New South Wales Court of Criminal Appeal CITATION : Regina v Salim Miski [2002] NSWCCA 392 revised - 27/09/2002 FILE NUMBER(S) : CCA 60682/02 HEARING DATE(S) : 27/09/2002 JUDGMENT DATE : 27 September 2002 PARTIES : Regina Salim Miski JUDGMENT OF : Buddin J at 1; Smart AJ at 25 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0790 LOWER COURT JUDICIAL Wall ADCJ OFFICER : COUNSEL : PG Ingram (Crown) PM Winch (Applicant) SOLICITORS : SE O'Connor (Crown) DJ Humphreys (Applicant) CATCHWORDS : Appeal against sentence - steal from the person and assault occasioning actual bodily harm - drug dependent young offender with bad record - on bail and on a suspended sentence - sentences not manifestly excessive - further material explaining circumstances in which applicant on protection - sentence reduced. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 R v Bailey (1988) 35 A Crim R 458 R v Bloomfield (NSWCCA unreported, 15 July 1998) R v Doan (2000) 50 NSWLR 115 R v Nichols (1991) 57 A Crim R 391 CASES CITED: R v Pham (1991) 55 A Crim R 128 R v Simpson (2001) 53 NSWLR 704 R v Smith (1987) 44 SASR 587 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Tran [1999] NSWCCA 109 DECISION : Leave to appeal granted. Appeal allowed (in part). Quash the sentence imposed in the District Court in respect of the offence of steal from the person. In lieu the applicant is sentenced to imprisonment of three and a half years to commence on 30 April 2001 and to expire on 29 October 2004 with a non-parole period of two years three months to commence on 30 April 2001 and to expire on 29 July 2003 at which time he will be eligible for consideration for release to parole. Sentence in relation to the offence of assault occasioning actual bodily harm is confirmed. IN THE COURT OF CRIMINAL APPEAL 60682/02 BUDDIN J SMART AJ 27 SEPTEMBER 2002 REGINA v SALIM MISKI Judgment 1 BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 4 October 2001. In respect of a charge of stealing from the person he was sentenced to four years' imprisonment with a non-parole period of three years. That offence attracts a maximum penalty of fourteen years' imprisonment. In respect of a charge of assault occasioning actual bodily harm the applicant was sentenced to a concurrent fixed term of twelve months' imprisonment. That offence carries a maximum penalty of five years' imprisonment. Both sentences were ordered to commence on 30 April 2001, the date on which the applicant was arrested and went into custody. 2 The facts may be shortly stated. At about 4 pm on 30 April 2001 the victim was speaking on his mobile phone whilst walking along Darlinghurst Road, Kings Cross. The applicant approached him and grabbed the phone from him. The applicant then left the scene with another male who had joined him. The victim chased after both of them. The applicant then gave the victim's mobile phone to the other male, who ran off with it. The victim caught up with the applicant who said to him "Give me 70 bucks and I'll get your phone back." The victim said "OK." The applicant then grabbed the victim in a headlock with his left arm and with a closed right fist punched the victim in the mouth. As a result the victim suffered abrasions to his bottom lip which was swollen as well as bleeding from a cut. 3 After a struggle, the victim said "I'll give you the money, just get my phone back." The applicant said "If you give me $100, I'll guarantee I'll get your phone back." The victim said "OK, I'll give you $200 just get my phone back." The applicant then requested that the victim follow him which he proceeded to do. A civilian who had observed the incident reported the matter to police who shortly thereafter observed the applicant and the victim walking down the street. The applicant was arrested after the victim identified him to the police as his attacker. The mobile phone was valued at being worth $1250. 4 The applicant was just short of his 20th birthday at the time of these offences. He had a criminal history which included five separate appearances in the Children's Court. On the first three occasions he had been dealt with either by way of probation or by being placed on a bond. In March 1999 he was placed on a control order in respect of no fewer than 77 different offences of dishonesty as well as for two charges of common assault. He was returned to custody in December 1999 when he breached his parole. On 18 October 2000 he was given a short term of imprisonment in the Local Court for a series of offences which included in excess of 20 matters of dishonesty. On 31 October 2000 he received a 12 months suspended sentence for another six offences of dishonesty. He was accordingly in breach of the conditions attached to the suspended sentence when he committed the two offences in respect of which this application is brought. 5 Moreover the applicant was on bail in respect of yet further matters of dishonesty at the time when he committed the present offences. Bail had been granted upon conditions which included a requirement that the applicant report to police and also that he accept the supervision of the Probation and Parole Service. He failed to comply with either of those conditions. 6 At the time when the applicant stood for sentence, he had a number of outstanding matters to be resolved. In respect of several of them he had been convicted but had yet to be sentenced. In relation to some of those offences he had not attended court when required to do so. Warrants had nonetheless been issued for his apprehension in order that he could be brought before the court and dealt with. Overall the applicant had a dismal history which featured repeated breaches of court based orders and failures to respond to supervision and counselling. 7 Subsequent to these proceedings, the applicant was sentenced on three separate occasions in the Local Court for various offences of dishonesty as well as for a common assault. Terms of imprisonment were imposed by the respective Local Courts but on each occasion the sentences were made wholly concurrent with, and indeed were subsumed within, the sentences imposed for the present offences. 8 The sentencing judge quite properly acknowledged that the applicant had entered pleas of guilty at an early stage of proceedings and in accordance with the principles enunciated in R v Thomson & Houlton (2000) 49 NSWLR 383, allowed a discount of 20% from the otherwise appropriate penalty. His Honour accepted that the pleas also demonstrated some degree of contrition and remorse. 9 His Honour had regard to the applicant's background which was set out in a pre-sentence report. The applicant is one of seven children of Lebanese parents. His parents migrated to Australia in 1972 but the family (or at least members of it) have returned to Lebanon for extended periods since then. The applicant completed Year 10 at school but had acquired few educational or vocational skills. He had been unemployed for long periods of time although he had commenced an apprenticeship as an electrician with his uncle. He gave that up when he became addicted to heroin at the age of 17. His motivation for committing these offences was to acquire money for drugs or gambling. The probation officer reported that the applicant "claims he didn't care who he hurt as his motivation was getting more drugs and describes feeling powerful and strong when under the influence of illicit substances". 10 The applicant's drug problems have led to continual conflict with his family which is apparently highly regarded in the community. The applicant's father has said that his son is no longer welcome in the family home. None of his siblings, it may be noted, have been in trouble with the law. 11 The probation officer provided a rather pessimistic assessment of the applicant in her report. She said that: Mr Miski presents as a man who at a young age has a significant history of drug addiction and offending. He has yet to fully address the issues that have brought him before the Courts and his impulsive behaviour to get him in trouble. He has been supported and given many opportunities by his family to lead a law abiding life but he continued to abuse that support by way of offending and continued drug abuse. He is left with, at this time, limited family support and he has minimal insight into his behaviour except to say that he has problems with drugs. He claims that the only time he thinks of the hurt he has caused his family is when he is in custody. The offender states he cannot guarantee that if he was released to the community he would not fall into the same drug and gambling pattern. 12 On behalf of the applicant it is pointed out that he has undertaken some courses whilst in custody. As against that there are a number of breaches of prison discipline which have been recorded against him. That led to his being moved from one gaol to another with the result that he has been unable to complete some of the programs upon which he had embarked. The probation officer reports that the applicant "is described as a high maintenance inmate and [that he] was placed on a 8 week behaviour management plan." 13 The applicant's primary submission is that the sentences which were imposed were manifestly excessive. In support of this submission the applicant relies upon statistics from the Judicial Commission which, it is contended, demonstrate that the sentences imposed were at the top of the range. As the Crown points out it is necessary to exercise caution in the way in which such statistics are utilised. See R v Bloomfield (NSWCCA unreported, 15 July 1998). Nevertheless that material only confirms my initial impression that the sentences which were imposed whilst undoubtedly severe, especially for a young offender, were nevertheless within, albeit towards the top, of the appropriate range. Nor would I be prepared to accept the applicant's submission that "neither offence was…far from the bottom of the range in terms of objective seriousness" particularly when one has regard to the entirety of the incident in which the applicant was involved. 14 The applicant contends that the sentencing judge fell into error in a number of respects. First, it is submitted that his Honour erred in failing to take into account the fact that the offences could have been dealt with summarily. The applicant readily acknowledges that it was open to the DPP to elect, given all the circumstances, to have these matters dealt with upon indictment. I would not be prepared to infer, the matter having been raised during the sentence proceedings, that his Honour overlooked the matter as was submitted. In any event a sentencing judge may, but is not bound to, take such a matter into account. See R v Doan (2000) 50 NSWLR 115. In my view it was a matter, in any event, of very little consequence in all the circumstances of this case. 15 Secondly, it is submitted that the sentencing judge erred in failing to appropriately take into consideration the applicant's youth. Criticism was made of the following passage which appear in the Remarks on Sentence. His Honour said that: I am conscious of the fact that he is a young offender and the sentencing policy of the Court is in a proper case, and I emphasise those words, in a proper case, to craft a sentencing order which is directed towards the rehabilitation of the offender and not be a crushing sentence in relation to a person of young age. However that policy is subject to the qualification that where serious crimes are committed the Court should not be weakly merciful in relation to a young offender where the appropriate sentence is one that should be weighted towards deterrence, both general and specific. 16 It is submitted that in the result his Honour effectively eroded the critical importance of the need to craft a sentence, in respect of a young offender, that is directed towards rehabilitation. Whilst it is recognised that considerations of retribution and deterrence should, in general terms, be regarded as subordinate to the need to foster the rehabilitation of young offenders, there is no requirement that that principle must be automatically applied in every case. Where young offenders, for example, conduct themselves like adults and commit serious crimes, they may attract less leniency than their age might otherwise warrant. See R v Pham (1991) 55 A Crim R 128; R v Tran [1999] NSWCCA 109. Furthermore where young offenders have made regular appearances before the courts and have shown no real signs of rehabilitation, then their youth is unlikely to assume the same significance that it might otherwise. See R v Nichols (1991) 57 A Crim R 391. The evidence before the sentencing judge provided very little basis for optimism so far as the applicant's prospects for rehabilitation were concerned. Community based rehabilitation programs which had been extended to him in the past had patently failed. 17 The applicant has not, in my view, established that the sentencing judge either failed to apply or misapplied the relevant principles. The conclusion at which his Honour arrived was, in light of the applicant's significant on-going criminality and his repeated failures to respond to opportunities afforded to him, one that was properly open to him. 18 Finally it is submitted that the sentencing judge erred in not making a finding of "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The applicant pointed to his youth, his need for rehabilitation, the fact that this would be his first full-time sentence of any length, the fact that he was on strict protection and what was described as his "rampant drug problem" as matters which, in combination, were sufficient to justify such a finding. The sentencing judge, somewhat understandably, said that he had "given earnest consideration to the question of special circumstances" before deciding not to make such a finding. It may be readily accepted that the matters identified by the applicant were capable of constituting "special circumstances." By the same token the sentencing judge was not obliged to so conclude. The primary question to be determined is the length of the minimum period of actual incarceration. See R v Simpson (2001) 53 NSWLR 704. 19 I am not persuaded that it has been demonstrated that the sentencing judge erred, upon the material that was before his Honour, in arriving at the conclusion which he reached. 20 The court has today been provided with an affidavit, sworn by the Crown's instructing solicitor, which sets out some details about the applicant's custodial circumstances. The applicant is now being held at Goulburn Correctional Centre. He went into protective custody on 7 June 2001 (which is well before he was sentenced in the District Court) at his own request because of fears he entertained about attacks upon him from other inmates. It would appear that those concerns arose because the applicant had given evidence against certain inmates in unrelated matters. We were informed that he has thus far spent 286 days in protective custody and will remain upon protection at least until December 2002 at which time his position will be reassessed. The court is well aware of the onerous restrictions which are placed upon an inmate who is on protection. Moreover there is evidence before the court as to the particularly burdensome restrictions with which the applicant is confronted. Apart from anything else it is scarcely an environment which is conducive to his overall rehabilitation. Nevertheless he has been able to participate in some educational programs but must be segregated from the general prison population whilst doing so. 21 There was material before the sentencing judge which suggested that the applicant had been on "strict protection". The sentencing judge would have been entitled to take the view, given the state of the evidence at that time, that his time on "strict protection" had been short lived and that he had been placed there because of his own disruptive behaviour. The evidence which the Court has now received, portrays an entirely different situation. What it does is to reveal the true significance of facts which were in existence at the time of sentence. See R v Smith (1987) 44 SASR 587; R v Bailey (1988) 35 A Crim R 458. It was upon that basis that the court received the material. 22 Having considered that material and given it due weight, it is my view that it is appropriate for the court to intervene and re-sentence the applicant. Indeed the Crown invites us to do so. 23 I would make a finding of "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 by reason of his age, his need for rehabilitation and in particular the fact that he is serving his sentence in protective custody. 24 Accordingly the orders which I propose are as follows: 1 Leave to appeal granted. 2 Appeal allowed (in part). 3 Quash the sentence imposed in the District Court in respect of the offence of steal from the person. In lieu thereof the applicant is sentenced to imprisonment for three and a half years to commence on 30 April 2001 and to expire on 29 October 2004 with a non-parole period of two years three months to commence on 30 April 2001 and to expire on 29 July 2003 at which time he will be eligible for consideration for release to parole. 4 Sentence in relation to the offence of assault occasioning actual bodily harm is confirmed. SMART AJ: I agree. BUDDIN J: The orders will be as I have proposed. ********** 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.