Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hawat v R [2020] NSWCCA 121 Hearing dates: 6 May 2020 Decision date: 11 June 2020 Before: R A Hulme J at [1]; Fagan J at [48]; Hidden AJ at [49] Decision: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. Catchwords: CRIME – appeals – appeal against sentence – application of R v Henry guideline judgment – guideline not conflated with or used as starting point for assessment of objective seriousness – sequence of matters in judgment not necessarily sequence of judge's process of reasoning – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), ss 97(1), 114, 115, 192E(1) Cases Cited: Fedele v R [2015] NSWCCA 286 Grant v R [2014] NSWCCA 67 Kelly v R [2017] NSWCCA 82 Legge v R [2007] NSWCCA 244 McDonald v R [2015] NSWCCA 280 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 Tuncbilek v R [2020] NSWCCA 30 Yildiz v R [2020] NSWCCA 69 Category: Principal judgment Parties: Ahmed Hawat (Applicant) Regina (Respondent) Representation: Counsel: Ms J Paingakulam (Applicant) Mr C Curtis (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2017/315622 Decision under appeal Court or tribunal: District Court Date of Decision: 19 July 2019 Before: O'Brien AM DCJ File Number(s): 2017/315622 Judgment 1. R A HULME J: Mr Ahmed Hawat (the applicant) seeks leave to appeal in respect of a sentence imposed in the District Court at Campbelltown on 19 July 2019 by his Honour Judge O'Brien AM. 2. In respect of three offences of robbery whilst armed with an offensive weapon [1] his Honour imposed an aggregate sentence of 6 years and 6 months with a non-parole period of 4 years. 3. Had individual sentences been imposed, his Honour said they would have been 3 years and 9 months for each of the first and second offences and 4 years and 6 months for the third. (There was a reduction of 25% for early pleas of guilty.) 4. The applicant asked the judge to take into account three additional offences listed on a Form 1 document when assessing the sentence for the third armed robbery. These were: 1. Robbery whilst armed with an offensive weapon. 2. Fraud. [2] 3. Commit an offence described in s 114 of the Crimes Act (namely, being armed with an offensive weapon with intent to commit an indictable offence (robbery whilst armed with an offensive weapon)), having previously been convicted of an indictable offence (namely, robbery whilst armed with a dangerous weapon). [3] 1. The applicant seeks leave to appeal on a single ground: The sentencing judge erred in the manner which he applied the guideline in R v Henry to the sentencing exercise. The offences 1. All of the robberies were committed on Sydney metropolitan trains. Robbery whilst armed with an offensive weapon – Form 1 1. Mid-morning on Tuesday 3 October 2017 a 23-year-old man boarded a train and sat by himself on the lower level of a carriage. He was approached from behind by the applicant who grabbed his collar and held a knife to his back and shoulder area. The victim felt something sticking into his right shoulder. The applicant demanded that the victim take money out of his wallet and give it to him. The victim pleaded, "I'm just a student, please don't do anything to me". 2. The applicant took $160 and the victim's mobile phone. He told the victim to get out at the next station and threatened that he would cut his throat if he told anyone what had happened. Fraud – Form 1 1. A few hours later, the applicant used the victim's mobile phone and its banking app to make a cardless cash withdrawal of $110 at an ATM. Robbery whilst armed with an offensive weapon – Sequence 2 1. On the morning of Sunday 8 October 2017, a 27-year-old man boarded a train and soon after it departed he was approached by the applicant and robbed in a similar fashion to the incident five days earlier. A knife was held about 2cm from the victim's body. The victim told the applicant he did not have any cash. The applicant demanded his phone and bankcard and said, "Don't try to run away from me or otherwise I'm going to hurt you". The victim complied with the applicant's demands out of fear. Robbery whilst armed with an offensive weapon – Sequence 3 1. Less than two hours later, the applicant robbed a 22-year-old man on another train. The applicant sat next to the victim who thought that the applicant was behaving in an odd manner, appearing to be mumbling something incomprehensible to himself. The applicant asked the victim if he had any money to which the victim replied, "No". The applicant then reached into the victim's pocket and grabbed his wallet. When the victim grabbed the applicant's wrist the applicant produced a knife and pointed it at the victim's body. The victim put his hands up and the applicant said, "I'll get you if you make a noise". The applicant took the victim's wallet containing $90, a driver's licence, an Opal travel card and a bank debit card. He also took the victim's mobile phone, demanding the PIN code to unlock the phone, as well the PIN number for the victim's bank accounts. Robbery whilst armed with an offensive weapon – Sequence 4 1. On the morning of Tuesday 17 October 2017, a 28-year-old woman boarded a train and sat by herself. The applicant came and sat beside her. He produced a folding knife from his pocket and said, "Give me money or I will hurt you with this". The victim delayed in responding to this as she "froze from fear". Ultimately the applicant said, "Give me money or I will hurt you bad". The victim gave him $100 from her purse. He then demanded her phone but she explained she could not give it to him because it did not belong to her. When the train arrived at a station the applicant got up to leave, saying to the victim, "I will get off here. If you get off here, I will kill you". Armed with intent to commit indictable offence having previously been convicted of an indictable offence – Form 1 1. Police found the applicant the following day, 18 October 2017, on a train near Chester Hill Railway Station. He was in possession of a knife as well as the phone taken from the first victim and a number of Opal cards, one of which belonged to the third victim. He was arrested and taken to a police station where it was noted that he appeared to be drug affected. The applicant's background and personal circumstances 1. There is no ground asserting that the sentence is erroneously excessive or that his Honour erred in the manner in which he took into account any aspect of the subjective case. Accordingly, it is unnecessary to review all of the detail of the applicant's background and personal circumstances. 2. At the time of the offending the applicant was aged 33 and was on bail for other offences. 3. The applicant's criminal history included offences of stealing from the person and aggravated assault with intent to rob for which he was placed on probation by the Children's Court in 2002. His first term of imprisonment was one of 4 years with a non-parole period of 2 years and 6 months imposed in 2003 for two offences of aggravated sexual assault. He was sentenced to imprisonment for a total effective term of 8 years and 6 months with a non-parole component of 5 years and 6 months in 2005 for two offences of robbery whilst armed with a dangerous weapon with a further offence of the same type taken into account. 4. A life that had been marred by substance abuse, mental illness (schizophrenia) and an intellectual disability was prominent in the presentation of the applicant's subjective case. The learned judge referred to relevant aspects in his sentencing remarks, concluding as follows: [4] "Given all of the material and importantly having had an opportunity to observe him give evidence before me today, and meaning no disrespect, I am satisfied that the offender presents as an intellectually disadvantaged individual who appears to have struggled over an extended period with issues of drug addiction. While giving evidence he appeared to have difficulty comprehending what might be regarded as simple questions and appeared at times to be confused. While drug addiction is not to be regarded as a matter of mitigation the fact of the offender's mental illness and his compromised level of intellectual functioning are matters that it is proper for me to consider as part of the instinctive synthesis. In my assessment, while his mental illness and compromised intellectual functioning may mean that he is not a good vehicle for general deterrence, those features, particularly when considered along with his record of prior like offending, mean that some greater emphasis should be given by me to both specific deterrence and the protection of the community, they being two of the purposes of sentencing within s 3A of the Crimes (Sentencing Procedure) Act to which I should have regard. By this, I am not suggesting that general deterrence has no part to play in this sentencing task." Reference to the guideline in R v Henry in the sentence proceedings 1. The sentence proceedings commenced on 15 March 2019 but did not proceed beyond the tender of documents in the Crown and defence cases before being adjourned. His Honour received additional documentary material in the defence case and heard the applicant's oral evidence on 19 July 2019. After submissions, his Honour adjourned and imposed sentence later the same day. 2. The opening submission made by counsel for the offender was: "Of course, the sentencing exercise for a robbery offence as the guideline judgment is applicable. I don't intend on going through that guideline with your Honour in some depth, given your Honour's broad expertise in sentencing offenders with these variety of offences." 1. Counsel was referring to the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. She made no further reference to it. 2. The proposed ground of appeal is concerned with two sentences in the judge's remarks on sentence. They are in a passage that appears in the revised transcript under a heading "General Principles and Objective Seriousness". The passage follows on from his Honour describing the seriousness of robbery and armed robbery offences and the need for general and specific deterrence. He referred to the attitude of the courts to the use of knives in the course of offending and the need for deterrence on that account. He continued: "In considering the matter, it is appropriate to have regard to the guideline judgment in R v Henry (1999) 46 NSWLR 346. In that case the Court of Criminal Appeal identified a range of four to five years imprisonment for the full term in respect of armed robbery offences pursuant to s 97(1) of the Crimes Act. The common features of such offences, as set out in Henry, are of importance in assessing the objective seriousness of the offending. Those features are: (i) Young offender with little or no 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. Spigelman CJ subsequently clarified that the guilty plea feature in (vii) refers to a late plea of guilty for the purpose of the application of the guideline promulgated in R v Thomson and Houlton (2000) 49 NSWLR 383 at [161]. Therefore, where there is an early plea, all other things being equal, the sentence should be lower than the suggested range. Spigelman CJ said in Legge v R [2007] NSWCCA 244 that "a guideline is not a tramline" and it is not a case that exceptional circumstances must be demonstrated before a sentence of less than the guideline promulgated in Henry may be imposed. Such an approach impermissibly confines the exercise of sentencing discretion. It is also inconsistent with the nature of a guideline. The range identified by the Court in Henry is to be regarded as a starting point. A guideline judgment is not a straightjacket, rather it is to be seen as a check, a guide or an indicator, or as a sounding board: Legge at [59], and a Court is permitted to impose a sentence either above or below the range identified, depending upon the existence of other aggravating and mitigating factors. The fact that the offender pointed the weapon at each of the victims rather than had mere possession of it is an aggravating factor to be taken into account, as is the effect upon the various victims. In this case it could not be suggested that the offender was a young offender with little or no criminal history. He was aged 34 years at the time of the commission of each offence and his criminal record as an adult is substantial, including, as it does, prior convictions for aggravated sexual assault and inflict actual bodily harm, and two previous convictions for robbery while armed with a dangerous weapon. On the last occasion he was convicted of that offence in 2005, he was sentenced to a term of imprisonment of six years and six months with a non-parole period of three years and six months. He also has multiple entries upon his record for offences of shoplifting. In addition, he has had prior convictions involving the possession of a prohibited weapon and for having custody of a knife in a public place. Save for his age and record, the other features identified in the Henry guideline have application. In each offence a knife was used and in each offence there does appear to have been some limited planning, no doubt involving the identification by the offender of persons travelling alone. There was limited actual violence, however the offender's threatening language would no doubt have caused each of his victims real fear. The victims were vulnerable in that each of them was seated by themselves in a train carriage at the time that they were robbed by the offender. In each case a relatively small amount of property was taken. A plea of guilty was entered in the Local Court, so entitling the offender to a 25% discount on what would otherwise have been an appropriate penalty. I have concluded that the offending in these matters can best be assessed as falling at a point at or slightly above the upper end of the range identified in Henry. I have finally reached this conclusion based primarily upon the fact of the offender's record of like offences, of the offending not being impulsive and unplanned and considering that he was on bail for an offence of shoplifting at the time." (Emphasis added) 1. His Honour continued his remarks with a discussion of matters pertinent to the applicant's subjective case, the impact of the offending upon victims, the applicant's prospects of rehabilitation, special circumstances, totality, and his Honour's conclusion. Submissions 1. The applicant advanced the case on two bases: (a) conflation of the issue of objective seriousness of the offending with application of the Henry guideline, and (b) using the Henry guideline as a starting point. (I will refer to these assertions as "the conflation error" and "the starting point error".) The conflation error 1. The asserted error in relation to the first of the emphasised sentences in the passage quoted above is that "the guideline in Henry is not a tool for assessing the objective seriousness of the offending" but "is a guideline for the ultimate head sentence to be imposed for an armed robbery typified by the factors enumerated in the guideline". Those factors were listed by the judge but they include matters that are not relevant to the assessment of objective seriousness of the offence (age, plea and criminal history). 2. The Court was taken in oral submissions to the recent decision in Tuncbilek v R [2020] NSWCCA 30 which was said to provide an illustration of the error asserted here of conflating objective seriousness and the guideline in Henry. 3. The Court was also taken to Yildiz v R [2020] NSWCCA 69 that was said to provide an example of a "sentencing judge [having] had regard to the judgment in Henry in dealing with the objective seriousness". 4. Counsel for the applicant frankly conceded that she was "not particularly assisted" by the fact that counsel who appeared in the District Court did not address either objective seriousness or, aside from noting that it was relevant, the Henry guideline. The starting point error 1. In relation to the second emphasised sentence in the passage quoted above, it was asserted in written submissions that the judge, "having undertaken an assessment of the offending pursuant to the Henry guideline, went on to address the (balance of) the applicant's subjective case ROS 11-15, and then separately to that, his prospects of rehabilitation at ROS 15-16". It was submitted that, "the Henry guideline is not a 'starting point' from which one moves up or down, depending on other factors relevant to the sentencing exercise". The balance of the applicant's subjective case included his mental illness and intellectual disability. It was submitted that these "were not simply factors which operated to decrease the otherwise appropriate sentence as determined by application of the Henry guideline to the facts of this case". 2. In oral submissions it was contended that in finding that the offending was "at a point at or slightly above the upper end of the range identified in Henry" meant that the judge had adopted a starting point of about five years. With reference to the judgment of Rothman J in Yildiz v R at [62] it was submitted that adding to or subtracting from that figure was erroneous. 3. It was also submitted that the applicant's mental illness and intellectual disability were not factors that operated to decrease the otherwise appropriate sentence determined by the application of the guideline. They were factors relevant to the weight to be ascribed to the guideline itself in that "an offender … who suffers from a significant mental illness as well as a cognitive deficit ought not be judged by the standards applying to offenders generally". Consideration 1. The judge said at the outset of the second day of the sentence hearing, "I'm well advanced on my reasons". Precisely what that meant is not clear. In my view, it would be unfair to analyse the remarks on sentence in the same way as one would a carefully considered reserved judgment. Given that his Honour had only heard submissions that day, it would be appropriate to regard his judgment as having been delivered essentially ex tempore. Such judgments "may not be as robustly structured as they might otherwise have been" and "may lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing": R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175 at [34] (Johnson J). 2. Moreover, remarks on sentence must be read fairly as a whole and without engaging in an unduly critical textual analysis or a minute scrutiny in the search for error: Tuncbilek v R at [57] (Johnson J); Grant v R [2014] NSWCCA 67 at [38] (Leeming JA, Adams and Hall JJ). 3. It is sometimes overlooked that the sequence in which reasons are expressed in a judgment does not necessarily correspond with the order in which they were formulated: Fedele v R [2015] NSWCCA 286 at [85] (Adamson J). This is particularly so in an extempore judgment. For example, a judge may express a finding about a matter at an early stage of sentencing remarks and later refer to matters that are relevant to that finding. It does not necessarily follow that the judge has not considered those matters when making the finding announced earlier. The conflation error 1. The sentencing judge's inclusion of the word "objective" was inapt in the first impugned sentence in the remarks. That is readily apparent from the fact that his Honour immediately proceeded to list the features identified as a case attracting the guideline in R v Henry. They involved five matters that were objective and three matters that were clearly subjective (age, criminal history and plea). I am satisfied that what his Honour was intending to convey was that the (eight) common features of the case (which were the subject of the guideline) were important in assessing the comparative (not objective) seriousness of the case at hand. 2. The judge did not err by conflating the Henry guideline with the assessment of the objective seriousness of the offence. He concluded this section of the judgment by stating his conclusion as to a comparison of the present offending with the guideline. He did not make any finding of the relative level of objective seriousness of any of the offences. In these circumstances, it cannot be said that there was an erroneous assessment of objective seriousness because certain subjective factors were taken into account. The simple point is that there was no conflation because there was no finding as to the objective seriousness of the offences at all. 3. An offender's age and plea are self-evidently irrelevant to the objective features of an offence. Further, Price J said in Kelly v R [2017] NSWCCA 82 at [58], that "it is well-established that a person's prior criminal history has no part to play in determining the gravity of an offence". That prompted his Honour to approach a complaint of error by an experienced sentencing judge "with considerable caution". As it turned out, there was a solid basis to make a finding of error in that case. 4. The contrary is clear in the present case. The sentencing judge discussed the significance of a plea of guilty to the imposition of a lesser sentence with reference to R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] 49 NSWCCA 309. He referred to the applicant's age and criminal history in the course of discussing various aspects which appear in the transcript under the heading, "The Offender's Subjective Case". 5. The applicant's reference to Tuncbilek v R does not assist. It did not involve conflating objective seriousness and the R v Henry guideline as counsel for the applicant contended. Johnson J said (at [49]), "it was reasonable for the sentencing judge to approach an assessment of objective seriousness by reference to the guideline judgment in R v Henry". There was no elucidation of why that was so, except for an earlier observation (at [42]) that this was the approach adopted by the applicant in the court below. The error in Tuncbilek v R was that the sentencing judge failed to determine a contested issue as to the level of objective seriousness of the offence and the offender's moral culpability. 6. The reliance placed upon Yildiz v R by the applicant is also, with respect, misplaced. It was submitted that it was a case in which "the sentencing judge had regard to the judgment in Henry in dealing with the objective seriousness". That is said to be apparent from the judgment of Rothman J at [39], but it is far from clear. His Honour was summarising the content of the sentencing judgment and said in that paragraph that the sentencing judge had regard to R v Henry. His Honour said in the next sentence that the judge found the objective seriousness of the offence in question was slightly below the mid-range. His Honour did not say that the latter was derived by reference to the former. There was no discussion of any issue about conflation of the two issues. The case was concerned with the judge's failure to have appropriate regard to the age of the youth of the offender. 7. Reading the remarks on sentence full and fairly, and avoiding unduly critical textual analysis, I am not persuaded that there was any conflating of the guideline in R v Henry with an assessment of the objective seriousness of the offences. The starting point error 1. It would be wrong to use a sentencing guideline as a starting point in the assessment of sentence: McDonald v R [2015] NSWCCA 280 at [93]. A guideline is a matter to be "taken into account" only as a "check" or "sounding board" or "guide": R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [113] (Spigelman CJ). 2. It may well be, as the Crown suggested, that the judge was referring to the statement of Spigelman CJ when promulgating the R v Henry guideline. The Chief Justice said (at [169]): "Aggravating and mitigating factors will justify a sentence below or above the range [of between four to five years]. … The narrow range is a starting point." 1. Whatever the judge meant by the second impugned sentence, it was followed immediately by a correct statement of principle and it included reference to appropriate authority: Legge v R [2007] NSWCCA 244. That was a case in which a sentencing judge had said that exceptional circumstances were required if there was to be a departure from the guideline range. The principal judgment of the Court was that of Simpson J (as her Honour then was) but Spigelman CJ said in his concurring judgment (at [59]): "I agree and would add only a few observations with respect to his Honour's error in applying the guideline judgment as if it could only be departed from in exceptional circumstances. This, as Simpson J has noted, is quite inconsistent with the basis or the guideline judgment as outlined in Jurisic at the paragraphs to which her Honour has referred. It is also inconsistent with the extended treatment of the nature of the guideline in Henry itself, particularly at paragraphs 12 through to 42. Subsequently in the case of R v Whyte (2002) 55 NSWLR 252 this Court affirmed the basic nature of the guidelines as a check, a guide or an indicator or as a sounding board (see at [112]–[116]. Further Whyte contains a detailed analysis of the inter-relationship, in the context of formulating and applying the guideline, between the principle of individualised justice and the principle of consistency (at [143]–[189]). 1. The fact that the judge proceeded to discuss the applicant's subjective case, and then his prospects of rehabilitation, did not mean that he had adopted a starting point and was then making adjustments up or down in accounting for those matters. He certainly did not say anything to indicate that he was. The sequence of referring to the various matters relevant to the assessment of sentence is not an indicator of the sequence in which his Honour formulated in his mind the appropriate sentence to impose. 2. The submission that the weight to be ascribed to the R v Henry guideline was reduced because of the applicant's mental illness and cognitive deficit is not one that was advanced in the court below. Given there is no ground asserting that the judge did not have regard to those features of the applicant's subjective case in accordance with relevant principles, and no apparent error in any event, this contention must be rejected as well. Conclusion and orders 1. There is no merit in the proposed ground of appeal. 2. I would make the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. 1. FAGAN J: I agree with R A Hulme. 2. HIDDEN AJ: I agree with R A Hulme J. ********** Endnotes 1. An offence contrary to s 97(1) of the Crimes Act 1900 (NSW) – maximum penalty 20 years. 2. An offence contrary to s 192E(1)(b) of the Crimes Act – maximum penalty 10 years. 3. An offence against s 115 of the Crimes Act – maximum penalty 10 years. 4. Here, and elsewhere where the sentencing remarks are quoted, I have taken the liberty of breaking up paragraphs in a logical fashion as an aid to the reader. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 June 2020