Regina v Wahabzadah [2001] NSWCCA 253

New South Wales Court of Criminal Appeal

CITATION : Regina v Wahabzadah [2001] NSWCCA 253 revised - 6/07/2001 FILE NUMBER(S) : CCA 60680/00 HEARING DATE(S) : 29/06/01 JUDGMENT DATE : 29 June 2001

PARTIES : Regina v Abdul Wahabzadah JUDGMENT OF : Wood CJ at CL at 24; Howie J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/0128 LOWER COURT JUDICIAL Phegan DCJ OFFICER :

COUNSEL : M.C. Grogan - Crown H. Dhanji - Applicant SOLICITORS : S.E. O'Connor - Crown D.J. Humphreys - Applicant CATCHWORDS : Criminal law - Sentence - failure of trial judge to refer to protective custody when determining special circumstances - disparity resulting from difference in finding of special circumstances - whether justifiable sense of grievance arises LEGISLATION CITED : Crimes Act 1900 - ss 51A, 97(2) Crimes (Sentencing Procedure) Act 1999 - s 44 R v Henry (1999) 46 NSWLR 346 Lowe v The Queen (1984) 154 CLR 606 CASES CITED: Postiglioni v The Queen (1997) 189 CLR 295 R v Bell [1999] NSWCCA 423 R v Muavae [2000] NSWCCA 88 DECISION : Leave to appeal granted, appeal allowed. The sentence of Judge Phegan varied to the extent that the non-parole period is quashed and in lieu a non-parole period of 2 years 3 months is specified. The non-parole period is to expire on 19 July 2002 the date upon which he is eligible to be released to parole.

IN THE COURT OF CRIMINAL APPEAL

60680/00

WOOD CJ AT CL HOWIE J

FRIDAY 29 JUNE 2001 REGINA v ABDUL WAHABZADAH JUDGMENT 1 HOWIE J: The applicant seeks leave to appeal against the sentence imposed upon him by Judge Phegan on 11 October 2000 for an offence of armed robbery with a dangerous weapon contrary to s 97(2) of the Crimes Act. The offence carries a maximum penalty of 25 years imprisonment. The applicant was sentenced to imprisonment for 4 years with a non-parole period of 3 years to date from 20 April 2000. The applicant is eligible for release to parole on 19 April 2003. 2 The applicant pleaded guilty to this offence before a magistrate and was committed for sentence to the District Court under s 51A of the Crimes Act. His Honour recognised that the applicant was entitled to a significant discount by reason of the utilitarian benefit of the plea of guilty alone. His Honour indicated that but for the plea, he would have sentenced the applicant to five years imprisonment. 3 Initially no complaint was made that the sentence imposed upon the applicant was manifestly excessive or that the discount granted was inadequate. The fundamental ground of appeal argued was that the applicant has a justifiable sense of grievance arising from the fact that his co-offender was sentenced by Judge Phegan to 3 years imprisonment with a non-parole period of 18 months. Because Judge Phegan distinguished the roles and conduct of the co-offenders in the commission of the crime it is necessary to indicate the facts of the matter in some detail. 4 On 20 April 2000, Maundy Thursday, the victim was working alone in a costume shop in Victoria Road, Gladesville. As she was preparing to close the store after late night trading, she heard a knock on the back door that opened onto a laneway running behind the shop. The victim opened the door believing it to be an acquaintance but found the applicant and his co-offender, Corneti Fusitua, standing on the doorstep. The applicant was standing in front of Fusitua and was holding a gun at the face of the victim. 5 Not surprisingly the victim was terrified. The two men pushed their way into the store and the victim was ordered to open the safe. She entered the combination, but because of a time delay the safe did not immediately open. When she explained why the safe had not opened, the applicant said to her, "If you're lying then I'll hurt you". Fusitua said, "No she's not, she is in shock". He then said to the victim, "We're here for the money, I'm not going to hurt you". 6 The victim described the applicant as wearing a balaclava and being the more aggressive of the two men. While they were waiting for the safe to open the applicant said, "If she's put the wrong combination in, I'm going to kill her". Fusitua then started to tie the feet of the victim together with braid from the store and said to her, "Tell me if I'm tying it up too tight". The victim told him he was not. Fusitua commenced to tie her hands together but stopped when the victim indicated that, if he did, she could not enter the pin number into the safe. 7 After a short delay the safe was opened and the victim placed the money from it into a backpack, which the robbers had brought with them. When the safe had been emptied, Fusitua tied the hands of the victim. When she complained that she would be left tied up all Easter, Fusitua said, "Don't worry, you won't be". After taking the victim's personal money and threatening her, the two men started to leave the premises. 8 Unfortunately for the applicant and his co-offender, the victim had been in the middle of a telephone call when she answered the door and the line had been left open. The person, to whom she had been speaking, overheard what was happening and alerted the police. The applicant and Fusitua were arrested before they were able to leave the premises. Initially both the applicant and his co-offender denied that there had been a gun used. However, Fusitua later indicated to police where the weapon, a replica pistol, had been hidden. The amount of money taken from the safe was $6,172. Both offenders refused to participate in a recorded interview after their arrest. The victim told police that the applicant was the meaner of the two men and Fusitua was a lot nicer to her. 9 In sentencing the applicant, Judge Phegan placed considerable reliance upon the guideline judgment of this Court in R v Henry (1999) 46 NSWLR 346. His Honour believed that, for various reasons which he gave, a comparison of the offence committed by the applicant and his personal circumstances with the type of offence and offender described by the Chief Justice in determining the guideline showed that the applicant's sentence should be toward the top end of the range specified in Henry. 10 At one stage in the proceedings Mr Dhanji, who appeared for the applicant, indicated that no complaint could be made about the sentence imposed upon the applicant if it were considered separately and apart from that imposed upon Fusitua. But some retreat from. or wavering in, that stance occurred during oral argument at least insofar as the non-parole period was concerned. I shall return to this matter later. Judge Phegan justified the apparent disparity in the two sentences on three bases: firstly, the role or conduct of the two accused during the commission of the offence; secondly, the assistance given by Fusitua in telling the police where the weapon was hidden; and thirdly their different subjective circumstances. In particular the differing non-parole periods can be seen to be a result of the fact that Judge Phegan found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act were present in the case of Fusitua but not in the case of the applicant. 11 In light of the fact that no suggestion is made that the disparity in the head sentences imposed could give rise to a justifiable sense of grievance on the part of the applicant it is unnecessary to canvas in detail the matters upon which that distinction was made. Some criticism was made of the weight his Honour gave to the difference between the conduct of Fusitua and that of the appellant during the commission of the offence, especially in light of the fact that it was Fusitua who tied up the victim. 12 However, one way in which his Honour used the difference between the behaviour of the applicant and that of the co-offender towards the victim, was in looking at whether the conduct on the part of the particular offender was out of character. Fusitua had no prior criminal record and his Honour appropriately disregarded some outstanding matters in the Local Court. In those circumstances the conduct of Fusitua during the course of the offence took on more significance than it might otherwise have done. His Honour was entitled to view Fusitua's conduct as consistent with his prior good character and that his involvement in such an offence was an aberration which manifested itself in the way he acted toward the victim. 13 On the other hand, the applicant had a record, which while not perhaps of the greatest seriousness, certainly disentitled him to the lenient approach which could be afforded to his co-offender. Perhaps more importantly, the record indicated that his behaviour on this night was not an aberration. There was in the applicant's record an offence of demand money with menaces in respect of which the applicant had been ordered to serve community service. On the same date, the applicant was ordered to perform community service in respect of a conviction for carrying a cutting weapon. Although these offences were committed in 1997, they were not irrelevant to the exercise of his Honour's discretion. The applicant also had other offences for dishonesty in his record. 14 As I have already indicated, a significant reason for the difference in the non-parole periods specified by his Honour, apart from the difference in the length of the terms of the sentence, is that Judge Phegan found special circumstances existed in the case of the co-offender but not in the applicant's case. It has been submitted on the applicant's behalf, that a disparity which is occasioned by such a finding is itself sufficient to warrant the intervention of this Court where there is material upon which a finding of special circumstances could have been made in favour of the applicant. I do not agree with this submission. 15 While I accept, as I must do, that the principle of parity applies in all aspects of a sentence, including the non-parole period, the principle is concerned with ameliorating a justifiable sense of grievance on the part of the offender. If a disparity is occasioned by the operation of the law, there can be no justifiable sense of grievance arising simply because a proper application of the law in two different cases has given two different results. Specifically, s 44 of the Crimes (Sentencing Procedure) Act mandates that a non-parole period be not less than three-quarters of the term of the sentence unless there are special circumstances for it being less. I do not believe that there is any breach of the principle of parity, simply because different non-parole periods are specified for different co-offenders because of different findings as to the existence, or extent, of special circumstances. 16 There is nothing in either Lowe v The Queen( 1984) 154 CLR 606 or Postiglioni v The Queen (1997) 189 CLR 295 to suggest otherwise. Quite the contrary, in the latter case even the majority of the High Court were of the view that there was no disparity by reason of the different non-parole periods specified between the two offenders. Disparity only arises when the difference between the two sentences cannot be justified by a difference in the degree of the culpability of the offenders or in their personal circumstances. A difference in a finding as to whether special circumstances exist is a difference in a finding as to the personal circumstances of the co-offenders, and, if justified on the material before the sentencing judge, there can be no basis in my view upon which any sense of injustice can arise either in the collective mind of the community or in the individual mind of a co-offender. 17 It was submitted, on behalf of the applicant, that two decisions of this Court authorise appellate intervention where there is a disparity resulting from a difference in the finding of special circumstances even if the difference in the findings were justified. In my view, neither of those decisions are authority for such a proposition, but, if they were, I would not be prepared to follow them. But in both R v Bell [1999] NSWCCA 423 and R v Muavae [2000] NSWCCA 88 this Court only held that the personal circumstances of the appellant required a finding that special circumstances existed and the failure of the sentencing judge to do so was an error. In each case the disparity in the minimum terms of the sentences imposed upon the appellant and the co-offender simply highlighted the error that had been made. 18 As it transpires that is what has happened in the present case. In determining whether special circumstances existed Judge Phegan did not avert to the fact, although there was evidence to support it, that the applicant had been in protection for a significant part of his custody prior to sentencing. The applicant had himself requested that he be placed on protection because he feared that he might suffer harm from particular prisoners who had been creating difficulties for him. It was the prisoner's first time in custody and he is a young man. 19 Although the fact that the applicant had placed himself into protective custody in the gaol was a matter relevant to the question of special circumstances, it was not decisive. It will not always require the sentencing judge to find special circumstances justifying a reduction in the non-parole period. Much will depend upon the particular circumstances such as the reasons for the prisoner being in protection, the prospects of his remaining in protection throughout the sentence and the actual effect that it has upon the prisoner and his prospects of reform. What weight such a factor will have will also depend upon the objective seriousness of the offence for which the sentence is passed and the extent to which other factors such as general and specific deterrence must be reflected in the non-parole period. 20 But it is a matter which should be considered and taken into account on the question of whether in the particular case special circumstances exist which warrant a lesser non-parole period than the statutory relationship prescribes. His Honour, with respect, does not appear to have considered it in the present case, and it is such an important matter in the case of a young man serving his first term in custody that there should have been some reference to it so that this Court could safely assume that his Honour took it into account. The failure to refer to such a matter in the circumstances of this case indicates to my mind that leave should be granted to the applicant. 21 Further material has been placed before the Court today in the event that the Court may have to sentence the applicant. It indicates that to a significant extent the fact that the applicant is on protection is impeding his ability to obtain assistance to address the drug addiction which has been at the basis of his offending on other occasions and which underlies the present matter. The relevance of this material is that it no longer seems apparent that a period of 12 months parole will be sufficient to assist him overcome his problems as Judge Phegan believed. It indicates that a shorter non-parole period is appropriate so that the applicant can be released into a more intensive rehabilitation programme than that available to him at present. 22 Of course the applicant will only be released to parole at the end of the reduced non-parole period if he has proved to the Parole Board that, notwithstanding his earlier offending, it is appropriate that he be released into the community. In my view there are special circumstances justifying a reduction in the non-parole period notwithstanding the seriousness of the offence. 23 I propose that the application for leave be granted and that the appeal be allowed. The sentence of Judge Phegan be varied to the extent that the non-parole period is quashed and in lieu a non-parole period of 2 years 3 months should be specified. The non-parole period is to expire on 19 July 2002, the date upon which the applicant is eligible to be released to parole. 24 WOOD CJ AT CL: I agree. The order of the court will be as Howie J proposed. ************