New South Wales Court of Criminal Appeal CITATION : Regina v H Karaman [1999] NSWCCA 412 FILE NUMBER(S) : CCA 60314/98 HEARING DATE(S) : 10 December 1999 JUDGMENT DATE : 17 December 1999 PARTIES : Regina v Haykel Karaman JUDGMENT OF : James J at 1; Sperling J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0120 LOWER COURT JUDICIAL OFFICER : Gibson DCJ COUNSEL : (Applicant): P M Winch (Crown): C K Maxwell QC SOLICITORS : (Applicant): T A Murphy (Crown): S E O'Connor CATCHWORDS : (No question of principle) ACTS CITED : Crimes Act 1900 Chu (NSW CCA, 16 October 1998, unreported) Henry (1999) 46 NSWLR 346 CASES CITED: Lowe (1983-84) 154 CLR 606 Postiglione (1997) 189 CLR 295 Veen [No 2] (1987-88) 164 CLR 465 DECISION : See paragraph 43 IN THE COURT OF CRIMINAL APPEAL 60314/98 JAMES J SPERLING J Friday 17 December 1999 REGINA v Haykel KARAMAN JUDGMENT 1 JAMES J: I agree with the judgment of Sperling J. ********** IN THE COURT OF CRIMINAL APPEAL 60314/98 JAMES J SPERLING J Friday, 17 December 1999 REGINA v Haykel KARAMAN JUDGMENT 2 SPERLING J : On 29 May 1998, the applicant, Haykel Karaman, was sentenced by Gibson DCJ. The applicant had pleaded guilty to the following charges: (a) Count 1: Robbery in company on 11 July 1997, contrary to s 97(1) of the Crimes Act 1900 , for which the maximum penalty is penal servitude for twenty years. (b) Count 3: Robbery with corporal violence and wounding on 25 November 1997, contrary to s 96 of the Crimes Act 1900 , for which the maximum penalty is penal servitude for twenty five years. (c) Count 4: Steal motor vehicle, contrary to s 154A(1) of the Crimes Act 1900 , for which the maximum penalty is penal servitude for five years. (d) Count 5: Use offensive weapon to resist arrest on 25 November 1997, contrary to s 33B(a) of the Crimes Act 1900 , for which the maximum penalty is penal servitude for twelve years. 3 His Honour imposed the following sentences: (a) Count 1. A fixed term of three years penal servitude. (b) Count 3. A total sentence of ten years and six months penal servitude, comprised of a minimum term of seven years and six months and an additional term of three years. His Honour took into account the following offences on Form 1: one count of possess goods known to be stolen and one count of possess weapons for protection. (c) Counts 4 & 5. A fixed term of twelve months penal servitude. 4 The applicant was born on 21 July 1978. He was almost nineteen years of age on 11 July 1997, and was nineteen years of age on 15 November 1997. 5 The facts as to 11 July 1997 (Count 1) are as follows. At about 10.00 pm on 11 July 1997, three young men, the victims, were at Galaxy World in George Street, Sydney. As they were leaving, they were approached by the applicant and two companions. The victims were threatened with death if they did not accompany the applicant and his companions. The victims were surrounded by the applicant, his companions and others, numbering in all about six persons and were forced to go to the forecourt area of the Central Local Court in Liverpool Street. One of the applicant's companions demanded wallets and other valuables. Two wallets were handed over. The applicant demanded a gold coloured ring worn by one of the victims, who refused to hand it over, whereupon the applicant punched him with a clenched first to the face. The applicant then forcibly removed the ring. The applicant and one of his companions removed watches belonging to two of the victims. The police arrived and the applicant and his two companions were apprehended. Two of the victims sustained bleeding noses, soreness and bruising to the facial area. The applicant admitted to assaulting and robbing one of the victims. The applicant's two companions also made admissions. The applicant and his two companions were charged. 6 The facts as to 25 November 1997 are as follows (Counts 3, 4 & 5). At about 4.00 pm on 25 November 1997, the applicant entered a pawnbroker and second hand dealership store, "Cash in a Flash", in Parramatta Road, Leichhardt, in company with two others, Christian Souba and Manuna Herewini Treiblmayr. Money was demanded. Mr R L Cattell, the owner of the business, was in the store with his brother Mr R J Cattell and his daughter Ms E Cattell. In the course of what then followed, Mr R L Cattell was cut badly on the neck and Mr R J Cattell was stabbed in the neck. The applicant later confessed to inflicting both injuries, the first (he said) with a screw driver he was carrying and the second with a knife he also had in his possession. Ms Cattell was threatened by the applicant with the knife and witnessed the injury to her father. 7 It is not clear from the evidence before the sentencing judge what precisely was stolen. Not a great deal, it seems; a mobile telephone, at least, and something over $1,000 in cash. 8 The Cattells fled from the store onto the street footpath. Mr R L Cattell held the front door of the shop shut in an attempt to prevent the offenders from escaping. The applicant forced the door partially open and thrust his knife through the gap between the door and the door jamb, attempting to cut Mr Cattell with the knife. Mr Cattell was nicked on the wrist and let go of the door. The offenders ran off. The applicant confessed to this incident also. 9 The offenders fled in a stolen vehicle driven by a fourth offender, Ahmet Saltan. 10 The events in the store were recorded by a security video camera. 11 As at 25 November 1997, the applicant was on bail in relation to the charge relating to the events of 11 July 1997. 12 The three co-offenders who were in the store were arrested soon after. The applicant was found to be carrying two screw drivers and a wrist watch. He admitted that he had received the watch believing it was stolen. (These are the Form 1 matters). The applicant admitted his role in the episode, which he made more explicit in a later statement, in the respects I have mentioned. 13 The driver of the vehicle, Mr Saltan, was also apprehended. He made no admissions, pleaded not guilty and absconded whilst on bail. He is still at large. The applicant provided information to the police concerning the role of all the co-offenders in the robbery on 25 November 1997, including that of Mr Saltan, whose involvement would not have been recorded by the security video camera. The applicant also provided information concerning several other offences committed by Mr Saltan, and provided a written undertaking to give evidence against him. His Honour acknowledged that, in consequence, the applicant would serve his sentence in protection. It is well recognised that this is more onerous because of the restrictions involved. 14 In a victim impact statement made about six months after the event, Mr R J Cattell said he had suffered wounds to the back of the neck and the side of the head together with heavy bruising to various parts of his body. While waiting for the ambulance he was bleeding and thought he would die. He suffered nerve damage to the back of the head which continued to cause him discomfort and irritation. He was absent from work for six weeks and returned only with effort. For a time, he felt anxious and insecure in the presence of customers. He was still anxious about young men entering the shop. He still felt insecure and nervous in public places. He had lost a degree of confidence in himself and was not working as efficiently. His memory was affected. He was extremely anxious in the presence of anyone holding a knife for whatever reason. 15 Mr R L Cattell said in a victim impact statement, also made about six months after the event, that he received a deep stab wound to the side of the neck, and bruising to various parts of his body. He continued to have numbness in the neck in the region of the wound. He still felt emotional stress. He had lost enthusiasm for the business. He had a few days off after the attack but had to reopen the shop the following week to keep it going. He felt anxious and found it difficult to make decisions. He had lost energy. 16 Mr R L Cattell also said, in his victim impact statement, that his daughter, Emma, had been unable to resume work at the shop since the robbery and had required extensive psychological counselling over several months. 17 The following is a summary of the report of Dr C J Lennings, clinical psychologist, tendered at the sentencing hearing. The applicant arrived in Australia when he was about seven years old, with his family. His family returned to Indonesia when he was sixteen, leaving him in the care of his nineteen year old brother. The applicant left school but was unable to hold work for more than six months. He began using marijuana when his parents left Australia. He then took to smoking heroin which escalated to a $50 per day habit, smoking twice a day. He also used ecstasy. The applicant related the offences to drug use. He claimed that the assault with the knife occurred when he was withdrawing from heroin, and was agitated. His peer group and drug abuse lifestyle represented a significant risk for his future. The applicant had barely functional literacy. He was in the low-average range of intelligence. He had relatively poor cognitive skills which represented a risk factor for successful adjustment unless he received additional support and training. On psychological testing, there were a number of features that warned of a future risk for violence. The indicators suggested that, should the applicant re-offend, there was a likelihood that violence might be involved. However, the risk would be reduced by recommendations for management made by the psychologist. These included assistance with housing, employment and drug counselling. 18 The applicant gave evidence at the sentencing hearing. He admitted that, at the time of these offences, he was unemployed, not receiving welfare support and yet somehow maintaining a $50 a day heroin habit. He was living with his brother some of the time, and on the streets or with associates for some of the time. 19 The applicant's criminal history commenced at the age of fifteen with a conviction in the Children's Court for assault, followed, over a period of two years or thereabouts, with convictions for break enter and steal, assault occasioning actual bodily harm, and malicious damage. 20 In addition to the implicit ground that the sentence was excessive, three grounds of appeal are specified. (1) That his Honour failed to give sufficient weight to the applicant's assistance to the authorities and his undertaking to give assistance in future. (2) That his Honour erred in concluding that the applicant was dangerous and including in the sentence imposed an element of societal protection. (3) That his Honour failed to give sufficient weight to the subjective circumstances of this applicant. Ground 1: That his Honour failed to give sufficient weight to the applicant's assistance to the authorities and his undertaking to give assistance in future. 21 In Chu (NSW CCA, 16 October 1998, unreported), it was said that the discount for significant assistance is in practice twenty to fifty per cent, and that few cases, where a discount has been allowed, have been for less. The discount in this case was a 21.05% reduction from what would have been the total sentence under Count 3. This is within the range of the present practice. In my experience, middle to high range discounts are, generally speaking, reserved for cases which lead to the apprehension of organisers of criminal activity or to breaking a network of organised criminal activity. 22 The discount in this case was not so low as to be outside the range of a proper exercise of judicial discretion. Ground 2: That his Honour erred in concluding that the applicant was dangerous and including in the sentence imposed an element of societal protection. 23 In his remarks on sentence, the trial judge said: "It may be that it was organised by someone else who provided the knife, but the chilling thing is that he was prepared to use it in the way he did. I think he is dangerous. I refer to paragraph three, page three, of Dr Lennings' report. The community is entitled to some protection from this conduct. It is clear that he will require considerable treatment in custody and also when he gets out." 24 The passage in Dr Lennings' report (to which I have earlier referred in summary form) is as follows: "It would seem that Haykel's offences occur within a matrix of peer influence and drug abuse. When removed from this matrix, Haykel holds very negative and self-punishing views of his behaviour. However, Haykel does not appear to have a well established life-style outside of his peer group and drug abuse life-style and this represents a significant risk for his future." 25 It was a reasonable inference from what occurred on 25 November 1997 and from that passage in Dr Lennings' report that the applicant had a propensity to violence that might well persist. (A later section of Dr Lennings' report - also mentioned earlier in summary form - suggested explicitly that, if the applicant offended again, there was a likelihood that violence might be involved.) 26 In Veen [No 2] (1987-1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ said, at 472 and 473: "The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen [No 1] that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender. …. It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible." 27 Whether the sentence in the present case was greater than is "appropriate to the crime" - for this or any other reason - will be considered when I come to whether the sentence was manifestly excessive. Ground 3: That his Honour failed to give sufficient weight to the subjective circumstances of the applicant. 28 It is not demonstrated that his Honour overlooked or failed to give appropriate weight to any particular subjective factor. If the verdict was manifestly excessive that might imply that he erred in some such respect. I now come to the question as to whether the sentence was manifestly excessive. Sentence manifestly excessive? 29 His Honour sought to reflect the total criminality involved in all the offences in the total sentence of ten years six months under Count 3 which consisted of a minimum term of seven years six months and an additional term of three years. That was the sentence for the robbery on 25 November 1997. He imposed concurrent fixed term sentences for the other offences. His Honour said that he had deducted two years from the minimum term of the sentence under Count 3 for assistance to the authorities. 30 How his Honour arrived at the sentence under Count 3 is not spelled out in the remarks on sentence, but it can be inferred. As his Honour would have known, a deduction for assistance is appropriately made to the total sentence and flows through to the minimum term as well. It is to be assumed that this is what his Honour did, although he mentioned only the effect on the minimum term. A deduction of two years from the minimum term implies a minimum term before the deduction of nine years and six months. That, in turn, implies a total sentence before deduction of about twelve and a half years. That was in addition to a period of forty seven days in custody before trial. 31 I would assess the total sentence of about twelve and a half years, before deduction for assistance, as follows. (a) For the offence of robbery in company on 11 July 1997, his Honour imposed a concurrent fixed term sentence of three years. His Honour did not add an additional term to that sentence because any additional term would be subsumed in the additional term under Count 3. The criminality for the offence of 11 July 1997 was taken into account in the sentence under Count 3. In Henry (1999) 46 NSWLR 346, it was laid down that, for an offence of armed robbery under s 97, with certain characteristics, the total sentence should generally fall between four and five years. The range applied to offences where a weapon such as a knife was used by a young offender, who pleaded guilty, with little or no criminal history, limited actual violence but a real threat of violence, and the victim being in a vulnerable position. Robbery in company is an offence dealt with in the same section of the Crimes Act 1900 as armed robbery. It carries the same maximum sentence. It would not have been unreasonable, in the circumstances of the present case, for his Honour to carry a sentence of four years into the sentence under Count 3 for the robbery in company offence, before applying the principle of totality. (b) The robbery with wounding on 25 November 1997 had the following features. The applicant, by his own admission, inflicted wounds on two victims and threatened another. He was armed with three weapons - the knife and two screwdrivers - and used both the knife and a screwdriver to inflict injury. The wounds were not slight, They were to vulnerable parts of the body. They could have been much more serious than they were, even fatal. The applicant was on bail. It would not have been unreasonable for his Honour to carry a sentence of ten years into the sentence under Count 3 for this offence, before applying the principle of totality. (c) For the offence of stealing a motor vehicle and of using an offensive weapon to resist arrest, his Honour imposed a concurrent fixed term sentence of one year. It would not have been unreasonable for his Honour to carry a sentence of one year for each of these sentences into the sentence under Count 3, before applying the principle of totality. (d) The aggregate of these figures is sixteen years. (e) The principle of totality has limited scope for operation in this case. The starting point would be the assumed ten years for robbery with wounding. By what margin would the other factors - aggregating six years - have to be reduced for totality. A reduction of three years would not be unreasonable. That would reduce the assumed sixteen years to thirteen years. (f) That is about the same as his Honour's implicit total sentence of about twelve and a half years under Count 3, after applying the principle of totality but before discount for assistance. (g) A discount of a touch over 20% for assistance, which his Honour allowed, is not outside the bounds of a proper exercise of discretion (see before). 32 The conclusion from this analysis is that the effective sentence, the sentence under Count 3, intended - as it was - to reflect the total criminality for all the offences for which the applicant was being sentenced, was not manifestly excessive. It was within the bounds of a proper exercise of the sentencing judge's discretion. Ground 4: A comparison of the sentences imposed upon the co-offenders Somba and Treiblmayr with the sentence imposed upon the applicant reveals unjustifiable disparity. 33 The applicant relies on the sentences imposed, in relation to the robbery on 25 November 1997, on the applicant's co-offenders, Christian Somba and Manunu Treiblmayr, by Viney DCJ on 24 February 1999. Both co-offenders pleaded guilty to the lesser charge of robbery in company. The sentencing hearing before Viney DCJ proceeded - as had the sentencing hearing before Gibson DCJ - on the basis that the wounds to both the Cattells were inflicted by the applicant. 34 Christian Somba was sentenced to a minimum term of 2 years and 3 months and an additional term of 2 years. Manunu Treiblmayr had committed a further offence of armed robbery on 16 June 1998, while on bail. He was sentenced to a minimum term of 3 years and 6 months with an additional term of 2 years for both offences. 35 If disparity between sentences imposed on co-offenders is so great that there is a justifiable sense of grievance, the appellate court will intervene to rectify that situation by reducing the sentence under appeal to the extent necessary: Lowe (1983-84) 154 CLR 606, Postiglione (1997) 189 CLR 295. The Somba and Treiblmayr sentences are substantially less than that imposed on the present applicant. The question is whether the principle of parity requires a reduction. 36 I do not think so. The differences between the cases is sufficient to avoid any justifiable sense of grievance on the part of the present applicant. 37 Mr Somba was a little younger than the applicant but only by about a year. Mr Treiblmayr's age is not recorded in Viney DCJ's remarks on sentence, but I take him to have been of a similar age. 38 The three offenders had similar backgrounds, personality problems and lifestyles. 39 The contrast between the sentences is that the applicant was sentenced for a larger number of offences, and these included one offence which was more serious than any for which either of the other two offenders were sentenced. The major offence for which the applicant was sentenced was robbery with corporal violence and wounding on 25 November 1997. For his involvement in that robbery, Mr Somba was sentenced for the lesser offence of robbery in company. (That was because he was not found to have been involved in the wounding by the applicant of the two male victims.) That was Mr Somba's only offence, whereas the applicant was also sentenced for two further serious offences, the offence of using an offensive weapon to resist arrest (the attempt to stab one of the victims at the door of the store while trying to get away) and the offence of robbery in company committed on 11 July 1997. 40 Mr Treiblmayr received a heavier sentence than Mr Somba, but substantially less than the applicant. Mr Treiblmayr was sentenced for two major offences, robbery in company on 25 November 1997 and armed robbery, committed while on bail on 16 June 1998. (Armed robbery carries the same maximum penalty as robbery in company.) By contrast, the applicant was sentenced for the more serious offence committed on 25 November 1997, the additional serious offence committed on that date (at the front door of the shop) and a prior offence of robbery in company. That was one offence more serious than any committed by Mr Treiblmayr, one of similar seriousness and an additional serious offence. 41 The analysis could be more detailed, but what I have said is sufficient to demonstrate a marked difference between the criminality for which Mr Somba and Mr Treiblmayr were sentenced and the criminality for which the applicant was sentenced. Any sense of grievance about the difference in sentences would not be justified. Conclusion 42 None of the grounds of appeal having been established, the appeal should be dismissed. 43 The orders I propose are: (1) Grant leave to appeal against sentence. (2) Appeal dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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