Reported Decision : 108 A Crim R 218 New South Wales Court of Criminal Appeal CITATION : Regina v CHMAIT [1999] NSWCCA 217 FILE NUMBER(S) : CCA 60119/99 HEARING DATE(S) : 2 August 1999 JUDGMENT DATE : 2 August 1999 PARTIES : The Crown (Appellant) Ziad Chmait (Respondent) JUDGMENT OF : Newman J at 1; Sperling J at 23; Greg James J at 27 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/1225 LOWER COURT JUDICIAL OFFICER : Payne DCJ COUNSEL : P G Berman (Crown) B J Rigg (Respondent) SOLICITORS : S E O'Connor (Crown) Burston Roberts & Cole (Respondent) CATCHWORDS : Crown appeal; sentence manifesty inadequate; robbery in company ACTS CITED : Crimes Act 1900 R v Ranse, CCA, unreported, 8 August 1994 R v France, CCA, unreported, 9 July 1992 CASES CITED: R v Bradley, CCA, unreported, 26 October 1993 R v Murray, CCA, unreported, 13 December 1993 R v Hampton, (1998) 44 NSWLR 729 R v Bloomfield (1998) 44 NSWLR 734 DECISION : Appeal allowed IN THE COURT OF CRIMINAL APPEAL 60119/99 NEWMAN J SPERLING J GREG JAMES J MONDAY, 2 AUGUST 1999 REGINA v Ziad CHMAIT JUDGMENT 1 NEWMAN J: This is a Crown appeal from a sentence imposed by her Honour Judge Payne in the District Court on 15 February this year. Before her Honour the respondent had pleaded guilty to the offence of robbery in company contrary to the provisions of s 97 of the Crimes Act 1900. The maximum penalty for an offence under s 97 of the Crimes Act 1900 is penal servitude for twenty years. 2 In addition to his plea of guilty to the crime of robbery in company, the respondent asked that certain Form 1 matters be taken into account. Three offences were requested to be taken into account, namely stealing, break, enter and steal and failing to appear. In the event, her Honour sentenced the respondent to the head sentence of two years and nine months, comprising a minimum term of six months, commencing on 15 February 1999 and expiring on 14 August 1999, with an additional term of two years and three months, commencing on 15 August 1999 and expiring on 14 November 2001. 3 No complaint was raised as to her Honour's basic findings of fact in the matter. A complaint was raised that her Honour, having found special circumstances and thus dividing these minimum and additional terms as she did, did not give reasons for finding special circumstances. That I may say is entirely correct and I shall deal with that matter later in these reasons. 4 However, as I have said, no complaint was made as to her Honour's findings of fact and her Honour's findings of fact were as follows: that at about 9.30pm on Thursday 5 September 1996 the respondent was in company with another male in Woodriffe Street, Penrith in the vicinity of the National Australia Bank. At the time the respondent was wearing a radio scanner. He and his co-offender observed a lady, aged twenty-seven, walk to the night safe with a night wallet. The pair of them ran towards the unfortunate woman and pushed her to the ground, causing her to fall onto the footpath. The co-offender then grabbed the night wallet which contained $1,083.70 and passed it to the respondent. They then both fled. A number of Penrith Council workers observed what had occurred and gave chase, apprehending the pair. 5 Ultimately the police arrived and the respondent was found to have a Uniden brand scanner two-way radio on him. Happily, the property, including the money and the night wallet, were recovered. 6 Initially the respondent denied the charge. In fact, his plea of guilty in the matter was not made until relatively late in the piece. However, having said that, the fact is that the respondent did plead guilty and, as this Court has said on many occasions, he is entitled to a degree of leniency. However, not, I would have thought, the degree of leniency which her Honour thought the timing of the plea entitled the respondent to receive. 7 Her Honour in dealing with the crime itself observed as follows: "I cannot though in any way put to one side the objective seriousness of the offence. This was a mean robbery. It was committed on a vulnerable victim, a vulnerable female victim late at night". 8 No exception can be taken to her Honour's statements or findings of fact in that regard. Indeed, in terms of objective seriousness this Court has stressed that cases of this type deserve severe punishment. See R v Ranse, unreported, Court of Criminal Appeal, 8 August 1994, where Gleeson CJ dealt with the concept of criminal justice in cases such as this. One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others. 9 Again, in R v France, unreported, Court of Criminal Appeal, 9 July 1992, Gleeson CJ again stressed the objective seriousness of cases of this type. Again, one only has to look to cases such as R v Bradley, unreported, Court of Criminal Appeal, 26 October 1993, and R v Murray, unreported, Court of Criminal Appeal, 13 December 1993, to underscore the seriousness with which this Court views crimes of this kind. 10 Criminal statistics kept by the Judicial Commission indicate that the minimum term imposed in this case was very much at the very bottom of the range. There may be cases which have had minimum terms for the crime of robbery in company imposed which would be a month or so less than the minimum term imposed here, but having said that, the sentence imposed in this case falls right at the bottom of the range. 11 Her Honour in dealing with the matter observed that the matters to be taken into account could not be put to one side. Again, that was an absolutely correct statement of principle. Particularly so as one of the matters in the Form 1, namely the offence of break, enter and steal, was a very serious matter indeed. That involved the respondent entering a record shop, forcing entry by means of a crowbar and once inside the shop he stole two record player turntables valued at $800 each, an Onkyo brand tuner valued at $300, 200 compact discs and 120 long-playing vinyl records, a very serious offence of break, enter and steal. The offence of stealing involved a two-way radio and the third matter was a matter about which I need not make any comment. However, I do stress that the second matter to be taken into account in the Form 1 involved a very serious breach of that general rule. 12 However, a pre-sentence report which was described by the respondent's counsel as being a glowing report, was prepared. In that report it was indicated that the respondent was making good steps in trying to overcome a drug dependency problem, that he wished to learn a trade and that his relationships with his girlfriend and her family were not only on a sound basis but were beneficial to him. 13 It was also indicated the extent of the remorse which the respondent had expressed for his actions. It seems to me that the question of rehabilitation from drug dependency, the respondent's determination to undertake a trade and the question of the family role in which he has now entered were matters which could properly give rise to a finding of special circumstances for the purposes of s 5 of the Sentencing Act. 14 While her Honour in making the finding of special circumstances which she did, should have identified those matters which led her to come to that conclusion and by failing to do so in my view fell into error, the fact is that there is certainly evidence and I have indicated some of the matters upon which her Honour could well have found special circumstances. In other words, while saying there was error in not identifying the matters which led her to find special circumstances, it was certainly open to her on the evidence before her so to find. 15 However, having said that, I am of the view that the sentence of a minimum term of six months in these circumstances is a sentence which is so manifestly inadequate as to demand the intervention of this Court. I should add in so saying that this Court has, in cases such as R v Hampton (1998) 44 NSWLR 729 and R v Bloomfield (1998) 44 NSWLR 734 stressed that not only the full term of the sentence must be reflective of objective criminality but so must the minimum term and in my view this minimum term, far from reflecting the objective criminality falls far short of so doing. 16 It was put to the court that even if the court were of the view that error had occurred, in the light of the fact that the minimum term imposed by her Honour expires on 14 August next, namely some twelve days from now, this Court should, following decisions such as Everett in the High Court, conclude that it should exercise its discretion and not interfere. 17 I am of the view that, the sentence being so manifestly inadequate in this case, despite the fact that if the court does not interfere the respondent is entitled to release in twelve days time, this Court should interfere. 18 The respondent has a criminal record including matters of theft and indeed the crime here was committed within a very short time of his being discharged from the prison system, a matter, again when looking at the subjective matters, which should have been taken very firmly into account by her Honour when imposing the minimum term which she did. 19 Accordingly, I am of the view that despite the fact that the respondent, if the court did not interfere, would be entitled to be released in twelve days time, it is not a matter which would cause the court to exercise its discretion not to interfere here. 20 Further, plainly enough if this Court does interfere it must bear in mind the fact that matters such as double jeopardy do occur and should not impose a sentence which perhaps should have been imposed at the time of trial. In other words, I am of the view that this Court should interfere and impose a sentence involving the imposition of a minimum term of a greater length than that which was imposed, but in so doing I take into account the fact that if I were sentencing as the primary judge I would impose a much more severe sentence both in terms of the total term as well as the minimum term. However, questions of double jeopardy should be taken into account and that I will do. 21 Taking that attitude, I am of the view that this Court should not interfere with the total sentence of two years and nine months. I would also find special circumstances and I indicate that I so find, having taken into account the matters I have referred to earlier in these reasons. 22 What I would propose is this: that the minimum term and additional term imposed by her Honour be quashed and in lieu thereof the respondent be sentenced to a minimum term of penal servitude for eighteen months, commencing on 15 February 1999 and expiring on 14 August 2000, and an additional term of one year and three months, commencing on 15 August 2000 and expiring on 14 November 2001. 23 SPERLING J: I would wish to say for myself that the respondent's determination to rehabilitate himself is appreciated. This is a case where there are very good prospects that the respondent will now lead a law-abiding life. 24 However, it is impossible to overlook the seriousness of the offences which are involved and the circumstances in which they were committed. The principal offence involved a physical assault on a defenceless woman which must have been a terrifying experience for her and was such an experience, on the evidence which was before the court. That offence was committed within a matter of months of the respondent being released from prison in relation to an earlier offence. 25 The other matters taken into account on sentence include a serious case of break, enter and steal. Everything that could possibly have been said to support the result below was said by Ms Rigg but, in view of the considerations which I have mentioned, I cannot reasonably classify this matter as falling among the least serious instances of robbery in company. 26 The respondent will perhaps be disappointed by this result and may be quite angry about it. I add these comments in the hope that he will not allow the result to alter his determination to turn his life around. But, for the reasons I have mentioned concerning the offences and the circumstances in which they were committed, I feel I have no alternative but to agree with the orders proposed by the presiding judge and with his reasons for those orders. 27 GREG JAMES J: I agree with what has been said by the presiding judge and the conclusions he has reached. I also agree with what has been said by his Honour Sperling J. 28 NEWMAN J: The orders of the court will be as I have proposed and I also direct that the terms of the respondent's parole be as previously indicated. 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. 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