Regina v Raad [1999] NSWCCA 27

New South Wales Court of Criminal Appeal CITATION : Regina v Raad [1999] NSWCCA 27 FILE NUMBER(S) : CCA 60004/98 HEARING DATE(S) : 02/03/99 JUDGMENT DATE : 2 March 1999

PARTIES : Regina v Julal Raad JUDGMENT OF : Abadee J at 1; Barr J at 14; Adams J at 15

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/21/0500 and 95/21/0257 LOWER COURT JUDICIAL OFFICER : Judge Kirkham

COUNSEL : W. G. Dawe QC - Crown Appellant in Person SOLICITORS : S. E. O'Connor - DPP CATCHWORDS : ACTS CITED : s 97 Crimes Act s 5(2) Sentencing Act DECISION : Application for Leave to appeal the sentence refused

IN THE COURT

OF CRIMINAL APPEAL

60004/98

ABADEE J BARR J ADAMS J

TUESDAY 2 March 1999

REGINA v Julal RAAD

JUDGMENT 1 ABADEE J : We shall now proceed to consider the application for leave to appeal against the sentence imposed by Judge Kirkham on the applicant. That sentence is one dated 16 December 1997. The matter of sentence is not addressed by the applicant in his grounds of appeal or in the letter to the Registrar to the court. Nevertheless the court is willing to hear the application and in fact has heard the application by the applicant for leave to appeal against his sentence. 2 The applicant originally pleaded guilty before his Honour Judge Kirkham on 15 October 1997 to one count of armed robbery involving the use of an offensive weapon. That offence involved an elderly man aged 68 and involved an offence against s 97 of the Crimes Act which carries a maximum penalty of 20 years penal servitude. 3 The facts and circumstances relating to the offence are set forth in his Honour's reasons for sentencing as follows: "About 9.30pm on Tuesday 18 January 1994 Mr Alexander Rigby, then aged seventy-one years, was alone in his home in Ramsay Road, Five Dock. The prisoner entered, having knocked on the front door of Mr Rigby's house and when he opened the door the prisoner produced a large knife and pushed Mr Rigby into the hallway, pointing the knife in his stomach and saying "Hello mate". He then grabbed Mr Rigby by the right arm and said, "Come into this room" which was the loungeroom. Once there Mr Rigby was released and the prisoner said, "What have you got?" He looked around the room and he took Mr Rigby into the bedroom and demanded that he lay on the bed, which Mr Rigby refused to do. The prisoner said, "I want your money". Mr Rigby removed his wallet from his trousers, handed it to the prisoner who emptied the contents of it onto the floor. The prisoner collected from what had fallen from the wallet a St George Bank Visa card and about $50 in cash. The prisoner then asked Mr Rigby how much money was in the Visa account and using the knife by pointing it at Mr Rigby demanded the PIN number for it. Mr Rigby then provided the PIN number which the prisoner wrote down on a piece of paper. The prisoner then searched the bedroom, going through drawers and wardrobes and took two gold wedding rings from a drawer next to the bed. He also took a ladies wrist watch from the same drawer. Whilst searching these rooms the prisoner used a cloth to wipe each of the surfaces that he was touching and the prisoner did this for the entire time he was within the victim's home. I accept the evidence of Mr Rigby and it makes clear that the prisoner was well aware of what he was doing at that particular stage. The prisoner then escorted Mr Rigby back into the loungeroom. He picked up a Sony brand video camera, put this item in the centre of the room on the floor. The prisoner then ordered Mr Rigby to sit on one of the loungeroom chairs whilst he went into another bedroom and searched that room. Mr Rigby went into the bedroom and confronted the prisoner and asked why he was doing this. The prisoner made no reply but removed a pink coloured bedspread from on top of the bed and walked back into the loungeroom. The bedspread was put on the floor by the prisoner and he put the Sony video camera and other items, including a colour television set, on the bedspread. The phone was disconnected by the prisoner. That was also put on the bedspread. A conversation then ensued about whether there was any further telephones in the house. The prisoner then had a quick look around the kitchen and returned to the loungeroom where he tied the four corners of the bedspread together. The prisoner then picked up the bedspread with the property in it and walked towards the front door. The prisoner opened the front door and said to Mr Rigby, "If I get the money out of the machine I'll return in half an hour. When you hear the car horn your stuff will be at the front of the house". 4 The prisoner left the house. Mr Rigby closed and locked the door to his home. He was very frightened for his own safety, quite naturally enough, and he stayed inside for some time and about an hour later he plucked up enough courage to leave his home and walk to the Five Dock Police Station where he reported the matter to the police. 5 It is clear from the facts and from statements of Mr Rigby that the prisoner had Mr Rigby in significant fear for life and limb. The execution of the armed robbery was arrogantly carried out and apart from the taking of other items of property he demanded Mr Rigby's Visa card and then demanded the appropriate PIN number for it. This is a feature of aggravation to the offence as it illustrates an intention to commit other offences arising out of the acquisition of this card and the PIN number. 6 His intention manifest at the time of the offence was later carried into effect and became the subject of other matters, included on a form 1 under the Criminal Procedure Act." 7 In sentencing his Honour also took into account a number of matters that were on Form 1 documents. The first Form 1 document showed that there were seven offences committed by the use of a St George Bank Visa card stolen during the armed robbery on 18 January 1994. The two other matters on the second Form 1 were crimes committed by the applicant, but unrelated to the armed robbery. His Honour found several aggravating factors which he mentioned in his reasons for judgment. 8 His Honour had regard to the fact that the applicant had a dozen or so aliases and was no stranger to the courts. In fact, he referred to the applicant's record which included a record of drug offences. 9 The applicant has put before the court various materials which he has asked the court to take into account in the event that the court considers that an appeal should be allowed, and it becomes necessary to re-sentence. 10 What is significant in this fact is that at the time of the armed robbery the victim was aged 68 years of age. The robbery took place in the sanctity of his home. It is a serious case of any view of home invasion. There is nothing to suggest that his Honour failed to give due and proper weight to the various subjective features. Indeed, it seems to me that these were fully considered by his Honour and taken into account when his Honour sentenced. 11 His Honour also addressed the question of general deterrence. Significantly he made a finding that the objective criminality of the crime was such it should be placed in the mid to upper range. I do not consider that that finding is capable of challenge. His Honour addressed the issue of special circumstances in accordance with s 5(2) of the Sentencing Act and was satisfied that there were no special circumstances. The sentence that was ultimately imposed upon the applicant was penal servitude for seven years comprising a minimum term of five years and three months commencing on 16 August 1997 and an additional term of one year and nine months commencing on 16 November 2002. 12 The applicant has had the benefit of his Honour taking into account the various matters that were contained on the two form 1 documents. Also, as a matter of aggravation is the fact that the matters that were taken into account on the second form 1 document were committed whilst the applicant was on bail in relation to the robbery being armed offence. 13 As I have said the case is clearly a serious one of home invasion, not merely upon an elderly man aged 68, but also upon a man who lived alone. There is nothing to indicate that any error of law or fact was committed by his Honour in the course of his determining the sentence. There is nothing to suggest that the sentence was outside of the sentencing discretion available to his Honour in the circumstances. I thus see no basis for concluding that the sentence was excessive. For these brief reasons I would propose that the application for leave to appeal the sentence should be refused. 14 BARR J: I agree. 15 ADAMS J: I agree, but I wish to add this: To my mind having regard to the seriousness of the offence, his Honour extended to the applicant a considerable degree of leniency. 16 ABADEE J: The order is the order that I proposed. The application for leave to appeal the sentence is refused. **********