R v Billy TRAD [2003] NSWCCA 213

New South Wales Court of Criminal Appeal

CITATION : R v Billy TRAD [2003] NSWCCA 213 HEARING DATE(S) : 15 July 2003 JUDGMENT DATE : 31 July 2003

JUDGMENT OF : Sheller JA at 1; James J at 61; O'Keefe J at 62 DECISION : Leave to appeal granted; Appeal dismissed.

CATCHWORDS : Criminal law - Sentencing - Guilty Plea - Utilitarian Value - Relevance of other factors - Strength of Crown Case - Armed Robbery - Whether sentence manifestly excessive Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 Mill v R (1988) 166 CLR 59 R v Fahda [1999] NSWCCA 267 CASES CITED : R v Henry (1999) 46 NSWLR 346 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Winchester v The Queen (1992) 58 A Crim R 345 PARTIES : Billy Trad - Applicant Crown - Respondent FILE NUMBER(S) : CCA 60079/03 COUNSEL : T J Golding - Applicant D Howard - Crown SOLICITORS : D J Humphries - Applicant S E O'Connor - Crown

LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/0341; 00/21/1177; 99/21/0196 FILE NUMBER(S) : LOWER COURT Tupman DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60079/03

SHELLER JA JAMES J O'KEEFE J

R v Billy TRAD

The applicant was sentenced on charges contained in two indictments and six additional offences to be taken into account on the applicant's request. The second of these indictments charged the applicant jointly with one Bill Chahrouk with five counts of robbery armed with an offensive weapon, with six additional offences to be taken into account. The first indictment charged the applicant alone with one count of attempted armed robbery and two counts of robbery. The applicant pleaded guilty to all charges, in summary being one count of attempted armed robbery, seven counts of armed robbery and one count of aggravated armed robbery with a further four counts of armed robbery and two of larceny motor vehicle, one count of receiving and two of resisting arrest to be taken into account as additional offences. The sentencing Judge noted that the victims were usually young people, working alone in jobs that were not particularly well paid and that on all occasions the victims were put in fear, having knives or bars forced into their backs, being forced to the ground, being threatened and being led into store rooms and the like. Her Honour noted that severe punishment was called for for the offences in question. The sentencing Judge acknowledged that the pleas of guilty had a utilitarian value nonetheless because the trial was to last three weeks and the Crown conceded that it did not have a particularly strong case against either offender, particularly Chahrouk. Her Honour considered that the combination of the utilitarian value of the plea and the recognition of the relative weakness of the Crown case gave rise to a discount but no more than a range of between 10 and 15 per cent. The combined effect of the sentences on both indictments was a total term of twelve years with a non-parole period of eight years. It was submitted that her Honour erred in conflating two distinct principles in determining the appropriate discount to apply for the plea of guilty, those being the strength of the crown case against the accused and the utilitarian public benefit derived from the guilty plea. It was also submitted that the sentences imposed were manifestly excessive. HELD (Per Sheller JA, James and O'Keefe JJ agreeing):