opportunistic than Count 1.

2. the applicant was wearing a disguise and had a getaway vehicle.

13. With respect to both offences, his Honour found that:

1. the weapon used by the applicant was a replica pistol that was not capable of killing or inflicting serious injury.

2. the use of a replica pistol in the course of a robbery is less serious than the use of an actual pistol, but a sentence for a robbery involving a replica pistol should recognise that the use of the weapon was designed to strike fear into the victims, citing R v Majstrovic [2000] NSWCCA 420 at [9]–[10].

3. the weapon was used for the purpose of making the victims feel like they were at risk of being killed or injured.

4. the victims were vulnerable, which was an aggravating factor.

5. no actual violence was used or inflicted upon the victims.

Subjective circumstances

14. The applicant was diagnosed with Crohn’s Disease at 12 years of age, and he had multiple surgeries until he was 23. He still managed to complete year 10 at TAFE. He had a long history of depression as a result of this condition. The applicant had an extensive criminal record, which included similar offences for which he has spent time in custody. This record did not assist him. The applicant had a significant falling out with a gang of criminals with which he had been involved relating to illegal drugs and a debt. The applicant said that his motivation for the offences was to gain money to repay this debt. The applicant was consequently shot in the leg by the gang in 2013, apparently for retribution and/or recovery of the monies. He remained fearful for his safety and said that he possessed the unauthorised or replica pistol because of his anxiety and hyper-vigilance. He was seeing a psychologist for some time after the shooting. His Honour accepted that he demonstrated contrition and genuine remorse. The applicant provided significant assistance to authorities, and signed an undertaking to provide further assistance. He was not on parole or conditional liberty at the time he committed the offences. The applicant had spent approximately 18 months in custody at the time of sentence, and his custodial record was good. The applicant had previously used drugs but had been drug free since going into custody.

15. His Honour found special circumstances because of the accumulation of sentences, the applicant’s protective status in custody, his adverse health, and the need for an extended period of rehabilitation.

Consideration

16. His Honour assessed the objective seriousness of Count 1 as just below the mid-range. He considered Count 2 to be about half way between the middle and low range of objective seriousness. The applicant does not challenge these findings.

17. The applicant’s principal contention was that the sentences imposed by his Honour could not withstand scrutiny having regard to sentencing trends for comparable offences. He maintained that sentences imposed in the past, in relevantly similar circumstances, provide significant guidance to sentencing judges, even accepting that they give rise to no binding precedent: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41]; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [29]; Robertson v R [2017] NSWCCA 205 at [69].

18. Comparable cases can and should provide guidance as to the identification and application of relevant sentencing principles. Analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence: The Queen v Pham at [24] and [26].

19. In Barbaro v The Queen; Zirilli v The Queen, French CJ, Hayne, Kiefel and Bell JJ said at [41]:

“As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect …”

20. It is well-established that in order to succeed on this ground, an applicant must demonstrate that the sentence passed was unreasonable or plainly unjust. The relevant principles have been recently summarised by this Court in Hughes v R [2018] NSWCCA 2 at [86] as follows:

“[86] When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

(1)    appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2)    intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

(3)    it is not to the point that this Court might have exercised the sentencing discretion differently;

(4)    there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

(5)    it is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

21. In my opinion, it was open to his Honour to adopt the starting points for each sentence that the applicant has identified. This is so having regard to the maximum penalty of 25 years imprisonment for each offence and his Honour’s assessment of the objective seriousness of the two offences as well as the maximum penalty of 14 years for the offence taken into account on a Form 1. Nor do I consider that his Honour’s application of the principles dealing with general and specific deterrence can be challenged. Notwithstanding the fact that the two offences were separate and discrete acts of criminality, his Honour accumulated the sentences by only two months. It follows that the applicant’s imprisonment for Count 2 in practical terms amounted to only 2 months of the total non-parole period of 3 years and 8 months.

22. The applicant also contended that manifest excess could be established by having regard to the guideline judgment in R v Henry. This Court has emphasised that guideline judgments are not prescriptive. They do no more than provide a “useful statement of principle to assist trial judges to ensure consistency of sentencing with respect to particular kinds of offences”: see, eg, Legge v R [2007] NSWCCA 244 at [40]; R v Jurisic (1998) 45 NSWLR 209 at 220.

23. His Honour noted that there are some similarities and some differences between the circumstances in R v Henry and the present case. The following dissimilarities are significant for present purposes:

1. The applicant was convicted of an offence contrary to s 97(2) of the Crimes Act, which is a more serious iteration of the offence considered in R vHenry.

2. An offence contrary to s 7(1) of the Firearms Act, which has a maximum penalty of imprisonment for 14 years and a standard non-parole period of 4 years, was taken into account on a Form 1.

3. There was a higher degree of planning in the present case.

4. The applicant has an extensive criminal record.

24. The remarks on sentence demonstrate that his Honour adequately considered and took into account the guideline judgment. In my opinion, having regard to the considerable dissimilarities identified above, his Honour was entitled to impose a sentence in respect of count 1 that is significantly higher than the sentencing range referred to in R v Henry.

25. The applicant drew attention to a fairly extensive range of decided cases in this Court in support of the proposition that his Honour’s sentences were arguably anomalous. The facts in all of these cases are necessarily unique but the individual sentences imposed are collectively quite instructive. The examination of these several decisions is also considerably more illuminating than a bare reference to statistical sentencing patterns for like offences.

26. I am, however, unable to detect any relevant disconformity between the sentences imposed by his Honour in this case and the range of sentences imposed in the cases to which attention has been drawn. I accept that cases like R v Davies [2015] NSWCCA 224, Hudson v R [2007] NSWCCA 302 and Baleiovalau v R [2015] NSWCCA 305 involved the imposition of both lower head sentences and lower non-parole periods. These cases must of course be compared with others such as Hudson v R [2016] NSWCCA 30, Somba v R [2012] NSWCCA 214, Moore v R [2010] NSWCCA 188 and Johnson v R; Moody v R [2010] NSWCCA 124 in all of which sentences were imposed that were very much in line with the present case.

27. In order to succeed in this case, the applicant must demonstrate not merely that another judge might have come to a different conclusion but that no judge could reasonably have come to the same conclusion. Far from being able to establish this, the sentences imposed by his Honour were entirely open to him. The applicant does not suggest or assert that his Honour erred in any discrete way that vitiated the exercise of his sentencing discretion. I am unable otherwise to detect error in his Honour’s approach.

Orders

28. In my opinion, leave to appeal should be granted but the appeal should be dismissed.

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Decision last updated: 09 July 2018