New South Wales Court of Criminal Appeal CITATION : R.V. WATE [2001] NSWCCA 474 FILE NUMBER(S) : CCA 60692/00 HEARING DATE(S) : 19 November 2001 JUDGMENT DATE : 19 November 2001 PARTIES : Vula WATE - Appellant Regina - Respondent JUDGMENT OF : Barr J at 1; Adams J at 31 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/71/0006 LOWER COURT JUDICIAL Latham DCJ OFFICER : COUNSEL : Mr P.M. Winch for the appellant Mr L.M.B. Lamprati for the Crown SOLICITORS : D.J. Humpreys for the appellant S.E. O' Connor for the Crown DECISION : See Judgment at Paragraph 30 IN THE COURT OF CRIMINAL APPEAL 60692/00 Barr J Adams J 19 November 2001 Regina v Vula Wate Judgment 1 Barr J: Vula Wate applies for leave to appeal against a conviction imposed upon him in the District Court. He pleaded guilty to one count of robbery in company with wounding. The maximum penalty for that office is twenty-five years' imprisonment. Judge Latham sentenced him to imprisonment for eight years and fixed a non-parole period of four years. 2 On the night of 17 October 1997 not long after midnight, the applicant and two other young people, Voni Rahim and Christine Carbery, caught a taxi from a rank in Griffith. The driver was Mr Kevin Patrick Cunningham. 3 His statement makes chilling reading. He knew Ms Carbery but not the other two.Carbery sat in the front of the taxi and directed Mr Cunningham where to take the three of them. The other two sat in the back. When the taxi arrived at its destination the applicant and Rahim got out and went into some premises. Carbery stayed with the driver and asked him about the fare. Eventually she too left the taxi, pretending that she was going to get money to pay the fare. She returned and engaged Mr Cunningham in conversation. She sat in the front seat and kept asking him how much the fare was and, notwithstanding that he told her a number of times, continued to ask him. She became more aggressive. 4 Whilst Mr Cunningham was so diverted Rahim pulled open the driver's door of the taxi, switched off the motor and pulled the keys out of the ignition. At the same time the applicant got into the back seat and put his arms around Mr Cunningham's throat. The headlock prevented Mr Cunningham moving at all. His head was turned to the right and he was being choked. 5 Rahim had a large kitchen knife that he had apparently obtained from the premises they had entered. He demanded all Mr Cunningham's money. He poked the point of the knife into the right side of Mr Cunningham's stomach. He pushed it and it punctured the skin. He kept pushing it backwards and forwards. All the while the applicant was choking Mr Cunningham in the headlock. Mr Cunningham managed to raise his left hand to his throat in order to try to get some space to breathe. He pulled money out of his pockets and handed it to Rahim. 6 Carbery came to the driver's door, reached into the taxi and took out a bag containing money. She also stole Mr Cunningham's mobile telephone. These things she showed to Rahim. 7 Rahim then said that he would kill Mr Cunningham and lunged at his eyes with a knife. As he did so he said "Eyes". Mr Cunningham put up his right forearm to defend himself. Rahim made a number of passes with the knife and then thrust the blade right through the forearm. Then he stabbed Mr Cunningham in the chest. Mr Cunningham felt bad pain. He managed to take hold of Rahim's arm and Carbery's wrist. Somehow he got out of the taxi and found himself standing on the road. Rahim tried to kick him in the testicles. Carbery was encouraging him to do so. He tripped backwards on to the driver's seat and tried to close the door so that he could lock himself inside the taxi. The driver's door was pushed hard on to his shins. He managed to report on the taxi radio that he had been stabbed. The three were still kicking at the cab. Eventually they walked away. 8 The stab wound to the chest required internal and external stitches. The wound to the right arm also needed stitching. There was a small gash on the right side of the stomach. The left and right shins were grazed. An amount of $250 was stolen together with some small personal items. Mr Cunningham thought that he was going to die. As her Honour observed, he was lucky to survive. 9 The applicant was arrested and the police interviewed him. He admitted travelling in the taxi and going to the premises where it stopped but denied taking part in the attack. He said that when he realised that the taxi driver had been held up he ran away. 10 He continued to deny having played any part in the offence until the day fixed for his trial, 17 October 2000, three years to the day after his attack on Mr Cunningham. 11 The first ground of appeal complains that the applicant has a justifiable sense of grievance by comparing his sentence with those imposed on Rahim and Carbery. 12 Having accepted that the applicant did not instigate the offence, her Honour referred to the co-offenders and observed that the respective roles of the three were of little moment in sentencing because this was a joint criminal enterprise to rob Mr Cunningham whilst armed with the knife. 13 The submission made in this court is effectively that her Honour meant that there was no point or purpose in drawing distinctions between the roles of the attackers. I do not accept that submission. That is not what her Honour said. It was only because the applicant acted as he did that Rahim was able to sustain his attack on Mr Cunningham and for him and Carbery to steal the money they wanted. They were a well organised team. 14 Rahim was sentenced by Blanch CJDC to imprisonment for nine years with a non-parole period of six years. He had been sentenced before her Honour pronounced sentence upon the applicant and her Honour was informed of the result. However, his Honour's remarks on sentence were not made available to her Honour. Rahim had a serious criminal history which included a prior entry for aggravated robbery. He was serving the additional term of the sentence imposed for that offence when the three attacked Mr Cunningham. In 1994 he had been dealt with for assaulting with intent to rob. 15 Carbery was sentenced later on by Finnane DCJ QC. However, she was convicted only of the offence of robbery in company, a lesser offence attracting a maximum sentence of twenty years' imprisonment. She had a criminal history including convictions for assault, resisting arrest and malicious damage. She was on conditional liberty at the time of this offence. She was sentenced to imprisonment for four years six months with a non-parole period of two years. 16 It was submitted the while her Honour referred to the question of parity, she failed sufficiently to differentiate between the sentence imposed on Rahim and that imposed on the applicant. Greater allowance ought to have been given to him because of his unblemished criminal history, because he was not on conditional liberty at the time of the offence and because he was not the instigator of the offence. 17 I do not think that the applicant has any justifiable sense of grievance by comparing his sentence with that imposed on Rahim. There are significant differences between the two cases. First, although Rahim was the only one who wielded the knife and was treated by all the sentencing judges as the instigator, and although he had a significant criminal history, he confessed the part that he had played as soon as the police spoke to him about the matter. He was originally charged with attempted murder but as soon as the Crown indicated in the Local Court that it was prepared to accept a plea of guilty to a lesser charge in discharge of any future indictment the plea of guilty was offered. Blanch CJDC found that the plea of guilty was entered at the earliest opportunity. Rahim satisfied his Honour that he was always intending to plead guilty to a charge of wounding with intent to murder. 18 The applicant, on the other hand, denied for three years that he had taken any part in the attack. It was only as his trial was about to begin that he changed his plea to guilty. He must have realised how strong the Crown case was. 19 Secondly, her Honour expressed real doubts about the applicant's claim to contrition. The late plea was no evidence of contrition. The applicant gave evidence before her Honour and asserted that he had felt under pressure from Carbery to take part in the offence. He said that she had told him that if he did not go along with what the other two wanted she would set her relatives on to him. He said that it was as though she were forcing him to carry out the attack. He did not feel like doing so, it was just the way she was forcing him. The applicant called Rahim to give evidence before her Honour but in cross-examination he denied that Carbery had made any threats towards him or the applicant. Her Honour rejected the applicant's claim of any pressure exerted by Carbery. 20 The next important point of difference between the applicant and Rahim is that the applicant asked her Honour in imposing sentence to take account of a number of other offences. Her Honour did so. There were eight of them. The appeal papers, and apparently the papers before her Honour, contain no more than a list of the offences. No facts are given but it appears that on 6 December 1998 the applicant committed one offence of using offensive language, one of assault, one of assaulting a police officer and one of resisting a police officer. On 26 December in the same year he committed a further assault and on the very next day he assaulted a police officer. On 28 January 1999 he failed to answer his bail. On 13 January 2000 he again failed to appear. Her Honour was obliged in imposing sentence to make appropriate allowance for the criminality of these offences. There is no reason to believe that any of the offences was a serious one it its kind, but there were eight of them. Four comprised assaults on people, two of them being police officers in the execution of their duties. Collectively they required a substantial increase in the head sentence and the non-parole period imposed by her Honour. 21 As I have observed, Carbery was sentenced after a plea of guilty to a lesser offence and it is even harder for those reasons for the applicant to establish a ground of appeal by reference to her sentence. 22 The next ground of appeal asserted that her Honour failed to give enough weight to the applicant's prior good behaviour. He had a stable family life and was full-time carer for his three children aged six, four and nineteen months. The part he played in the attack of Mr Cunningham, was, at that stage of his life, out of character. 23 Her Honour did not overlook any of these matters. She made express reference to them. I do not think that the resulting sentence shows that her Honour gave them insufficient weight. 24 The final submission asserted her Honour's failure to assess properly the objective matters which were favourable to the applicant. They were the fact that he was not the instigator, that her Honour misled herself by observing that otherwise the respective roles of the three were of little moment and by giving insufficient weight to the plea of guilty. I have already dealt with the first two of those matters. 25 The sentence imposed does not suggest to me that her Honour failed to give sufficient weight to the plea of guilty or any matter, subjective or objective, favourable or unfavourable to the applicant. 26 There is one final matter, mentioned I believe for the first time in this application, that the applicant spent a number of periods in custody before sentence was imposed. They were a period of fifty-five days between 17 October and 9 December 1997, a period of twelve days between 3 April and 15 April 1998 and a period of forty-one days between 23 December 1999 and 3 February 2000. Altogether the applicant was held in custody for one hundred and eight days. 27 The reasons for the custody were apparently these. He was granted bail not long after his arrest but was unable to meet the conditions of bail. Later on he appears to have failed to comply with a condition of bail and thereby to have found himself back in custody. The applicant appeared before her Honour off bail and her Honour was left to assume that he had not been kept in custody. The transcript of the debate which took place before her Honour shows that there was no mention of the fact of pre-sentence custody. The remarks on sentence do not mention the subject. I think that the only appropriate inference to draw is that the practitioners overlooked the matter entirely, if they even knew about it. Her Honour was simply not informed about it. 28 It was a matter of some importance in sentencing. If her Honour had been informed of the one hundred and eight days' pre-sentence custody she would have made an appropriate allowance. Although therefore I do not think that the attack on the overall length of the sentence and the non-parole period has been made good, it seems to me necessary for this Court to adjust the sentence so as to give the applicant credit for the periods of pre-sentence custody which he has served. 29 I would therefore propose that the sentence be changed so as to begin and end one hundred and eight days earlier than ordered by her Honour. 30 I propose these orders. Grant leave to appeal. Allow the appeal. Quash the sentence imposed by her Honour and in lieu sentence the applicant to imprisonment for a period of eight years commencing on 1 July 2000 and expiring on 30 June 2008. Fix a non-parole period of four years expiring on 30 June 2006 upon which date the applicant would be eligible for release on parole. 31 ADAMS J: I agree with what has been said by the presiding Judge. I would, however, make the observation that as to there being any error demonstrated in the reasons of the learned sentencing Judge, I consider that she gave adequate and appropriate consideration to the question of disparity and that her sentence correctly reflects the relevant principles of the criminal law relating both to a deterrence and to the appropriate mode of dealing with relevant types of young men in the offenders situation. To my mind her sentence was correct when considered in isolation and it was correct when considered by way of comparison with the sentence imposed by his Honour the Chief Judge of the District Court on Rahim. 32 BARR J: The orders of the court are therefore as I have proposed. oOo 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.