New South Wales Court of Criminal Appeal CITATION : R v Armanios [2001] NSWCCA 110 FILE NUMBER(S) : CCA 60795/99 HEARING DATE(S) : Friday 23 February 2001 JUDGMENT DATE : 23 February 2001 PARTIES : Regina v David Armanios JUDGMENT OF : Grove J at 1; Simpson J at 13 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/2140; 98/21/3121 LOWER COURT JUDICIAL Ford A/DCJ OFFICER : COUNSEL : P.G. Berman SC (Crown) A.P. Cook (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant) CATCHWORDS : Criminal Law and Procedure - Sentence - Armed Robbery - Pleas of Guilty - Intellectual Handicap of Offender - Failure of Sentencing Court to Advert to Matters of Mitigation - Resentence R v Letteri CCA unreported CCA 18 March 1992 CASES CITED: R v Scognamiglio 56 A Crim R 81 R v Thomson & Anor (2000) 49 NSWLR 383 Pearce v The Queen (1998) 194 CLR 610 DECISION : Appeal Allowed; Resentenced IN THE COURT OF CRIMINAL APPEAL 60795/99 GROVE J SIMPSON J Friday 23 February 2001 REGINA v DAVID ARMANIOS JUDGMENT 1 GROVE J: David Armanios seeks leave to appeal against the severity of sentence imposed upon him at the Campbelltown District Court by his Honour Acting Judge Ford. The applicant appeared before his Honour for sentence in respect of crimes which were specified in two indictments, together with a Form 1 which contained two further offences. Although there were slight differences, the essential offences were all for armed robbery or robbery in company and allied offences. His Honour imposed a series of sentences, the effect of the encompassing sentence amounting to a total of eight years with a minimum term component of some six years imprisonment. 2 It is not necessary for the purposes of this appeal to relate all the facts and circumstances of the offences. They followed more or less the same pattern. The victim in each case was a retail trader of one sort or another. The crimes were inspired by a drug habit which the applicant needed to feed. He is a young man aged about twenty-four now. He was born on 29 May 1976. 3 There is one unusual procedural circumstance to which reference might be made, and it is this. The first of the total of six offences comprised in the indictment and the Form 1 occurred in 1998. The other offences occurred much later. He was on bail when the second group of offences took place. What had happened is that the applicant appeared before the District Court and pleaded guilty to the first offence, that is, the one on the first indictment committed on 24 June 1998. Although that was a charge of robbery in company, the learned presiding judge determined that the matter appeared appropriate for referral to the Drug Court, although he had noted the limitations upon the availability of the scheme under the appropriate statute, particularly the limitation concerning crimes which involved violent conduct. 4 It appeared that the applicant was encouraged by this reference and there was some evidence before Ford A/DCJ that he showed some promise shortly after the referral to the drug court. However, in the event he was refused participation in the scheme under the appropriate statute, and later there was the outbreak of the further offences to which I have made reference. I do not see his disappointment as a matter of excuse, but it is a matter that can be taken into account as one of the overall circumstances touching the applicant. 5 Leaving to one side a complaint concerning the division of the total term into minimum and additional elements, counsel for the appellant in this court has relied upon three bases of attack to the sentence below. These can shortly be described as the absence of reference by his Honour in his remarks as to how he took into account the pleas of guilty of the applicant; second, the absence of reference to the circumstance that it appeared that it was likely that the applicant would spend his time in custody in protection and thereby serving his sentence in more onerous conditions than usually; and, third, it was claimed that he was suffering from an intellectual disability of such a nature as it would make him an unsuitable vehicle for the significant manifestation of any element of general deterrence. 6 Senior Counsel for the crown has very candidly indicated to the court in relation to the first two matters, that is to say the absence to reference as to how the plea of guilty was taken into account and the absence of reference to protection, that it would have been better if his Honour had exposed the processes of his reasoning and indicated how these matters were taken into account. For my part, the absence accumulates into what this court should determine is an error in the sentencing process thus involving this court exercising its jurisdiction and coming to the issue of resentence. 7 Before doing so, however, I should make reference to the third ground pursued on behalf of the appellant, the claim that the applicant was intellectually handicapped. There was evidence that at one time whilst the applicant was on a methadone programme his test results indicated that he was in the bottom two per cent of the population so far as intellectual functioning was concerned. There are other indications that this may not be a permanent and accurate estimate. For my part I am unable to reach any final conclusion on the matter, but it seems to me that proper guidance can be obtained by reference to seeing how the applicant can conduct himself. This is manifest in his ability to respond appropriately to questioning by police and, in particular, to see to his own interests during such interviews. I am unpersuaded that the applicant falls into that category of person as described in cases such as the R v Letteri unreported CCA 18 March 1992 and R v Scognamiglio 56 A Crim R 81. Nevertheless, his relatively low position in the overall average of the population so far as intellectual ability is concerned is a matter which, combined with his youth and the promise which he showed after the reference to the drug court, can be used in determining the length of time during which the applicant should be in prison before being eligible for parole. 8 Since this matter was dealt with at Campbelltown District Court this court has delivered judgment in R v Thomson & Anor (2000) 49 NSWLR 383 indicating that it is appropriate in some such circumstances not only that a plea of guilty be recognised but there be an indication by a sentencing court as to how at least the utilitarian value of the plea of guilty has been taken into account. I mention of course that at the time s 439 of the Crimes Act was in operation and that only required his Honour to state reasons in the event that he was not granting any discount on account of the pleas of guilty. It cannot, in my view, be effectively argued that his Honour was unaware that pleas of guilty had been entered. Indeed, it is said in the opening remarks of the sentencing proceedings. Nevertheless, as I have said, it would have been appropriate for there to be some indication as to how that was taken into account. 9 As I have already said, I believe that this court should allow the appeal and proceed to resentence. In so doing I would regard the encompassing term of eight years as appropriate for all six offences, but I would make a reduction in the overall term of about 25 per cent in order to evaluate the pleas of guilty that were made. The pleas seemed to have been both timely and useful in all the circumstances. I would also conclude that given the youth of the offender, such intellectual handicap as he has and the promise which at least on one occasion he showed, that it is appropriate that his non-parole period should be less than three-quarters of the overall term which I would assess for the majority of offences at six years. I would also note and accept the affidavit material showing that the applicant remains in the more onerous form of custody on protection and that it is predictable that he will substantially remain in that form of custody. 10 I am conscious that I am required on resentence to pay heed to the authority of the High Court in Pearce v The Queen 1998 194 CLR 610. This is always difficult to apply in circumstances such as this. I have mentioned that there are two indictments, together with matters to be taken into account. Nevertheless, I am certain that in the particular circumstances of this case the important sentence will be the overall encompassing imposition. 11 Accordingly, I would propose that the following orders be made. That the application for leave to appeal be granted, the appeal be allowed and the sentences below quashed and in lieu thereof the following sentences be imposed. On the first indictment the applicant be sentenced to four years imprisonment to date from 9 May 1999. That sentence is to take into account two matters on the Form 1. I do not specify a non-parole period by reason of the further sentences which I am about to impose on the second indictment. 12 On the second indictment on each of counts 1, 2 and 3 I would sentence the applicant to six years imprisonment to date from 9 May 1999. I would specify a non-parole period of four years, also dating from 9 May 1999, and therefore indicate that the applicant is eligible for parole on and from 8 May 2003. I note that the non-parole period is but two-thirds of the full term of the encompassing sentence. On this resentence I have varied the statutory ratio for the reasons I have already given. 13 SIMPSON J: I agree. 14 GROVE J: The orders of the court therefore will be as I have proposed. ********** 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.