Reported Decision : 108 A Crim R 499 New South Wales Court of Criminal Appeal CITATION : R v Khamas [1999] NSWCCA 436 FILE NUMBER(S) : CCA 60250/99 HEARING DATE(S) : 25 November 1999 JUDGMENT DATE : 25 November 1999 PARTIES : Danny Khamas - Appellant Regina - Respondent JUDGMENT OF : Sully J at 46; Hulme J at 1; Hidden J at 47 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Judge Moore COUNSEL : P Byrne SC - Appellant RA Hulme - Crown SOLICITORS : Glenn K Walsh - Appellant SE O'Connor - Crown CATCHWORDS : DECISION : See paragraph 45. IN THE COURT OF CRIMINAL APPEAL No: 60250/1999 SULLY J HULME J HIDDEN J Thursday, 25 November 1999 REGINA -v-Danny KHAMAS JUDGMENT 1 HULME J : In this matter, on 15 April 1999, the respondent to this Crown appeal pleaded guilty to two counts of attempt armed robbery and one of assault. All three counts arose out of the one incident on 26 September 1998 when the respondent and a co-offender sought to obtain the takings of a McDonald's restaurant from the female manager of that restaurant and a security guard and in the course of doing so punched and kicked the security guard. The arm involved was a replica semi automatic pistol. 2 On 15 April 1999, Judge Moore sentenced the respondent on each count to concurrent terms of imprisonment for two years, such imprisonment to be by way of periodic detention. 3 By letter dated 21 April 1999 the Director of Public Prosecutions wrote to the respondent informing him that an appeal against the inadequacy of the sentence was being considered. The court was provided with proof of posting of that letter, although it was informed by Mr Byrne SC, appearing for the respondent, that the letter had not been received. 4 A notice to appeal against all three sentences was signed on 19 May and served on 27 May. It may be no coincidence that the judgment of this court in R v Henry (1999) 46 NSWLR 346 setting out guidelines for the sentencing of persons convicted of armed robbery was delivered on 12 May 1999. 5 The two offenders planned the offence over a day or two preceding its commission. Earlier in the day of 26 September 1998, the respondent had obtained a replica pistol, which he owned, from a friend who had borrowed it. On the evening of 26 September, the offenders drove to a place near the restaurant, parked the car, checked out the area and waited until the restaurant had closed and other staff had departed. 6 Some time after 1 am the two victims left the premises and went toward the manageress' car. There the offenders approached them, the co-offender appeared to cock the weapon. Both offenders demanded "the money". The security guard resisted, was kicked and punched by the co-offender and later punched at least once by the respondent. During the incident the respondent attempted to forcibly take from the manageress her handbag. 7 In the course of leaving the scene, the respondent was spoken to by some police officers and asserted he was just going for a jog. Details provided in response to some further questioning struck the police as improbable and, on being apprised of the attempted robbery they arrested the respondent. Later in the early morning, a formal interview was conducted in which the respondent admitted his involvement and provided details of the circumstances. 8 In due course, the respondent was granted bail but on 4 November 1998 he was observed pushing a shopping trolley by police attending a home unit in response to a report of a break and enter. Inside the trolley was a television set, a video recorder, a stereo system with speakers, a CD player and these items were covered with a bath towel. When questioned, the respondent provided false answers. Later, when the occupier of the unit was brought down and identified her property, the respondent said: "OK, you've got me, but I didn't steal the stuff from anyone. I bought it from the guy Karl who lives in 401 for $150." 9 Arising from this incident, an offence of receiving property known to have been stolen was placed on Form 1 and taken into account by Judge Moore. 10 The respondent was born on 15 October 1979. He arrived in Australia with his family in 1990, having escaped from Iraq and spending some four years in Iran on the way. On arrival in Australia, he could not speak English and, as his Honour found, was subjected to racial taunts and did not fit in very well with other school children. He left school at about the end of year 10. 11 He remained living with his family and seems to have had a satisfactory work history since leaving school. He had bought a car, and placed himself into debt buying expensive accessories, some of which were stolen. This situation apparently had a significant effect on him. Although continuing to reside with his family, he became somewhat detached from them, staying out at night, mixing with persons his family regarded as the wrong crowd and taking no notice of advice to this effect. Prior to the subject offences, the respondent had no convictions. 12 In arriving at, or in explanation of the sentence he imposed, Judge Moore took account of a number of matters to which attention must be given. A significant number display error quite separate from that which the Crown contends is apparent in the sentence itself. 13 His Honour found that on being arrested the respondent "immediately admitted" his part in the robbery and said that was a very significant matter. His Honour omitted to refer to the fact that the respondent had lied in his response to further questioning. Furthermore, at least so far as significance is concerned, the respondent lied when approached by police in relation to the events which were the subject of the charge on Form 1. 14 His Honour also found that since the commission of the offence, the respondent had gained insight into his criminality and his Honour found that the respondent had genuine remorse. The Crown pointed out that these findings were despite the fact that the respondent did not give evidence and a pre-sentence report of 7 April 1999 provided grounds for doubting these findings. However, there was a report from Dr Westmore, statements from the respondent's parents, not entirely uncritical of their son, and evidence from the respondent's sister, which supported the conclusions at which his Honour arrived, and they are not findings which this court can reject. 15 His Honour said that such remorse was important: "in assessing the weight of the plea of guilty and I feel that the plea of guilty in these matters entitles the prisoner to as much amelioration of sentence as any plea of guilty would." 16 Although this statement is not as clear as it might be, it seems to me his Honour was indicating he was giving the plea of guilty as much weight as he possibly could to any plea. His Honour ignored the principle that: "the extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable" - Winchester (1992) 58 A Crim R 345 at 350. See also Ellis (1986) 6 NSWLR 603 at 604. 17 Here, conviction would seem to have been certain and thus the weight his Honour gave to the plea excessive. 18 In his reasons, his Honour also observed: "Dr Westmore believes from the history, which he has taken very carefully, that the prisoner may well have been suffering from clinical depression at the time of his leaving school and likely at the time of his committing the major crime." 19 In fact, all Dr Westmore had said on this topic was:- "The description of Mr Khamas by his sister might suggest that he suffered from a period of depression during the last days of his schooling. She noted behavioural changes, truancy, irritability and temper outbursts. She noted an attitudinal change and a loss of respect towards his parents and other family members." 20 Again his Honour erred. 21 His Honour also observed that both the commission of the crime and the prospect of the respondent's imprisonment had had a grave effect on his family and, "were he to go to prison, it would affect the family in that way with their history much more deeply emotionally than it would affect other families" and that that was a feature which affected the case, although it was not "by itself such a feature as would cause the court to withdraw from a gaol sentence". 22 In my view, there was no evidence which would justify the conclusion "grave effect on his family." Furthermore, his Honour made no reference to the principle that: "the general rule is that hardship to members of an offender's family is generally irrelevant and can only be taken into account in mitigation of sentence in highly exceptional circumstances." R v. Byrne (unreported, CCA, 5 August 1998) 23 The circumstances were not of that highly exceptional nature, which permitted his Honour to regard the impact on the respondent's family of his imprisonment as a factor arguing against that course. 24 His Honour also remarked that: "the prisoner finally has been reporting daily since his arrest on 26 September and that is a feature which is a deprivation of liberty which is recognised in counting in reduction of sentence". 25 Implicit, in the way his Honour expressed himself, is that he took this matter into account in the respondent's favour. Yet again his Honour erred. 26 In R v. Herbert (unreported, CCA, 4 November 1993) in response to a submission that thrice weekly reporting to a police station should be taken into account in mitigation of sentence, Hunt CJ at CL said: "The mere fact that an accused person awaiting trial on bail has to report regularly to the local police station, and may be prevented, (without variation of the bail conditions) from travelling far away, cannot in my view of itself require any reduction in what would otherwise be an appropriate sentence." 27 Of course, a lengthy delay awaiting trial coupled with stringent bail conditions may operate in reduction in sentence but there is a vast difference between reporting to a nearby police station, albeit on a daily basis, and the types of "quasi custody" which have been taken into account in favour of a prisoner in cases such as Cartwright (1989) 17 NSWLR 243 and Eastway (unreported, CCA, 19 March 1992). 28 These errors are of such number and importance that the conclusion is unavoidable that his Honour's sentencing of the respondent miscarried. 29 On the other hand, there were a number of matters favourable or relatively favourable to the respondent which his Honour took into account and to which this court must have regard. One was his clean record. A second, also of substantial significance, is that the weapon used, although calculated to instil fear in the victims, was incapable itself of doing harm. His Honour found that the respondent had completely reformed and, while there is evidence which indicates that that finding was by no means inevitable, the finding is one which, in this case, this court must accept. 30 There were also some features in the respondent's past which argued in his favour. As Judge Moore found, the respondent had had a "circumstantially deprived background", at school had been subjected to racial taunts and did not fit in very well with other school children. Dr Westmore said that with the respondent's history the doctor was given, it would be difficult for anyone to escape some psychological injury. On the other hand, and fortunately, the respondent did not, according to Dr Westmore, suffer from any psychological disorder. 31 His Honour also accepted a view, expressed by Dr Westmore that the respondent would find prison more difficult than would the ordinary run of persons. 32 Finally, it seems clear that the respondent has strong support from a family which would seem to have many desirable features and of which, in his Honour's words, the respondent "has become a true member once again". 33 At the time, the sentence under appeal was imposed, this court had not delivered judgment in R v. Henry (1999) 46 NSWLR 346 although there were numerous earlier decisions wherein the court had stated that in cases of armed robbery, it was only in "most exceptional" - see Roberts, Lewis & McVean (1994) A Crim R 306 at 308, Lattouf (unreported, CCA, 12 December 1996) at pp 4 and 5, Hamish Younger Kerr (unreported, CCA, 26 August 1996) - circumstances that a full time custodial sentence should not be imposed. In Jones (unreported, CCA, 15 April 1994), referred to in Clark (1997) 95 A Crim R 585 at 590 the expression used was merely "exceptional", although there was no attempt to address the difference between this and the higher test. It is unnecessary to do so for the purposes of this case. See also Tocknell (unreported, CCA, 28 May 1998. 34 His Honour referred to this principle and took the view that the respondent's situation came within it. I doubt that. Despite all of the factors which can be advanced in the respondent's favour, there must be weighed up against him the fact that he indulged in a premeditated course of conduct designed to impose his will by force and fear of death on other members of the community going about their lawful activities. As was said as far back as R v. Broxham (unreported, CCA, 3 April 1986): "The prevalence of the offence in respect of which the applicant was sentenced was a matter of grave social concern. It is now well recognised that the victims of such armed robberies or attempted armed robberies may suffer devastating psychological damage consequent upon the trauma necessarily involved in these circumstances. In those circumstances sentencing judges would be referent to the trust which the community placed upon them. If they were not to mis-sentence consistent with the recency and prevalence of such cases." 35 Nothing has occurred since to lessen the weight of those words. 36 However, I do not find it necessary to resolve the question of whether this was a case where Judge Moore was justified in finding "exceptional circumstances" and imposing a non-custodial sentence. In Crown appeals, this court has a discretion whether to interfere even if the ground relied on is made out. It is now some seven months since the respondent was sentenced and there would be hardship in sending him to full time custody now. I regard the matter as close to the borderline but at the end of the day I have concluded that, in the exercise of its discretion, this court should not now impose a full time custodial sentence. 37 But if the respondent were not to be sentenced to full time custody, anything less than the maximum term of periodic detention for the offences of attempted armed robbery was manifestly inadequate. The leniency in such punishment has been remarked on by this court in Hallacoglu (1992) 63 A Crim R 287. 38 Before progressing further, I should say something concerning the decision of this court in Govindin (1999) NSW CCA 118 to which Mr Byrne referred us. There the respondent, to a Crown appeal, had been sentenced in respect of charges of accessory after the fact to armed robbery and robbery in company. 39 In respect of the first of these matters, conviction was deferred upon the respondent entering into a recognisance to be of good behaviour for two years and subject to other terms. On the charge of robbery in company, he was sentenced to 200 hours of community service. This court concluded that, although it was very much a borderline case, that case fell within the most exceptional type of case where a full time custodial sentence was not necessary. 40 Mr Byrne submitted that the facts on the instant case were more favourable to his client than those of Mr Govindin, and this court should follow what was doe in that case and also not interfere. 41 Certainly there are some matters which, considered in isolation, support or provide grounds for that submission. One distinguishing feature, however, is the fact that in Govindin 's case questions of parity arose and whether or not the court was obliged to take those matters into account and not ignoring the differences, or ignore further than it did the differences between Mr Govindin and his co-offenders, the fact remains that the court did place significant weight on the question of parity. 42 I do not regard, accordingly, the decision in Govindin as governing what approach this court should take on the question of whether the facts here brought it within the most exceptional case. In Govindin , the court, having declined to impose a custodial sentence, had in the exercise of its discretion dismissed the Crown appeal, their Honours recording in paragraph 42 that: "In all the circumstances and having regard to the fact that the Crown does not request any increase in a non-custodial sentence, the court should not otherwise vary the sentence but in the exercise of its discretion dismiss the Crown appeal." 43 I do not regard that decision in that case as one which constrains this court to adopt the same approach. As I have said, I regard anything less than the maximum term of periodic detention for the offences of attempted armed robbery, in this case, as manifestly inadequate. I make it clear that in expressing myself that way, I am not to be taken as indicating that a custodial sentence was not called for. In my view, the decision in this case will be based on the exercise of this court's discretion and not what the sentencing judge should have done. 44 The maximum term of imprisonment provided for by s.61 of the Crimes Act for assault is two years. Insofar as the respondent's commission of that offence can be considered in isolation, I do not regard the penalty imposed as manifestly inadequate and the Crown appeal against i should be dismissed. 45 In respect of both charges of attempted armed robbery, the Crown appeal should be allowed and the sentences imposed by Judge Moore quashed. In lieu thereof, the respondent should be sentenced on each charge to concurrent terms of three years imprisonment to be served by way of periodic detention. On each the sentences should commence on 28 April 1999 and the place at which they should be served is the Parramatta Periodic Detention Centre. 46 SULLY J: I entirely agree. 47 HIDDEN J: I agree. 48 SULLY J: The orders of the court will be as announced by Hulme J. oOo 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.