New South Wales Court of Criminal Appeal CITATION : R v Raad [2002] NSWCCA 75 FILE NUMBER(S) : CCA 60795/01 HEARING DATE(S) : 18 March 2002 JUDGMENT DATE : 18 March 2002 PARTIES : Regina (NSW) (Respondent) Ahmad RAAD (Applicant) JUDGMENT OF : Dunford J at 1; Carruthers AJ at 16 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0385; 01/11/0818 LOWER COURT JUDICIAL Goldring DCJ OFFICER : COUNSEL : RA Hulme (Crown) BD Quinn (Applicant) SOLICITORS : SE O'Connor (Crown) Anderson Lawyers (Applicant) CATCHWORDS : CRIMINAL LAW - sentencing - armed robbery - subjective features LEGISLATION CITED : Crimes Act 1900, ss 91(1), 97(2) Crimes (Sentencing Procedure) Act 1999, s 44(2) CASES CITED: R v Henry (1999) 46 NSWLR 346 DECISION : See para 15. IN THE COURT OF CRIMINAL APPEAL 60795/01 DUNFORD J CARRUTHERS AJ Monday, 18 MARCH 2002 R v Ahmed RAAD Judgment 1 DUNFORD J: This is an application by Ahmed Raad for leave to appeal against the sentences imposed on him by his Honour Judge Goldring in the District Court at Wollongong on 24 October 2001 following his pleas of guilty to a number of offences. 2 The first matter was a charge of robbery whilst armed with an offensive weapon contrary to s 91(1) of the Crimes Act 1900 committed on 1 February 2001 at Mortdale when the applicant and a co-offender produced a knife and threatened to stab a person who was seated in the driver's seat of his car and took $55 and the victim's backpack. The applicant was arrested on 27 February, admitted the offence, was charged and admitted to bail. He pleaded guilty in the Local Court and was committed to the District Court for sentence. In respect of this offence the sentence of 2 years imprisonment with no non-parole period was the same as that given to his co-offender except that the co-offender's sentence was suspended, a course which was not open to his Honour in respect of the applicant because of the other matters. 3 On 3 June 2001 whilst on bail for this offence, the applicant approached Liam McGarr at the Downtown Backpack Hotel at 701 George Street, Haymarket, and in the foyer of that establishment, being in possession of a replica rifle and a knife, demanded the resident's money and threatened to shoot and/or stab him. The victim said he did not have any money so the applicant rifled through the resident's bag and stole a pair of sunglasses and a small mini torch. He also indicated during the attack that he had an AK47 Assault Rifle in his bag. He then left the premises and went to the vicinity of Paddy's Market. 4 Later that morning he approached two young men, Nathan Townsend, aged 18, and Michael Hopkins, aged 17, in George Street. He told them that he was a police officer and commenced to look in their bags, at the same time pulling his jacket aside so that both victims saw what appeared to be a silver coloured pistol tucked into the front of the applicant's trousers. They tried to walk away from him but he followed, telling them that he wanted both their bags, wallets and everything, or he would shoot them. He also told them he had just got out of gaol, apparently departing from the policeman story, and that he had nothing to lose, at the same time having his hand under his jacket in the vicinity where the victims had sighted the silver pistol. 5 Both victims, although scared and in fear of their safety, refused to hand over anything and walked up George Street to Town Hall Police Station where they reported the matter. A short time later the applicant was arrested by police in the foyer of Hoyts Cinema complex. He was found to have a silver coloured replica pistol and a gold coloured knife in a curved sabre and small amounts of cannabis and heroin on him. He declined to be interviewed or to take part in an identification parade. He was arrested, charged and bail refused. 6 Arising out of the events of that morning, having earlier indicated an intention to plead guilty, he was subsequently arraigned on two counts: (1) the robbery of Liam McGarr whilst armed with a dangerous weapon, and (2) the assault on Michael Hopkins whilst armed with a dangerous weapon with intent to rob, both offences being contrary to s 97(2) of the Crimes Act. Five other matters were taken into account on a Form 1 namely, (1) the assault of Nathan Townsend whilst armed with a dangerous weapon with intent to rob, (2) without reasonable excuse have in his custody in a public place a knife, (3) possess prohibited drug, namely cannabis leaf, (4) possess prohibited drug, namely heroin and (5) impersonate a police officer. 7 The offences of 3 June therefore related to three incidents; the first count, the robbery in the Downtown Backpack Hotel, the second count, and the matters numbered (1), (2) and (5) on the Form 1, related to the incident in George Street, and finally, the matters numbered (3) and (4) on the Form 1, the drug possession matters, which are not particularly important in the overall picture. 8 In respect of the two matters in the indictment and taking into account the matters on the Form 1, the applicant was sentenced to 6 years imprisonment with a non-parole period of 4 years. The sentences to be concurrent with each other and concurrent also with the fixed term of 2 years imposed for the February offence at Mortdale. The sentences were backdated to 27 May 2001 apparently to allow for a short period of custody in respect of the February offence before the applicant was admitted to bail. 9 In sentencing the applicant, the learned Sentencing Judge took into account a number of matters which he referred to in his Remarks on Sentence including that the offences in June were committed whilst on bail for the February matter and that this made them more serious, that in view of the time lapse the February matters and the matters of 3 June could not be regarded as a single instance of criminality, and that all the victims stated that they were frightened or terrified. His Honour further took into account the character references which had been tendered showing the applicant to be a person of good character prior to these matters, and the report of Doctor Richard Teo, which described him as suffering from an anxiety problem, moderate anxiety, but no other psychological problems. He also took into account the Probation and Parole Report and submissions made that at the time of these offences the applicant was subject to some family differences between his parents and that he had been unsettled by these differences, but that he was a relatively young man and there were good prospects of rehabilitation, his contrition and his plea of guilty. 10 His Honour then said that he took as a starting point a sentence of 8 years imprisonment but allowed a discount of 25 percent on account of the early plea of guilty thus reducing it to a term of 6 years and because of the prospect of rehabilitation he set a non-parole period of 4 years. In doing so, his Honour plainly found special circumstances because otherwise s 44(2) of the Crimes (Sentencing Procedure) Act 1999 would have required a non-parole period of not less than 4½ years. His Honour then made all the sentences concurrent. 11 In R v Henry (1999) 46 NSWLR 346 this Court laid out a number of guidelines for sentencing in cases of armed robbery and in the circumstances referred to indicated generally a head sentence of between 4 and 5 years. As the Court here was imposing sentences to be concurrent, it was in fact sentencing for three armed robberies and taking additional matters into account which justified a starting point somewhat in excess of 5 years. Admittedly, the attempts by the applicant were quite amateur in nature, the value of the items taken were minimal and there were not a number of common aggravating features such as vulnerable people (e.g. shop keepers at night or taxi drivers). The pistol in fact was harmless, although that fact was not known to the unfortunate victims who were terrorized by it. 12 In addition, there were a number of subjective factors applicable. The applicant was comparatively young, being 18 at the time, his only previous convictions were on 1 June 2001 at Sutherland Local Court for being carried in a conveyance without consent and goods in custody. He had been arrested on 20 February 2001, after the commission of the Mortdale offence, but before he had been arrested for that offence. It is unfortunate that having been fined for these matters on Friday 1 June, he went and committed the other serious offences two days later on the Sunday morning, 3 June. Prior to this mini crime spree the applicant had a clean record and had never been to gaol previously. He had attained his School Certificate and done a TAFE course as a hairdresser and was working as an apprentice hairdresser for his father. I have already referred to the character references. 13 The evidence establishes, and the Sentencing Judge found that there were a number of differences between his parents which had led to problems within the family and he had ceased working for his father and suffered a degree of anxiety. His prospects of rehabilitation appear good. In all the circumstances I consider that a starting point of 8 years was within the range of an appropriate sentencing discretion and that 25 percent discount for a plea of guilty was appropriate. 14 As I have said, his Honour reduced the non-parole period from 4½ to 4 years, but bearing in mind the youth of the applicant, his generally prior good record, the strong character references, the fact this is his first time in gaol and his prospect of rehabilitation, it seems to me that a greater allowance should have been made in adjusting the non-parole period. Notwithstanding the arguments about parity, I consider the sentence on the Mortdale matter was appropriate, particularly as it was made concurrent with the other sentences. 15 I would, therefore, grant an extension of time and I would grant leave to appeal. In respect of the matter on the s 51A document I would dismiss the appeal. In respect of the matters in the indictment I would uphold the appeal. I would confirm the head sentence of 6 years on each of the matters, to be served concurrently, but I would quash the non-parole period and in lieu thereof fix a non-parole period of 3 years commencing 27 May 2001 and expiring on 26 May 2004. 16 CARRUTHERS AJ: I agree. 17 DUNFORD J: The order of the Court will therefore be as I have indicated. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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