Younan v The Queen
[2017] VSCA 12
•10 February 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0140
| NOURS YOUNAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 February 2017 |
| DATE OF JUDGMENT: | 10 February 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 12 |
| JUDGMENT APPEALED FROM: | DPP v Younan (Unreported, County Court of Victoria, Judge Tinney, 27 May 2016) |
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CRIMINAL LAW – Appeal – Sentence – Multiple serious armed robberies – Manifest excess – Full and frank admissions made – Without admissions insufficient evidence to charge – R v Ellis (1986) 6 NSWLR 603, R v Doran [2005] VSCA 271, JBM v The Queen [2013] VSCA 69, Adamson v The Queen (2015) 47 VR 268, applied – Guilty plea at early stage – Youthful offender – No prior convictions – Good prospects of rehabilitation – Current sentencing practice – R v Kilic [2016] HCA 48, applied – Abdou and Chebib v The Queen [2015] VSCA 359, Kruzenga v The Queen [2014] VSCA 10, DPP v Ghazi [2015] VSCA 188, considered – Sentence of 9 years and 9 months manifestly excessive – Applicant resentenced to 7 years’ imprisonment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C T Carr | Theo Magazis & Associates |
| For the Crown | Mr C B Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
FERGUSON JA
The applicant pleaded guilty to 5 charges of armed robbery, one charge of attempted armed robbery, and one charge of theft, arising out of a series of armed robberies committed by the applicant and various co-offenders in the period between 7 December 2014 and 18 February 2015. Following a plea on 19 May 2016, the applicant was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Attempted armed robbery (s 321M Crimes Act 1958)
20 y (s 321P Crimes Act 1958)
1 year 6 months
3 months
2
Armed robbery (s 75A(1) Crimes Act 1958)
25 y (s 75A(2) Crimes Act 1958)
4 years 6 months
1 year
3
Armed robbery (s 75A(1) Crimes Act 1958)
25 y (s 75A(2) Crimes Act 1958)
5 years
1 year
4
Armed robbery (s 75A(1) Crimes Act 1958)
25 y (s 75A(2) Crimes Act 1958)
5 years
Base
5
Theft
(s 74 Crimes Act 1958)10 y (s 74 Crimes Act 1958)
1 year
3 months
6
Armed robbery (s 75A(1) Crimes Act 1958)
25 y (s 75A(2) Crimes Act 1958)
4 years 6 months
1 year
7
Armed robbery (s 75A(1) Crimes Act 1958)
25 y (s 75A(2) Crimes Act 1958)
4 years
1 year 3 months
Total Effective Sentence:
9 years 9 months
Non-Parole Period:
6 years 6 months
Pre-sentence Detention Declared:
48 days
6AAA Statement:
15 years (non-parole period of 11 years 6 months)
The applicant now appeals against sentence on the sole ground[1] that each of the sentences imposed, the orders for cumulation, the total effective sentence, and the non-parole period are all manifestly excessive.
[1]The original notice of appeal filed listed three grounds of appeal. Grounds 2 and 3 were abandoned prior to the oral hearing of the appeal.
For the reasons below, we would allow the appeal, and resentence the applicant.
Circumstances of offending
The applicant was born in Iraq, and immigrated to Australia with his family when he was 12 years old. He was 22 at the time of the offending.
The seven charges arise from a series of armed robberies committed by the applicant and co-offenders in the period between 7 December 2014 and 18 February 2015. We will briefly set out the circumstances of each armed robbery the subject of the charges.
Charge 1 attempted armed robbery at the Westside Hotel (7 December 2014)
On Sunday, 7 December 2014, at 2:43 am, the applicant and an unknown co-offender travelled to the Westside Hotel in Laverton in a small car. The two attempted to force open the automatic doors of the premises, using a jemmy bar. After several minutes they gave up and departed.
Charge 2 armed robbery at the Westside Hotel (8 December 2014)
On 8 December 2014, at 7:22 pm, the applicant and the same unknown co-offender again travelled to the Westside Hotel in Laverton in the same small car. The applicant carried a long-arm rifle. The co-offender carried a sword. The applicant performed the role of ‘crowd control’ — that is, controlling the actions and movements of persons in the premises. The co-offender took money from the change counter of the gaming area; and then threatened staff to open the strong room and safe, where he also took money. They then fled.
A total of $773 was taken, and the applicant received between $200 and $300 of this total.
Charge 3 armed robbery at Club Italia 16 December 2014
On 16 December 2014 at 10:16 pm, the applicant, co-offender Fonokalafi, and an unknown co-offender travelled to Club Italia in Sunshine North in a small car. The applicant carried a small black handgun. Fonokalafi carried a long-arm rifle. The unknown co-offender carried a green shopping bag and was unarmed.
The three forced exiting patrons back into the venue. The applicant controlled staff while a co-offender stole money; and the applicant then directed staff to open the strongroom and safe. The three then fled.
A total of $53,945 was taken, and the applicant received between $2000 and $3000 of this total.
Charge 4 armed robbery at Reggio Calabria Club (12 February 2015)
On 12 February 2015, the applicant and two unknown co-offenders approached the Reggio Calabria Club in Parkville. The applicant carried a small black handgun. One of the unknown offenders carried a sword or machete. The third carried a bright green bag.
The applicant and a co-offender entered a doorway leading to an area behind the change counter; and the applicant threatened staff with the gun and demanded money. The third co-offender controlled patrons at the venue. The applicant then demanded access to the strongroom and safe. Several bags of cash were taken. The three then fled.
A total of $70,000 was taken, and the applicant received between $5000 to $7000 of this total.
Charge 5 theft of a motor vehicle, and charge 6 armed robbery at Casa D’Abruzzo (18 February 2015)
On 18 February 2015, the applicant, Esho, Kakos, and an unknown person travelled by car (a Toyota Camry) to an intersection in Craigieburn, where the applicant, Kakos and the unknown person exited the Camry and entered a stolen Volkswagen. They then drove the stolen Volkswagen to Casa D’Abruzzo in Epping. (Charge 5, theft of a motor vehicle.)
At around 9:00 pm, the three entered the venue. The applicant carried a black handgun. Kakos carried a large machete. The unknown co-offender carried a crowbar and black duffle bag. They made their way to the gaming area and the cashier counter therein, where they took money; and then demanded staff give them access to the strongroom, which staff did. (Charge 6, armed robbery.)
A total of $6061 was stolen, of which the applicant received between $200 and $300.
Charge 7 armed robbery of Ms Debbie Coulson travelling in her Suzuki vehicle (18 February 2015)
After the offending above on 18 February 2015, at around 9:10 pm, the applicant, Kakos and the unknown offender were driving the stolen Volkswagen along Craigieburn Road. They overtook DC, who was driving a Suzuki and whose 12 year old daughter was a passenger in the vehicle. A kilometre onwards, the Volkswagen slowed due to engine failure and as the Suzuki passed the Volkswagen, DC believed her vehicle was rammed and she pulled over. The three forced DC out of the Suzuki by threatening her (and at one point a handgun was pointed at her daughter’s head) and dragging her out by her hair; and then entered the Suzuki and fled. DC thought that her daughter remained in the Suzuki until she saw her daughter running away along the road moments later.
DC suffers ongoing pain across her shoulders as a consequence of being dragged out of the vehicle.
Arrest, record of interview and plea
The applicant was contacted by police who wished to speak to him on 31 July 2015. He made an appointment to attend the station. During a record of interview he identified himself in CCTV still photographs from the relevant gaming venues as one of the robbers. He made frank admissions and was charged with the subject offences. The prosecution conceded that without his admissions they had insufficient evidence to charge him with the subject offences.
The applicant pleaded guilty to all offences at a committal mention case conference, it being the earliest opportunity to do so.
Sentencing remarks
The sentencing judge found the offending was terrifying and involved many victims. It was clear from the victim impact statements provided that the impact of the offending was significant.[2]
[2]DPP v Younan (Unreported, County Court of Victoria, Judge Tinney, 27 May 2016) [7]–[8] (‘Reasons’).
His Honour acknowledged the ‘strong utilitarian value’ of the applicant’s plea of guilty, given it was entered at the ‘very earliest opportunity.’[3] The judge also acknowledged the applicant’s co-operation with the police, and that absent his admissions, it would have been impossible for the police to prove the applicant’s offending. His Honour then went on to say of the admissions:
It is deserving of a demonstrable or sizeable reduction in its own right independent of the allowance made for the guilty plea. It is also relevant to my assessment of the degree of remorse and the weight to be given to specific deterrence.[4]
[3]Ibid [18].
[4]Ibid.
His Honour found the applicant was remorseful,[5] and that the prospect of rehabilitation was ‘pretty good’.[6] His Honour noted that while the offender was young, given the nature of the offending, ‘necessarily less weight is placed on your youth.’[7]
[5]Ibid [20].
[6]Ibid [24].
[7]Ibid [25].
The judge referred to the most recent Sentencing Advisory Council Snapshot,[8] as well as the Judicial College of Victoria sentencing manual. The judge considered the applicant’s conduct was akin to some of the ‘high range’ type offending referred to in the sentencing manual, as had been conceded by the applicant’s counsel on the plea. While referring to current sentencing practice, his Honour said:
Consideration of other cases however makes plain enough that which was conceded: that your offending was a good deal more serious than very many offences dealt with in the past by the courts. It is in my view offending which is well above the median in terms of offence seriousness, with a host of aggravating features. However, sentencing is not as simple as looking purely at the offending. I must have regard also to your individual circumstances and the various mitigatory considerations. This is one reason why other cases and statistics have significant and inherent limitations. There are always a myriad of differences between cases and offenders and I must pass an appropriate sentence in your case.[9]
[8]Sentencing Advisory Council, Sentencing Trends for Armed Robbery in the Higher Courts of Victoria 2008–09 to 2012–13 (Sentencing Advisory Council, Sentencing Snapshot 153, 26 June 2014.
[9]Reasons [28] (emphasis in original).
Ground 1
The applicant maintained that whilst the offending here was undoubtedly serious, each of the sentences imposed were manifestly excessive. The applicant’s mitigating features were ‘profound and powerful’, such that the sentence should have been significantly less than that which might otherwise have been appropriate.
The Crown accepts that the individual sentences here could be described as ‘heavy.’ Referring to the reasons of the High Court in R v Pham,[10] the Crown submitted that to observe that a sentence is ‘very heavy’ when compared with other sentences is not, without more, to conclude that it exceeds the bounds of the sentencer’s discretion.[11]
28 Section 5(2)(b) of the Sentencing Act 1991 requires a sentencing judge to have regard to ‘current sentencing practices.’ The evident purpose of that requirement is to promote consistency of approach in the sentencing of offenders.[12] In R v Kilic,[13] the High Court confirmed that where cases are comparable they will inform the sentencing judge’s obligation to achieve consistency in sentencing and in the application of relevant sentencing principles.[14] We are also mindful of the limitations of current sentencing practice as stated in a passage from this Court’s reasons in Kilic v The Queen,[15] that current sentencing practice as informed by sentences in comparable cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed.[16] With these considerations in mind it is necessary to examine the cases relied on by the applicant during the appeal.
[10](2015) 325 ALR 400.
[11]Ibid 412–413 [56].
[12]Sentencing Act 1991 s 1(a).
[13](2016) 339 ALR 30 (‘Kilic’).
[14]Ibid 36–37 [22].
[15][2015] VSCA 331 [48].
[16]The passage was referred to with apparent approval in the reasons of the High Court in Kilic [2016] HCA 48, 36–37 [22].
The applicant submits that the comparable cases set out below suggest that sentences of between two and a half to four years might be expected in cases of serious armed robberies involving firearms where large amounts of money are stolen and the offender is young and there are some mitigating features. Sentences of five to six years for offending of the same level of seriousness are said to be imposed where the offender is not youthful and there are no persuasive mitigating features.
The first of the cases relied upon by the applicant was Abdou and Chebib v The Queen.[17] The prisoner Abdou, who was between 18 and 20 years old at the time of offending, received 4 years and 4 months’ imprisonment (which included 876 days of pre-sentence detention) together with a CCO of 4 years with 600 hours of community service, for one attempted armed robbery and four armed robberies. He received a 4 year CCO for the attempted armed robbery; a 4 year CCO for the first armed robbery of the Furlan Club which involved firearms and a $43,000 yield; 2 years and 6 months’ imprisonment for the second armed robbery of the Furlan Club in which just under $9000 was stolen with a sawn-off shotgun; 3 years for armed robbery of the Manningham Club in which just under $6000 was taken using a rifle and sawn-off shotgun; 4 years CCO for armed robbery of a milk bar with an imitation semi-automatic handgun, and 6 months for criminal damage. The sentences imposed were regarded as lenient by this Court.
[17][2015] VSCA 359 (‘Abdou and Chebib’).
Chebib, who was also between 18 and 20 at the time of offending, was awaiting sentence at the time of offending, and was a leading participant/recruiter in the offending. He was resentenced by this Court to a total effective sentence of 8 years with a non-parole period of 5 years, which constituted individual sentences of 4 years for an armed robbery of the Boundary Hotel in which nearly $23,000 was stolen; 2 years for the first armed robbery of the Furlan Club with firearms in which over $43,000 was obtained; 4 years for the second armed robbery of the Furlan Club in which just under $9000 was stolen with a sawn-off shotgun; 5 years for armed robbery of the Manningham Club in which just under $6000 was taken using a rifle and sawn-off shotgun, and 6 months for criminal damage.
In Kruzenga v The Queen,[18] a sentence of 5 years’ imprisonment was considered to be within range for an armed robbery,[19] where the offending involved a premeditated bank robbery using a shotgun, which he had sawn-off for the purpose, in order to pay for his lawyers’ fees on other outstanding charges. The offender pleaded guilty, had no priors, and had good prospects of rehabilitation.
[18][2014] VSCA 10.
[19]As part of a total effective sentence of 6 years with a non-parole period of 3 years and 11 months.
Director of Public Prosecutions v Ghazi,[20] was a Director’s appeal against a sentence of three years’ detention in a youth justice detention centre on five charges of armed robbery, one charge of criminal damage, two charges of attempted armed robbery, one charge of obtaining property by deception and a summary offence of possession of a controlled weapon without excuse. The respondent in Ghazi was aged 17 years at the time of charges 1 and 2, 18 at the time of the commission of the remaining offences, and was the co-offender of Abdou and Chebib. The Director’s appeal against sentence was dismissed.
[20][2015] VSCA 188 (‘Ghazi’).
In Konamala v The Queen,[21] the sentence of 6 years for armed robbery,[22] was considered moderate, if not lenient, for one of a group of offenders who used ‘calculated savagery’,[23] including with a Taser and hammer, to overpower and restrain the occupants of a jewellery store, where $240,000 of jewellery and $29,000 in cash were taken.
[21][2016] VSCA 48 (‘Konamala’).
[22]As part of a total effective sentence of 8 years with a non-parole period of 5 years.
[23]Konamala [2016] VSCA 48 [38].
The applicant also referred to three county court decisions,[24] involving youthful offenders with no, or negligible prior matters. In Director of Public Prosecutions v Lahteenmaa,[25] the 27 year old with no prior convictions was sentenced to a 2 year CCO with 50 hours of community work for one charge of armed robbery, in which $24,000 was taken from the Manningham Club. The offender had given an undertaking to give evidence, and it was found that his role was to conduct reconnaissance on the premises.
[24]DPP v Lahteenma [2013] VCC 1529; DPP v Halabi [2013] VCC 1370; DPP v Elrajab [2014] VCC 1185.
[25][2013] VCC 1529.
In Director of Public Prosecutions v Halabi,[26] the 20 year old who had one prior Children’s court matter, received 3 years for one charge of armed robbery where firearms were used to rob $43,000 from the Furlan Club. He had pleaded guilty at an early stage and been attacked in custody because he had made a statement.
[26][2013] VCC 1370.
The final County Court decision referred to was the matter of Director of Public Prosecutions v Elrajab.[27]The offender in that matter was nearly 21 years old, and had no prior convictions. He was sentenced to 5 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months for a series of offences. His sentence consisted of 18 months for an attempted robbery of the Eltham Hotel with handguns and other weapons, 3 years and 6 months’ for an armed robbery of the Furlan Club using a sawn-off shot gun in which nearly $9000 was taken, 4 years for the armed robbery of the Manningham Club using a rifle and sawn-off shotgun in which just less than $6000 was obtained, and 18 months for a criminal damage charge.
[27][2014] VCC 1185.
Despite the very serious nature of this type of offending and the need to give appropriate weight to denunciation and general deterrence, all of the mitigating factors present in the cases referred to were also present in this case. There were however two additional mitigating feature present, which distinguished this case from all those cited. First, the applicant was willing to assist investigating police. Second, there was the very significant mitigating factor of his frank admissions which provided the only evidence that implicated him in the offending. As was recognised by the sentencing judge, and conceded by the Crown, the prosecution had no evidence to establish the applicant’s guilt without his admissions.
The right to a significant discount where an offender, by his admissions, provides proof as to his guilt of an offence which the prosecution could not otherwise have established is now well settled. Street CJ recognised in R v Ellis[28] that a significant added element of leniency arises from a confession of guilt in such circumstances.[29] The principle rests upon the policy of the criminal law to encourage a guilty person to come forward and make a confession of guilt to his offending. The principle and its rationale was affirmed by McHugh J in Ryan v The Queen.[30] Subsequently, in R v Doran,[31] Buchanan JA (with whom Eames and Nettle JJA agreed) observed that the appellant had voluntarily provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. His Honour considered it necessary that ‘the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions’.[32] The principle is now often described in Victorian courts as the ‘Doran discount’. The principle was enlivened in JBM v The Queen,[33] as the offences could not have been proved in the absence of the appellant’s co-operation and admissions. Weinberg JA, with whom Priest JA agreed, observed, citing Doran, that public policy demanded that the appellant receive a significant reduction in any sentence that might otherwise have been imposed.[34] In order to facilitate their successful prosecution, public policy requires that offenders should be encouraged to admit their crimes by granting them transparently substantial reductions in sentence where that occurs.
[28](1986) 6 NSWLR 603.
[29]Ibid 604.
[30](2001) 206 CLR 267, 272 [12]
[31][2005] VSCA 271 (‘Doran’).
[32]Ibid [14]
[33][2013] VSCA 69.
[34]Ibid [48].
The parameters of the discount afforded to an offender who made admissions in such circumstances was referred to in Adamson v The Queen,[35] the applicant having complained that the sentencing judge had not made adequate allowance for the admissions he made. The Court (Warren CJ, Redlich and Weinberg JJA), observed that although the sentencing judge did not state in his reasons that a substantial discount had been given on the offences, it was to be inferred from the sentences imposed on all the charges, that the judge had allowed a discount of between 30 per cent and 50 per cent on all those charges that depended upon his admissions.[36] There was no suggestion that such discounts were excessive.
[35](2015) 47 VR 268.
[36]Ibid 297 [78].
The sentencing judge stated that he intended to mitigate the sentences having regard to the applicant’s youth, his lack of prior offending, his remorse, and his ‘pretty good’ prospects of rehabilitation.[37] He also noted that the applicant’s admissions, which provided the basis for the establishment of his guilt, were ‘deserving of a demonstrable or sizeable reduction’ in his sentence.[38]
[37]Reasons [24].
[38]Ibid [18].
Notwithstanding that the Crown submitted that the judge was correct to place these offences in the higher category of seriousness, it accepted that the sentences in fact imposed were at the ‘higher end of the range’ and ‘heavy’, and that the ground of appeal warranted the grant of leave. Further, the Crown submitted that the powerful mitigating features required a ‘lower than usual non-parole period’. During oral submission, senior counsel contended however that when regard is had to the range of sentences that such serious offending would ordinarily attract, had there been no Doran discount, it could not be said, despite the cases relied upon by the applicant, that the individual sentences or total effective sentence were manifestly excessive.
We are unable to agree.
The applicant fell to be sentenced for very serious armed robberies. But the majority of sentences imposed in ‘like cases’ to which the applicant has referred, serve to demonstrate that when allowance is made for the constellation of powerful mitigating features here present, that the individual sentences and total sentence imposed do not fall within a sound exercise of the sentencing discretion. The unique mitigating factor of his critical admissions, which enabled the charges to be laid, in combination with the other powerful mitigating factors, namely his youth, the absence of any previous criminal history, his strong sense of remorse, his cooperation with investigators and early plea and his good prospects of rehabilitation, ought to have resulted in sentences that were significantly less than those imposed.
We would grant leave to appeal, allow the appeal and re sentence the applicant as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Attempted armed robbery (s 321M Crimes Act 1958)
20 y (s 321P Crimes Act 1958)
12 months
1 month
2
Armed robbery (s 75A(1) Crimes Act 1958)
25 y (s 75A(2) Crimes Act 1958)
3 years
9 months
3
Armed robbery (s 75A(1) Crimes Act 1958)
25 y (s 75A(2) Crimes Act 1958)
3 years 4 months
10 months
4
Armed robbery (s 75A(1) Crimes Act 1958)
25 y (s 75A(2) Crimes Act 1958)
3 years and 6 months
Base
5
Theft (s 74 Crimes Act 1958)
10 y (s 74 Crimes Act 1958)
8 months
2 months
6
Armed robbery (s 75A(1) Crimes Act 1958)
25 y (s 75A(2) Crimes Act 1958)
3 years 6 months
10 months
7
Armed robbery (s 75A(1) Crimes Act 1958)
25 y (s 75A(2) Crimes Act 1958)
3 years 6 months
10 months
Total Effective Sentence:
7 years
Non-Parole Period:
4 years
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8
12
0