REGINA v. AKBARY [2001] NSWCCA 491

New South Wales Court of Criminal Appeal

CITATION : REGINA v. AKBARY [2001] NSWCCA 491 FILE NUMBER(S) : CCA No. 60307 of 2001 HEARING DATE(S) : Wednesday 28 November 2001 JUDGMENT DATE : 28 November 2001

PARTIES : REGINA v. AKBARY, Said Najibullayh JUDGMENT OF : Hidden J at 1/16; Greg James J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/0097 LOWER COURT JUDICIAL Christie, DCJ. OFFICER :

COUNSEL : Crown: E.A. Wilkins App: In person SOLICITORS : Crown: S.E. O'Connor App: In person CATCHWORDS : Criminal law - sentence - appeal - armed robbery - effect of serious mental illness - record of prior offences - progress to rehabilitation in gaol - no error in trial judge's approach. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: Henry (1999) 106 A. Crim. R. 149 DECISION : Leave to appeal granted; appeal dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

No. 60307 of 2001 HIDDEN, J. GREG JAMES, J.

WEDNESDAY 28 NOVEMBER 2001 REGINA v. SAID NAJIBULLAH AKBARY

JUDGMENT 1 HIDDEN, J: We are in a position to give judgment. 2 GREG JAMES, J: Said Najibullah Akbary seeks leave to appeal against sentence imposed upon him on a count of robbery whilst armed with an offensive weapon, an offence under s.97(1) of the Crimes Act 1900 punishable by a maximum penalty of 20 years imprisonment. He pleaded guilty to that offence and at the time it was dealt with sought that the trial judge take into account another offence of robbery whilst armed with an offensive weapon on a Form 1. The offence on the indictment was said to have been committed on 16 October 2000, that on the Form 1 on 7 September 2000. 3 He pleaded guilty in circumstances, which revealed that he had a lack of recollection, no doubt due to his mental state and also to having ingested drugs and alcohol. But he retained sufficient recollection so as not only to have confessed to one of crimes to the police, but also so that when he gave evidence before the learned trial judge he was able to refer, to some extent, to what he believes must have happened. 4 He was sentenced to a term of imprisonment of four years six months to date from 16 October 2000. The trial judge expressed that sentence in this way:- "I sentence the prisoner to four and a half years imprisonment. I find special circumstances that enable me to fix a minimum term of two and a half years and an additional term of two years." 5 His Honour backdated the sentence to the date on which the offender went into custody, that is, 16 November 2000. His Honour expressed that as meaning that the non-parole period would date from 16 October 2000 and run to 15 April 2003. His Honour said:- "And the additional term of two years during which the prisoner will be eligible for parole will date from 16 April 2003 to 15 April 2005." 6 It is apparent his Honour has used terms relating to the different sentencing regimes that applied in this State both before and after the passing of the Crimes (Sentencing Procedure) Act 1999. Nonetheless, the effect of the sentence is quite clear and that is, taking into account the form one offence, his Honour passed a total sentence of four and a half years including a non-parole period of two years six months. That means that the offender would be eligible to be released on parole after serving in actual custody two and a half years although that release would not be automatic. 7 His Honour referred, after hearing evidence from the offender, to the offender's extensive record and to the device, whether meat cleaver or meat hammer with which one of the offences was committed. He set out how, on 16 October 2000, the offender had, armed with that device, demanded money and cigarettes from a shopkeeper and caused some considerable degree of terror in those present. His Honour concluded that the armed robbery was not particularly well planned nor was it planned over a substantial period of time. Indeed, the offender had left a psychiatric hospital, Cumberland Hospital, only a comparatively short time before the robbery was committed. His Honour referred to the unfortunate prior history of the offender, which contains numerous offences. These include offences of robbery of shopkeepers when armed with a knife. The offender had been in custody on many occasions the record discloses. The present offence indeed occurred only about five weeks after a similar event which had given rise to the offence described on the Form 1. 8 The psychiatric material that was tendered, including from Dr. Brian Boucher and Dr. Bruce Westmore, as well as the Probation and Parole report of 11 May 2001 from Mr. Chris Simons, all showed that it was not surprising that the prisoner would have had the defect in memory to which he has referred. 9 The psychiatric history set out in those reports demonstrates that the prisoner has a serious mental illness which mental illness would require that special attention be given to a sentence, which will not contain so much emphasis on matters of general or special deterrence as might otherwise be the case. In the context of the prisoner's prior record, notwithstanding that record may well have been contributed to by the effect of the illness and by the effect of the prisoner's self-medication from polydrug, abuse the sentence was, in my opinion, as lenient as it could be consistent with the authorities binding upon us. His Honour, the trial judge, appears to me to have made, in that regard, no error. 10 The grounds of appeal asserted are that the sentences should have been mitigated as the offences were committed whilst under the influence of alcohol and drugs. That they were so committed might be conceded. Further, it might be conceded that this is one of those exceptional cases referred to by Wood, CJ. at CL. in the guideline judgment in Regina v. Henry (1999) 106 A. Crim. R. 149 where the resort to drug and alcohol does operate to mitigate somewhat the penalty that might otherwise be imposed since it was not a chosen lifestyle to resort to those drugs but one to which the prisoner may well have been driven by his mental illness. 11 The appellant, in a letter dated 20 October 2001 referred to the circumstances in which he is detained as a forensic patient and before us today has referred to those circumstances. What he has told us has been received from him, without objection by the Crown to us being given that material in that form. He says that he is detained for up to 22 hours in his cell and on protection. These matters give rise to considerations of how onerous his sentence has become for him having regard to the incidence in him of the disease. Notwithstanding those matters, he says he has completed numerous courses successfully in gaol including relating to his own ability to handle his illness. He has now accepted his diagnosis of mental illness, he shows a degree of insight and is now drug free. He accepts that he had, until recently, rejected the diagnosis and turned to drugs and submits that his crimes, both past crimes and present crimes, arise only in that context. 12 Nonetheless, notwithstanding the power of these submissions and his desire to be given a fair go and a second chance to lead a normal productive life, this court sits only as a court to review error rather than a court which sentences itself in the absence of detected error below. For an application for leave to appeal against sentence to succeed it is necessary to demonstrate that the trial judge fell into legal error. All the matters to which the prisoner has referred, including the circumstances of the prisoner being on protection, the circumstances of the onerous features of the prisoner's confinement, the significance of his gaining insight into his problem and indeed the very reference to what Justice Wood said in Henry (supra) were taken into account by the trial judge. And, his Honour took into account the fact that the offender was suffering from a mental illness or disability, which would mitigate his culpability. 13 Nonetheless, it is binding law upon us that although the considerations of general deterrence might be substantially diminished by such factors, that is not to provide a licence for the commission of offences by offenders who are not so mentally ill as not to be responsible for their actions. Consequently, I am unable to see that there is any error would which warrant this court's interference with the course taken by the trial judge. 14 It will, therefore, be necessary, since the matter has been fully argued, to grant leave to appeal but in my view the appeal should be dismissed. 15 Before leaving it, however, I consider that the reports which have been provided to us with the papers and a copy of this judgment should be provided to the Corrective Services Commission with a view to them having regard to the matters referred to in them in the hope that appropriate steps might be taken, if it is at all possible or feasible, to ameliorate the conditions under which the prisoner is serving his sentence and so that those matters he has advanced might be considered by the Parole Board when it comes to the question of granting him release once the non-parole period of his sentence has expired. 16 HIDDEN J: I agree. The orders of the court will be those proposed by Greg James, J. ********