New South Wales Court of Criminal Appeal CITATION : REGINA v AKARI [2002] NSWCCA 253 FILE NUMBER(S) : CCA 60706/99 HEARING DATE(S) : 17 June 2002 JUDGMENT DATE : 17 June 2002 PARTIES : Regina Jean Akari JUDGMENT OF : Spigelman CJ at 1; Simpson J at 33; Blanch AJ at 34 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/2201 LOWER COURT JUDICIAL Sides DCJ OFFICER : COUNSEL : M C Ramage QC (Appellant) G E Smith (Respondent) SOLICITORS : Mark Rumore (Appellant) S E O'Connor (Respondent) CATCHWORDS : APPEAL AGAINST SEVERITY OF SENTENCE - armed robbery - whether adequate weight given to special circumstances when found - whether failure to give weight to mitigating subjective features of offender - APPEAL AGAINST SEVERITY OF SENTENCE - armed robbery - use and discharge of firearm - APPEAL AGAINST SEVERITY OF SENTENCE - particularisation of error on appeal - wide discretion reposed in sentencing judge LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 DECISION : Leave to appeal granted; Appeal dismissed. - 6 -IN THE COURT OF CRIMINAL APPEAL 60706/99 SPIGELMAN CJ SIMPSON J BLANCH J Monday 17 June 2002 REGINA v Jean AKARI Judgment 1 SPIGELMAN CJ: The Appellant was convicted of four separate offences against s97(1) of the Crimes Act 1900 all committed within a short period of time on 1 July 1998. He pleaded not guilty but was convicted after trial. 2 Count 1 was an attempted armed robbery which occurred about 12.55 on 1 July 1998. George Sterry aged 78 and his 71 year old wife were walking along Western Street, Revesby, when the Appellant, a passenger in a white car that had pulled into the kerb, beckoned Mr Sterry over. When Mr Sterry approached the car the Appellant pointed a gun at him and demanded his wallet. Mr Sterry said that he didn't have a wallet and walked away. Further demands for the wallet were made but Mr Sterry continued to walk away. 3 Mrs Sterry observed the number plate to be KCJ-141. She recorded this as soon as she got home. The number plate belonged to a car owned by the Appellant. Neither Mr nor Mrs Sterry saw the driver of the car. 4 Count 2 was an armed robbery that occurred about five minutes later when Mark Lack was walking in Polo Street, Revesby, a short distance from Western Street. A white Magna, driven by the Appellant with a female passenger, pulled up in the street on the opposite side of the road. The Appellant asked for directions to the railway station. Mr Lack crossed the road to assist. When he stopped to talk to the driver, a demand was made for his wallet and a gun produced. 5 Mr Lack did not have a wallet but handed over $10 and some personal papers out of fear. The Appellant told him to go behind the car or he would be shot. Mr Lack did as he was told. He too saw the number plate KCJ-141 as the car drove off. He wrote it down as soon as he got back to work. 6 Count 3 was an aid and abet armed robbery committed ten minutes later upon Leanne Selman. She was walking in River Road, Revesby, and was approached by a white car similar to a Magna. A female got out of the car and approached asking for directions to the Commonwealth Bank. As Ms Selman was giving directions the female demanded her bag. She noticed the female was holding a gun. Out of fear, Ms Selman handed over her backpack that contained her personal items. 7 She saw the driver and later identified the Appellant as the driver. The female told her to run or she would be shot. As the car drove off Ms Selman saw the number plate KCJ-141. She memorised it and told the police shortly afterwards at the police station which was not far away. 8 The fourth count involved an attempted armed robbery committed about ten minutes later on Canterbury Road close to the intersection of River Road at Revesby. Wayne Williams was the victim on that occasion. The Magna was stopped in the street and the female passenger asked Mr Williams for directions to the shops. When Mr Williams stooped over to give directions, the female demanded his wallet. When he refused the Appellant, who was in the driver's seat, lent over and pointed the gun at Mr Williams. 9 The gun then discharged with a loud bang, which left Mr Williams' ears ringing. The car drove off, leaving Mr Williams standing stunned on the footpath. 10 The Appellant lodged an appeal to this Court against both conviction and sentence. The appeal against conviction was abandoned. 11 In his remarks on sentence his Honour described the offences as serious. He referred particularly to the use of a weapon. There were threats to shoot on two occasions and, in the case of the fourth count, there was an actual discharge of the firearm. His Honour noted that the Appellant was only eighteen at the time of the offences, and accordingly his youth would be taken into account. His Honour set out his family and employment history. Of particular significance was the history of drug use. A psychologist's report was tendered at the sentence hearing. 12 His Honour noted the opinion of the psychologist that the Appellant did not have a violent disposition and that he was capable of having insight into the trauma that his offences visited upon victims, and that was a manifestation of the fact that he was not entirely egocentric. 13 His Honour noted, on the basis of the psychologist's report in particular, that the prospects of rehabilitation were good. 14 His Honour also noted that in March 1998 the Appellant was placed on a two year recognisance for larceny and possession of prohibited drugs. He was fined at the same time on a further three counts of possession of drugs and two counts of possession of equipment to administer drugs. The bond was current at the time the offences under consideration were committed. 15 Subsequently, on 4 June 1998, the Appellant was ordered to undertake 75 hours of community service for possession of drugs and was fined for a similar offence. This community service order was in force at the time of commission of the offences now before the Court. 16 His Honour further noted that his sense of optimism about the prospects of rehabilitation was reinforced by some degree of success by the Appellant in addressing his drug problem and also by the significant support from the family and friends of the Appellant. 17 His Honour made a finding of special circumstances for purposes of s44 of the Crime (Sentencing Procedure) Act 1999. In this respect his Honour referred to the Appellant's youth, the accumulation of sentences and the fact that this would be his first custodial sentence. 18 His Honour imposed fixed terms on two counts and indicated that the fixed terms were the length of the minimum term that he would otherwise impose had he been setting a minimum and additional terms. 19 On Count 1 his Honour sentenced the Appellant to eighteen months commencing on 13 April 1999 and expiring on 12 October 2000. On Count 2 he sentenced the Appellant to two years commencing on 13 April 1999 to 12 April 2001. These sentences have now expired. 20 On Counts 3 and 4 he sentenced the Appellant to five years, consisting of a minimum term of three years to commence on 13 April 2001 and expiring on 12 April 2004 and an additional term of two years, commencing on 13 April 2004 and expiring on 12 April 2006. Accordingly, the Appellant is eligible for parole on 12 April 2004. 21 Of particular significance in this appeal is the aggravating circumstance associated with the use of the firearm. The threat implicit in brandishing a weapon was accompanied in two cases by an express threat to shoot, and in one case by the actual discharge of the weapon. 22 There are further aggravating circumstances of some significance in that the offences were committed by the Appellant whilst on conditional liberty for prior offences. 23 Counsel for the Appellant submitted that the sentence was unduly harsh and severe. He submitted that the four incidents should be regarded as one episode of criminal conduct and, accordingly, that it was not appropriate to make the sentences partially cumulative, or at least not to the degree that his Honour imposed in relation to Counts 3 and 4. As noted, Counts 3 and 4 commenced at the expiry of Count 2. 24 Counsel for the Appellant submitted that the sentencing judge made a finding of special circumstances but that this was inadequately reflected in the total sentence as, in effect, the judge reduced the non-parole period by only three months. 25 Counsel directed attention to the limited degree of planning involved in that the car used, which was apparently unconnected with the Appellant, had his own number plates on it. There was no attempt to conceal or disguise himself by the Appellant. This, it was submitted, was not consistent with any significant degree of planning. 26 It was also submitted that his Honour failed to give weight to a number of matters, particularly the small amount taken, the youth of the Appellant and his limited intelligence, as reflected in the consulting psychologist's report, which showed he had an IQ of 65. The same report also noted the mental capacity of the applicant would have been affected by the significant marijuana use he had indulged in for some time, even at his young age. Counsel also referred to the appellant's limited criminal record of comparatively short duration. 27 This Court does not sit in sentencing appeals and determine them on the basis of what it would impose by way of sentence. This Court sits as a court of error on appeal from decisions by sentencing judges. No particular error was noted in the submissions or appears on the face of the reasons for sentence of the trial judge. 28 It was submitted some error must have occurred by reason of the end result, and that it was likely the error was of a character that gave either excessive weight to some of the matters of aggravation and inadequate weight to matters of mitigation, particularly the good prospects of rehabilitation and the youth of the Appellant. 29 These are difficult matters to determine. A trial judge is entitled to exercise a discretion within a wide range. In my opinion, his Honour's discretion was able to be exercised in the way in which his Honour chose to do, namely, by taking two of the counts and imposing shorter sentences on them, and making the other two counts entirely consecutive on those first two counts. 30 I am of the view that Count 4, which involved the actual discharge of the firearm, was of greater significance than Count 3, although his Honour imposed the same sentence on both. However, I would not interfere with either of the sentences which his Honour imposed and which are still current. His Honour referred to all the relevant circumstances. 31 The judgment of the balance to be accorded to the factors of mitigation against factors of aggravation was, in my opinion, a discretion which his Honour could properly exercise by sentences of the length he imposed, and also his decision to make them consecutive, in the way his Honour did. 32 In my opinion leave to appeal should be granted but the appeal should be dismissed. 33 SIMPSON J: I agree. 34 BLANCH J: I agree. 35 SPIGELMAN CJ: The orders are 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. 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.