R v Symiziris [2001] NSWCCA 38

New South Wales Court of Criminal Appeal

CITATION : R v Symiziris [2001] NSWCCA 38 FILE NUMBER(S) : CCA 60657/99 HEARING DATE(S) : 16/02/01 JUDGMENT DATE : 16 February 2001

PARTIES : Regina v Odyssais Symiziris JUDGMENT OF : James J at 19; Whealy J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0196 LOWER COURT JUDICIAL English DCJ OFFICER :

COUNSEL : L. M. B. Lamprati - Crown P. M. Strickland - Applicant SOLICITORS : S. E. O'Connor - DPP D. J. Humphries - Applicant

Sentencing Act 1989 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act Power v The Queen (1974) 131 CLR 623 at 629 CASES CITED: R v Levy (NSWCCA 20 February 1992, unreported) R v Farroukh (NSWCCA 29 March 1996, unreported) DECISION : Leave to appeal granted. Appeal against sentence allowed. The sentence imposed by English DCJ on 12 October 1999 is quashed and in lieu thereof the applicant is snetenced to a term of imprisonment of 24 months commencing on 12 October 1999 with a non-parole period commencing on 12 October 1999 with a non-parole period commencing on 12 October 1999 and expiring on 16 February 2001. That will mean that the applicant is entitled to be released immediately.

IN THE COURT

OF CRIMINAL APPEAL

60657/99

JAMES J WHEALY J

FRIDAY 16 February 2001

REGINA v Odyssais SYMIZIRIS

JUDGMENT

1 JAMES J: It appears in this matter there should be a finding of special circumstances and I call upon Whealy J to give the first judgment. 2 WHEALY J: On 30 August 1999 the applicant pleaded guilty to one count of robbery. The robbery was of Ella Darveniza of $600, the property of Video Access. The Crown accepted a plea to that count in full satisfaction of the indictment. 3 On 12 October 1999 English DCJ sentenced the applicant to a fixed term of two years imprisonment commencing on that date. The offence of robbery carries a maximum penalty of fourteen years. I should add that her Honour also took into account a Form 1 matter which related to receiving stolen goods, such offence occurring on 5 June 1996. 4 The facts are, in short compass. The applicant entered the Video Access store at Marrickville on 4 June 1996. He threw a bag on the counter and demanded that the victim fill up the bag with money. The victim became frightened and put $600 from the till into the bag. The applicant then left the store. The store manager, Mr Stroud, and a customer, Mr Hudson, described the offender and on 5 June 1996 police executed a search warrant on the applicant's premises and there located certain items of clothing. The applicant was arrested on this day and was granted bail. Miss Darveniza later identified the applicant from a number of photographs provided to her by police. 5 There is one ground of appeal and that is her Honour erred in imposing a fixed term of imprisonment rather than imposing a minimum term of imprisonment with an additional term. This sentence was imposed prior to the enactment of the Crimes (Sentencing Procedure) Act 1999 and it is, therefore, necessary to look to s 6(2) of the Sentencing Act 1980. This section provides as follows: "(1) When sentencing a person to imprisonment for an offence, a court may decline to set minimum and additional terms for the offence and may set instead a fixed term of imprisonment that the person must serve for the offence. (2) A court may decline to set minimum and additional terms for a person if it appears to the court that it is appropriate to set a fixed term: (a) because of the nature of the offence or the antecedent charger of the person, or (b) because of other sentences already imposed on the person, or (c) For any other reason that the court considers sufficient. (3) A court is required to state the reason for its decision to set a fixed term instead of minimum and additional terms." 6 It is well established that the predominant purpose of setting an additional term relates to rehabilitation of the offender (Power v The Queen (1974) 131 CLR 623 at 629). The reasons for her Honour setting the fixed term appear at p 5 of the sentence where her Honour said: "The prisoner is sentenced to a fixed term of twenty-four months commencing on 12 October 1999 and expiring on 11 October 2001. I have taken into account the matter contained on the Form 1. I decline to set a minimum and maximum term because of the nature of the offence and the comments contained in the pre-sentence report that the prisoner would not benefit from attendance at programs nor from supervision from the Probation and Parole Service." 7 In relation to the second matter mentioned by the sentencing judge, it appears that her Honour may have misunderstood or misread the material in the pre-sentence report. I shall return to that material in a moment. 8 It was clear from her Honour's remarks that she recognised that, although the applicant had achieved a reasonable degree of rehabilitation since the commission of the offence, he had not in her view, completely rehabilitated at the time he came for sentence. So much appears from p 4 of her reasons. The pre-sentence report, however, considered a number of community-based sentencing options, that is options other than full-time custody, and made some comments in that regard. The last of those appears at the foot of p 2 in the following terms: "(4) It is not considered that a recognisance with supervision would be of benefit as he has family supports." 9 The thrust of the pre-sentence report was that the applicant was suitable for options other than a full-time custodial sentence. The statement I have quoted, to which her Honour made reference, merely emphasises, in that context that a recognisance with supervision was not considered an option because the applicant did not require supervision, belonging, as he did, to a strong family network and environment. Her Honour appears, so far as one can tell, to have treated the statement as meaning that the applicant would not benefit from a period of supervision upon his release from custody at all. In my opinion, the report did not mean this and I understand, fairly read, that the Crown submissions recognise the possibility that this may be the way her Honour has interpreted the statement. 10 The primary purpose of setting an additional term is to provide for rehabilitation, as I have said. A court may decline to set a fixed term for a person who is a serious and persistent recidivist, because such a person is unlikely to benefit from supervision (Levy NSWCCA 20 February 1992, unreported). On the other hand, a court may set a fixed term for a person who is extremely unlikely to re-offend because they do not require post release supervision (Farroukh NSWCCA 29 March 1996, unreported). The applicant was neither a persistent criminal nor a recidivist. There were matters in his history of a criminal nature but these were mainly minor matters - possession of drugs on a number of occasions, driving offences and the like. In 1995 he received a fixed term of four months imprisonment on a goods in custody charge with bail refused, for one month. It is clear that the applicant did not fit into either of the categories I have mentioned. 11 As to the offence itself, I think it is correct to categorise it, as the submissions did, as unexceptional and did not of itself, warrant the imposition of a fixed term. There is nothing about the offence which would legitimately lead to the conclusion that there was no need to provide for "mitigation of the punishment of the applicant in favour of his rehabilitation through conditional freedom once he had served the minimum term" (Power v The Queen). As a consequence, the applicant was, in my view, entitled to a minimum term and an additional term. It is, therefore, necessary for the Court to intervene. 12 The re-sentencing process is, in some respects, not an easy one. The facts were as her Honour found them to be and I accept those. Similarly, the applicant's subjective features were as described by her Honour. 13 The applicant was then aged thirty-four. He is of Greek descent and came from a stable background. His parents were hard working and honest. He left school at aged fifteen and obtained an apprenticeship which he completed. He was not fond of his trade and obtained other employment. He assisted his parents in their cleaning business and maintained one of their rental properties. He was involved in a serious car accident in 1986 and was said at the time of sentence to continue to suffer from ongoing disabilities. 14 It is clear that he had made a number of attempts to rehabilitate himself. He was described generally as an unsophisticated and perhaps naive man. 15 The Crown has submitted that the offence of robbery is a serious one and this Court should not set a total term of lesser duration than the two-year period set by her Honour. It is argued that not less than two years should be served in custody. It is not, however, clear whether that was her Honour's intention. Section 6(3) of the Criminal Appeal Act requires the Court, if it is of the opinion that some other sentence, whether more or less severe, is warranted, to quash the sentence and pass the warranted sentence in substitution. 16 In all the circumstances of the matters to which I have referred, it is my opinion that the interests of justice would be adequately served by the following orders: 17 1. That the applicant have leave to appeal. 2. The appeal be allowed and the sentence imposed by her Honour be quashed. I propose in lieu thereof there be imposed a sentence of two years imprisonment. Such sentence to commence on 12 October 1999. I propose a non-parole period which does not expire before today.