R v BARRE [2002] NSWCCA 432

New South Wales Court of Criminal Appeal

CITATION : R v BARRE [2002] NSWCCA 432 FILE NUMBER(S) : CCA 60432/02 HEARING DATE(S) : 21 October 2002 JUDGMENT DATE : 11 November 2002

PARTIES : Regina Ali Ibrahim BARRE JUDGMENT OF : Heydon JA at 1; Hulme J at 2; Hidden J at 15

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 02/21/0047 LOWER COURT JUDICIAL Tupman DCJ OFFICER :

COUNSEL : Crown: P Ingram Respondent: AP Cook SOLICITORS : Crown: SE O'Connor Respondent: DJ Humphreys

DECISION : Appeal dismissed

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

60432/02 HEYDON JA HULME J HIDDEN J

Monday, 11 November 2002 Regina v Ali Ibrahim BARRE

Judgment 1 HEYDON JA: I agree with Hulme J. 2 HULME J:- On 7 May 2002 the Respondent to this Crown appeal pleaded guilty to an offence of being an accessory before the fact to an armed robbery which had occurred on 12 December 2001. He had also been charged with the offence of armed robbery itself but the Crown accepted the plea in full satisfaction of the indictment. On 21 June, Tupman DCJ made an order deferring sentence upon the Respondent entering into a good behaviour bond for a period of two years, to come up for sentence at any time if called upon for breach of the bond. The bond was conditioned on, inter alia, the Respondent accepting the supervision and guidance of the Probation and Parole Service and attend any programmes or counselling recommended by the service. 3 The robbery itself was committed by one Matthew Stanley. Her Honour found that Stanley and the Respondent were friends from school and had been seeing one another regularly for the month or so before the offence. On 12 December they met and over about an hour discussed committing the robbery at what was a local corner store which the Respondent used. The original idea was Mr Stanley's and the motive was to obtain funds for Mr Stanley. The Respondent determined that he could not enter the store because he would be recognised. He did however, according to her Honour's findings, assist with planning and by providing Mr Stanley with a backpack to be used and in which a large machete style knife which the Respondent knew would be used could be concealed. The Respondent accompanied Mr Stanley to near the store, waited, and then, after Mr Stanley had committed the robbery, ran off with him, at times carrying the backpack. Her Honour found also that the Respondent assisted Mr Stanley by his attendance near the store but, in an endeavour to be consistent with the Respondent's plea, held that his presence there was not in a way that made the Respondent a principal in the second degree. He had done nothing to prevent 2 customers entering the store while the robbery was taking place, nor had he sought to warn Mr Stanley about them and Her Honour found that the Respondent's conduct was capable of being viewed on the basis that he was not there with a view to providing assistance or that he had withdrawn from the offence. 4 In the store, Mr Stanley produced the knife to scare the owner. He demanded money from the till and when it was not produced himself reached over and obtained it. He also removed a number of packets of cigarettes, placing money and cigarettes in the bag. After having done the same with the knife he ran out. Unbeknown to the offenders, a young child of the owner was nearby – a matter the Crown sought to rely on in its submissions concerning the objective seriousness of the offence. 5 Both offenders were pursued and soon after arrested. The Respondent participated in an ERISP. In that the Respondent denied having any advance knowledge of the robbery, saying he was simply waiting outside while Mr Stanley bought a drink. When he saw Mr Stanley run out he thought Mr Stanley was in trouble and ran off with him. 6 Her Honour recorded that there was no indication on the part of the Crown that a plea to the alternative count would be accepted in full satisfaction of the charges until the day on which the matter was set down for trial, viz. 6 May. She seems to have favoured a submission that the plea was thus entered at the first available opportunity, saying that she had factored in a discount of 25% for the "early plea". 7 Her Honour also said that there was evidence available that would seriously call into question whether the Crown could prove the prisoner was a principal. Her Honour did not refer to the fact that Mr Stanley had undertaken to give evidence that the Respondent knew Mr Stanley was armed with a knife. 8 Her Honour characterised the Respondent's assistance as of a "relatively minor nature" and accepted that the Respondent "to a large extent felt himself overborne by the co-offender, not able to remove himself from the situation which he knew was wrong." Particularly in light of the Respondent's subjective circumstances, Her Honour characterised his actions as towards the bottom of the range and indicative of a degree of immaturity. 9 Those subjective circumstances included that the Respondent was just over 18, and was a school student with no prior convictions. He was born in Somalia migrating with his family to the United and Arab Emirates in the early 1980's and then migrating to Australia in 1997. His parents had returned to the Middle-East in 1999 leaving the Respondent and 2 brothers in Australia to complete their education. In the case of the Respondent that was continuing at the time of sentence. The Respondent had had a good upbringing. Due to his shame, the Respondent had only just told his brothers of the offence shortly prior to the time of sentence, and his intention was to inform his parents when they returned to Australia in July. Her Honour accepted that the Respondent was genuinely remorseful, that the offence was very much out of character, that his prospects of rehabilitation were excellent and that he had been led astray by his co-offender who had been in significant criminal trouble in the past. There was no indication of drug use by the Respondent and in accordance with his religious beliefs, he did not consume alcohol. 10 In this appeal, the Crown did not challenge any of the primary facts to which I have referred but criticised her Honour's characterisation of them submitting that the Respondent's assistance was substantial and included the Respondent's presence during the time leading up to Mr Stanley entering the store thus which would, so it was submitted, have operated to bolster Stanley's resolve. The Crown submitted that the principal offence was graver than that contemplated in the guidelines in R v Henry in that the knife was large and there was the victims' child nearby. It may be accepted that the latter fact was calculated to have made the victim's fears greater. The Crown submitted that the sentence imposed indicated that Her Honour had given too much weight to the subjective factors of the Appellant at the expense of the objective circumstances of the offence. 11 There is clearly something to be said for these submissions. When one has regard to the totality of the Respondent's conduct, not just in the provision of the back pack but in participation in planning and then in accompanying Mr Stanley to or to the vicinity of the offence "substantial" is a proper description of the Respondent's assistance. Considerations of general deterrence certainly argue that the "sentence" imposed upon the Respondent should have been substantially more severe. 12 It also seems to me that the Respondent was fortunate that her Honour took the view that he was entitled to an allowance for his plea of 25%. Although it may be that it was only at the last minute the Crown indicated its willingness to accept the plea in full satisfaction of the indictment, the fact of the matter is that the saving to the community in consequence of the plea was very limited – c.f. R v Thomson and Houlton (2000) 49 NSWLR 383 at 418. While one can understand the tactical advantage to someone charged in not admitting to any offence until the Crown indicates it will be satisfied with such a conviction, it does not seem to me that someone who seeks to preserve that benefit should be entitled to the same discount for an ultimate plea as someone who admits their guilt at an early stage. In one sense they have had their reward by the Crown's acceptance of their plea to the lesser charge. However this matter was not argued and it is unnecessary that I express any final view on it. 13 It is however fair to say that the Respondent's subjective circumstances were appreciably more favourable than one commonly finds in cases of this nature. Indeed there was really no aspect of them which did not argue in his favour and her Honour's finding that the Respondent was, in what was his first incident of criminality, to a large extent overborne also argues for leniency. 14 Directed to the topic, the Crown did not suggest that never could a non-custodial sentence be imposed for an offence of the nature of that committed by the Respondent. Its contention was that this was not such a case. However, it seems to me that it was within the legitimate exercise of Judge Tupman's discretion to so regard it and this, whether or not the epithet "substantial" is a fair description of the Respondent's assistance. That is not to say that other judges may well have taken a different view. But her Honour took the view she did and I am not persuaded that the sentence was manifestly inadequate. In these circumstances, I would dismiss the appeal. 15 HIDDEN J: I agree with Hulme J. *******************