New South Wales Court of Criminal Appeal CITATION : Regina v Alameddine [2004] NSWCCA 286 HEARING DATE(S) : 3/8/04 JUDGMENT DATE : 1 September 2004 JUDGMENT OF : Beazley JA at 1; Wood CJ at CL at 2; Hulme J at 102 DECISION : Leave to appeal refused. CATCHWORDS : Criminal law - armed robbery in company - theft of handguns - whether sentence manifestly excessive - whether justifiable grievance in relation to sentence of co-offender. LEGISLATION CITED : Crimes Act 1900 - s 97(2) Crimes (Sentencing Procedure) Act 1999 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 98 A Crim R 134 R v AEM [2002] NSWCCA 58 R v Daridis NSWCCA 18 December 1986 R v Donovan [2003] NSWCCA 324 R v Bertoncello NSWCCA 5 November 1997 R v Henry [1999] NSWCCA 107 R v Henry (1999) 46 NSWLR 346 R v Hosche [2001] NSWCCA 317 R v Lawson [2000] NSWCCA 214 CASES CITED : R v McCarroll [1999] NSWCCA 237 R v Moratti NSWCCA 31 July 1995 R v Nevermann (1989) 43 A Crim R 347 R v Palu [2002] NSWCCA 381 R v Qutami [2001] NSWCCA 353 R v Readman (1990) 47 A Crim R 181 R v Rushby [1977] 1 NSWLR 594 R v Tran [1999] NSWCCA 109 R v Simpson (2001) 126 A Crim R 525 R v Watego [2001] NSWCCA 236 R v Welsh (1996) 90 A Crim 364 Weininger v The Queen (2003) 140 A Crim R 184 PARTIES : Regina Mohamed Alameddine FILE NUMBER(S) : CCA 60151/04 COUNSEL : B Knox SC (Crown) R Burgess (App) SOLICITORS : S Kavanagh S E O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0450 FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER : - 1 - IN THE COURT OF CRIMINAL APPEAL 60151/04 BEAZLEY JA WOOD CJ at CL HULME J Wednesday 1 September 2004 Regina v Mohamed Alameddine Judgment 1 BEAZLEY JA: I agree with Wood CJ at CL. 2 WOOD CJ at CL: The Applicant seeks leave to appeal against the severity of a sentence imposed by his Honour Judge Christie, in the District Court, on 24 July 2003. The sentence of imprisonment for 7 years and 6 months, with a non-parole period of 5 years and 6 months, was imposed following the Applicant's plea of guilty to one count of robbery while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900, an offence for which the maximum penalty is imprisonment for 25 years. Fifteen matters were taken into account on a Form 1, of which ten offences were either directly or indirectly associated with the principal offence. Facts 3 The robbery occurred on 19 June 2002 at the South Western Sydney Firearms Range ("the Firearms Range") at Condell Park, and involved a significant number of firearms, together with $1680 cash. Police were forewarned of the planned robbery by an informer, as a result of which physical and electronic surveillance was established in relation to Simon Raha, who appears to have been the ringleader of the group. That group included Raha, the Applicant, Ghassan Khodr, and Nassiem Amood, each of whom was charged. It would appear that a number of other young men including Ahmed Hawat and Wesam Hamze were identifiable on the various intercepted mobile phone calls, which were sometimes conducted in code, and which passed between members of the group in relation to the planned offence. These other men have apparently not yet been charged. 4 At 5:31 PM, on 19 June 2002 a conversation was monitored between Raha and Amood, in which Amood asked Raha to bring a map to the house (67 Gordon Street Granville), which it appears was used by the group as a safe house. Investigators later found, at those premises, a map of the Firing Range, which had been drawn on a shoebox, in the handwriting of Raha. His fingerprints were also found on the box. 5 At 6:31 PM a conversation was monitored between Raha and Hawat, in the course of which the latter was instructed to bring his "silver bream", which police believe was code for a firearm. 6 At 6:50 PM Raha was intercepted instructing Khodr to bring some bullets. At 6:58 PM Raha was heard to instruct Hawat to bring two "combs" which police believe was code for magazines for a self loading pistol. At 7:08 PM Raha repeated his request for Khodr to bring some bullets. Seven minutes later, at 7:15 PM Raha instructed Khodr to bring the "yellow bag" and "the gloves". 7 At 8:42 PM an SMS message was intercepted passing from the mobile phone of the Applicant to Raha: "we are parked in a side street, call us when UR going to cum out". 8 At 8:48 PM there was a further intercepted conversation between the Applicant and Raha as follows: Applicant: "Sam, Sam what's going on?" Raha: "Now go there" 9 Immediately afterwards there was a conversation between them as follows: Raha: "Yeah Alameddine, listen to me, alright see where the wall, you sit behind the wall, when you get the safe open you all run in, but listen to me, listen to me, listen to me" Applicant: "What" Raha: "You have to tell Yehya (Ammood) and the boys to go inside the safe, there's another safe, it's full, get everything, go inside, bye" 10 It is clear that "the wall" referred to was the one adjacent to the door through which the offenders made their entry into the Firing Range. Cigarette butts collected at the foot of that wall by Crime Scene Police were examined, and produced DNA consistent with that of Amood. 11 In a further exchange with the Applicant, Raha yelled: "Listen, everything is ready to go, go park the car, there is a cunt leaving, when he leaves you have to do it now" 12 At 8:49 PM a conversation was monitored between the Applicant and Raha as follows: Applicant: "Sam listen there are too many cars here, what are we going to do?" Raha: "Nah, don't worry, everything is ready to go you donkey…listen to me bro…When the door opens, you go in…stand behind the walls…all of you, no one can see you, no one can see you" Applicant: "Wait, there's a cunt leaving" Raha: "When he leaves, go behind the wall, and when someone comes out you have to do it " 13 At 8:53 PM a further conversation was monitored between the Applicant and Raha: Applicant: "Sam we are gonna wait for two more people to go, then we are gonna go in" Raha: "I don't care, get ready, now is the time, listen to me" Applicant: " We are waiting where we were before " Raha: "Now go and sit behind the wall all of you " Applicant: "Bro, we can't, we are sitting in the car " Raha: "Go now, now is the time, my god" Applicant: " Now " Raha: "GO NOW – GO TO THE WALL" 14 A second male then spoke into the Applicant's mobile phone and expressed concern about the number of cars there. Raha told him not to worry, adding that there were only 5 persons inside. 15 At 8:53 PM another conversation was monitored between Raha and the Applicant: Raha: "put your phone on silent dickhead" Applicant: "OK" Raha: "And call when your finished dickhead". 16 At about 9.00 PM two users of the Firing Range, Bassen Alas and Ahmed Masri tried to leave the premises, after pressing the security button which releases the lock to the door. 17 As they did so two males, wearing black balaclavas or hoods and carrying pistols, forced their way in, followed it would appear by two other armed men, who were similarly hooded. 18 Alas was seized from behind, and a pistol was held to his head. He was instructed not to move, kicked in the stomach, and forced to the floor. The .40 calibre pistol, which he had been using on the Range, was taken from him. At that point the second offender discharged his firearm in the direction of the shop inside the premises. 19 The second offender pushed a gun to the back of Masri's head, forcing him to the floor, and causing him to injure his knee. Masri saw that this offender was holding a black coloured pistol. He was told to lie face down, and asked if he had a gun. He repeated that he did not have one. The offender trod on his neck. 20 Three more shots were then fired into the glass display case where a number of firearms were held. One of the offenders gave an instruction to take the weapons. Another offender gave an instruction to take the security tape. 21 In the meantime other persons inside the premises took cover. The proprietor managed to secure the inner area where more firearms where held. He also activated the alarm. A third offender however, tried to gain entry to this area using a bright yellow jemmy bar. A fourth offender was observed to have been armed with a pistol, which was identified as being similar to a Jennings 9 mm handgun. When the proprietor came out to the shop area, after securing the inner perimeter, he was threatened by one of the offenders and instructed to lie down, otherwise, he was advised, he would be shot. 22 The till from the cash register was found on the floor along with an empty suitcase, which one of the offenders had dropped. The security video recorder was removed, but was later found in the stolen Nissan Pulsar SSS that had been used in the commission of the offence. That vehicle was located several hundred metres from the group's safe house in South Granville. Also found in this vehicle was a key that had been taken from the cash register till. 23 At 9:12 PM, after the offenders had left the premises, a call was intercepted between the Applicant and Raha: Applicant: "Detectives…Detectives..Go..Go..Go" Raha: "Listen, I'll speak to ya later" 24 At this time Bankstown 140, an unmarked police vehicle, which had responded to the incident, was in the vicinity of Harley Crescent with it's emergency lights and siren activated. 25 At 9:24 PM a further call was monitored between the Applicant and Raha. Raha: "Where are you man?" Applicant: "Listen we are on Woodville Road, Go to Orhardleigh Street" Applicant: "Hammer it , Hammer, Step on it" (an instruction to the driver of the vehicle carrying the Applicant) 26 At about 11:41 PM on 19 June 2002, telephone conversations were monitored between Raha, Amood and Khodr. During those calls they discussed the sale of the guns which had been taken in the robbery. Amood said that he could get five thousand (dollars) for each of the guns. He also said that he had been the last one to leave the Range and that he had gone back to retrieve the security VCR. 27 At 11:49 PM Raha called the mobile of Amood. The call was taken by the Applicant. Raha asked him whether they could sell the firearms for $4000 each. The Applicant replied that he had "a couple of guys" that would purchase any guns that Raha could not sell, for $3,500 each. Raha said that he would bring some guns to him the following day and that he had "better sell them for [that] price." 28 Over the following days a number of other conversations were monitored between Raha, the Applicant and others in which there were discussions about the sale of the guns. 29 On 20 June the Crime Manager at Bankstown Area Local Command issued a media release, in relation to the robbery, which was broadcast on commercial radio and television, and which referred to the theft of 19 handguns having been reported by the owner of the Firing Range. 30 At about 7:30 that evening, the Applicant phoned Raha. During that conversation he said: "Get all the fucking boys ready, fucking put them together, the ones we went with last night…" Later he said: "There was 19 of them bro, it was on the news…where did the rest go?…" 31 At around 12:30 AM on 28 June 2002 Hawat and Hamze were arrested at 67 Gordon Street, South Granville, following their involvement in an armed robbery, at a Granville service station, some hours earlier. 32 Investigators executed a search warrant at those premises. Amongst the items located were two .22 calibre pistols which had been stolen from the Firearms Range during the armed robbery. Investigators also located the shoebox upon which a map of the Range had been drawn, documents which had been stolen during the robbery, and a yellow coloured jemmy bar which is believed to have been that used during the robbery. 33 On 1 July 2002 police arrested Raha, Khodr, the Applicant, Amood and one Aziz. At the Applicant's home, police found a Beretta .32 calibre pistol which had been stolen from the Firearms Range, several firearms including a Glock brand self loading pistol of the kind that had been used at the scene, and a bullet proof vest. 34 There was evidence to show that Raha and Khodr had been members of the Firearm Range and had detailed knowledge of its procedures and interior. Khodr was in fact inside the Range at the time of the robbery, and he initially claimed to have been a victim, rather than one of the offenders involved in the joint enterprise. On the contrary, it appears that his role had been to report on the situation within the premises, and in particular as to the number of persons there . 35 Apart from the Applicant, the only other offender who has been dealt with to finality, at this time, is Amood who, similarly to the Applicant, was regarded as having pleaded at the earliest opportunity to the offence of robbery while armed with a dangerous weapon. He also pleaded guilty to two charges of selling firearms contrary to s 51(1)(a) of the Firearms Act. Six matters were taken into account on a Form 1, five of which were related to the principal offence. Those five offences comprised four offences of robbery while armed with a dangerous weapon, and one offence of aggravated assault with intent to rob. The unrelated offence was one of driving while disqualified on 24 June 2002. 36 He was sentenced, in relation to the principal offence to imprisonment for 8 years with a non-parole period of 5 years and 6 months. There was a partial accumulation in relation to the firearm offences (for which he was sentenced to fixed terms of 2 years and 1 year respectively) resulting in an effective sentence of 8 years with a non-parole period that was extended to 6 years. The Applicant's Subjective Circumstances 37 The Applicant had a favourable subjective case. He was 18 years old at the time of the offence, and he had available a wide range of testimonials from friends, relatives, members of his community, and former employers to suggest that the offence was out of character, and that he had expressed genuine shame and remorse for his involvement in it. 38 He had been educated to School Certificate level, and had thereafter worked as a stonemason. Unfortunately, the several businesses for which he worked had failed, and he had been unable to secure suitable employment during the period immediately preceding the offence. There had also been problems within the family as a result of his mother's serious illness, which had required his father to cease his employment in order to care for her. 39 The Applicant, regrettably, responded to these problems by taking up gambling and by associating with the group who became involved in the offence. In so doing he seriously let down himself and the rest of his family, who had been industrious and law abiding. To some extent his choice to do so was explained by evidence that suggested that he was of below average intelligence, and was somewhat gullible and easily led. His gambling had left him in debt, and the offer he received of $5000 to join in the enterprise obviously found favour with him. 40 He did not have any history of substance abuse and his prior record, subject to one matter, was of little consequence, comprising convictions for driving while suspended, larceny and possess implements. For the first and third of these offences he had been fined. What was of concern was the circumstance that, for the larceny offence he had been placed on a s 9 bond for 2 years, just 3 months before the commission of the present offence. 41 He had no prior experience of custody. His Honour accepted that the possibilities of him reoffending were "somewhat remote", and that he had "very compelling subjective circumstances". Ground 1 – His Honour erred in failing to properly determine the role of the Applicant in the offence 42 His Honour found that the instructions and orders had emanated from another offender who he suspected had been the "real brains" behind the enterprise. Almost certainly it was Raha who his Honour had in mind. While he accepted that the Applicant had not been "the basic organiser or generalissimo", he observed that he appeared to have been "a long way short of [being] simply just a foot soldier". In this regard, he found that the Applicant appeared to have had "some significant authority in relation to the enterprise, and …in relation to getting rid of the proceeds of [the] robbery". 43 His Honour noted that while there was sufficient material in the Crown brief to indicate that four persons entered the premises, the Applicant had informed the clinical psychologist, who had assessed him, that while he had intended to enter the premises, he had held the door open for the others, and had then retreated to the car when he heard the gunshots. 44 His Honour did not specifically find that the Applicant had entered the premises, although he referred to certain aspects of the intercepted conversations that tended to support such a conclusion, including the Applicant's apparent concern that more guns had been reported as having been taken, than had been accounted for by the others. 45 The Applicant did not give evidence, and the only basis for the claim that he had waited at the door and then retreated, came from the history given to the psychologist and an assertion that was made from the bar table. This was not a satisfactory basis for the determination of the issue, particularly since it was asserted, in the agreed statement of facts, that the Applicant was one of the armed offenders who had made their way into the Firing Range. 46 Certainly the statement from the bar table did not stand as evidence. It does not appear that consideration was given, at first instance, as to whether the history which the Applicant had given to the psychologist was to be received as evidence of the facts asserted, or as part of the basis upon which the expert's opinion was formulated. The Evidence Act did not apply, and the line of authority in R v Welsh (1996) 90 A Crim R 364 which was considered in R v Lawson [2000] NSWCCA 214 did not assist. 47 The practice of placing experts' reports into evidence, where they contain a history of assertions made by the offender, as going to matters of fact of importance for the sentencing process, but which are unsupported by evidence from the offender or elsewhere, was strongly criticised by Allen J in R v Moratti NSWCCA 31 July 1995 where his Honour said: "This practice is to be deplored. Sentencing judges would be well advised, where such a report is tendered, to ascertain whether it is intended to place reliance upon the history as evidence of the truth of what there is asserted and to warn counsel for the prisoner that, if that is intended and the Crown does not accept the accuracy of the assertions contained in the history, the history would not be treated by him as evidence of those facts. Such a warning would leave the legal representatives for the prisoner under no misapprehension that the history will not be treated as evidence of the facts unless proven by other evidence - whether by the prisoner giving evidence or otherwise." 48 Similarly in R v Palu [2002] NSWCCA 381 at paras 39 to 42, and in R v Qutami [2001] NSWCCA 353 at paras 58-59 and 79, attention was drawn to the proper approach to be taken in relation to self serving statements appearing in experts reports, and to contentious areas of fact arising from pre-sentence reports. 49 There was a paucity of evidence from which the question whether the Applicant went into the premises, and personally threatened or struck anyone, could have been determined. The offenders were all wearing balaclavas or hoods and could not be identified. Moreover, there was not complete agreement between the various witnesses as to how many offenders were seen or heard. No doubt that was due to the haste in which the offence was committed, the degree of violence involved, and the different locations in which the eyewitnesses found themselves. 50 It is not at all clear whether his Honour came to any firm conclusion in relation to this question, particularly in view of his observation that he was: "not entirely confident that whether [the Applicant] entered the building or not would make any particularly significant difference or a difference of any description really in connection with the likely offence" 51 It was however submitted on the appeal that if the Applicant had not entered the premises and personally participated in the violence that was there displayed, then that should have been reflected in a finding that he was not as culpable objectively as the other offenders, leaving aside presumably Raha. Support for this submission was said to be found in the decisions of this Court in R v Nevermann (1989) 43 A Crim R 347 at 349 – 350, R v McCarroll [1999] NSWCCA 237 at para 16, and R v Donovan [2003] NSWCCA 324. 52 While there is a difference between the circumstances which are sufficient to render a person criminally liable for conduct that comes within joint enterprise principles, and that which establish the extent of such offender's culpability, inevitably this becomes a question of degree. 53 I am not persuaded that the submission advanced in this case has been made good. The first two decisions cited go little further than reinforcing the need for sentencing judges to make sufficient findings in relation to the objective criminality of the offender. Donovan involved a very different factual situation in which the offender's role was clearly subservient to that of the other offenders. 54 Of more relevance is the observation of Carruthers AJ (with whom Beazley JA and I agreed) in R v Hosche [2001] NSWCCA 317 at 18: "18 Insofar as the factual matters are concerned, it is, in my view, sufficient to notice the fact that the criminal law has always looked with great disfavour upon robbery in company. If two persons agree to perform a joint criminal enterprise, such as in the instant case of robbery of an unarmed, innocent bystander, then it is inappropriate to attempt to assess with any degree of precision the role which each played in the consummation of the criminal enterprise. " 55 So far as counsel for the Applicant advanced a submission to this Court that he should have been sentenced on the basis that he did not enter the premises, and in fact lost his nerve and withdrew once he heard gunshots, I would reject that submission. 56 In the absence of sufficient evidence the question remained one that could not be resolved in a way that went either to increase, or to decrease the sentence that was to be imposed. The case was one for which the observations of the majority of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) in Weininger v The Queen (2003) 140 A Crim R 184 were appropriate: "…Framing the question in terms of the onus and standard of proof may suggest that all disputed issues of fact related to sentencing must be resolved for or against the offender. That is not so. As was recognised in Olbrich , some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed. There may be issues which the material available to the sentencing judge will not permit the judge to resolve in that way. … As the majority pointed out in Olbrich at [278] prosecuting authorities and a sentencing judge will often have only the most limited and imperfect information about how it was that the accused came to commit the offence for which he or she is to be sentenced. Although s 16A(2)(a) requires a sentencing judge to take account of the nature and circumstances of the offence, that requirement is not absolute. They are to be taken into account only to the extent that they are relevant and known to the court. The sentencing judge may not be able to make findings about all matters that may go to describe those circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt at [280]. Accordingly, in the particular facts of Olbrich , where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier." 57 What was decisive in this case, for sentencing purposes, was the nature of the enterprise to which the Applicant lent himself. 58 On any view, this was a well planned and organised criminal activity in which threats, and the use of weapons, to overcome any resistance that was offered by the persons inside the premises, who were also likely to have weapons in their possession, albeit for lawful purposes, was inherent. 59 The Applicant was centrally involved in it. He accompanied his co-offenders to the scene, in circumstances where it was known that they were armed with loaded weapons and a jemmy bar, which they were prepared to use to overcome resistance. He was the offender who was receiving and passing on instructions at the scene, and he assisted the co-offenders to burst into the room in circumstances where it was known, from a communication from Raha, that there were at least five persons inside. It was he who gave instructions to the driver of the get away vehicle, and it was he who reported to Raha about the presence of police. He assumed responsibility for the subsequent attempts to dispose of the weapons that had been stolen. 60 His role was hardly that of a bit player, on the fringes of the enterprise, as any reasonable view of the intercepted conversations shows. Rather he was the coordinator of what occurred at the scene and his culpability was equally as great as the others who were there. 61 The present case is accordingly not one where his objective criminality could be reduced by the circumstance, if it be the case, that he did not personally step past the front door, or directly threaten any person, or discharge a weapon. This ground is without substance. Ground 2 – The Sentence is Manifestly Excessive 62 His Honour expressly had regard to the judgment in R v Henry (1999) 346 NSWLR 367. The present case shared three characteristics with Henry, so far as the Applicant was a young offender with little by way of a criminal record; weapons were involved in the offence that were capable of killing or inflicting serious injury; and there was a plea of guilty, the significance of which was limited by a strong Crown case. Otherwise it was significantly more serious than the typical case considered in Henry, in so far as there was considerable planning and violence involved, and property and cash of significant value were taken. 63 The age and record of the Applicant and the fact of the plea were mitigating circumstances within s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, as were the Applicant's prior good character and remorse. Additionally there was the assessment that he was unlikely to re-offend and that he had good prospects of rehabilitation. 64 On the other hand there were a number of aggravating circumstances within the meaning of s 21A(2), leaving aside those matters that were elements of the crime, in so far as the offence was committed in company, involved the actual and threatened use of violence, was committed without regard for public safety, involved multiple victims who suffered bodily injury and/or emotional harm, occurred at a time when the Applicant was subject to a bond, and was part of a planned and organised criminal activity. 65 Additionally there was the circumstance that the object of the crime was to secure, and then to sell on the illegal market, for significant profit, handguns that would have inevitably found their way to other criminals. The grave concern which the community has for the proliferation of weapons of this kind cannot be ignored in the case of an armed robbery that has that object in mind. 66 This was a case, accordingly, for which the guideline judgment in Henry provided only limited assistance. His Honour's description of it as an offence that was not far removed from the worst category was well justified. Moreover, it was one where despite the youth and the previous good character of the Applicant, the favourable subjective considerations had to give way to the grave objective culpability that was involved, for the reasons outlined in R v AEM [2002] NSWCCA 58 at para 97 and R v Tran [1999] NSWCCA 109 at para 10, as well as those noted in R v Rushby [1977] 1 NSWLR 594. 67 There was the additional consideration, which needed to be taken into account, in accordance with the guideline judgment in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518, of the 15 matters on the Form 1. Their presence required the sentence for the armed robbery offence to be increased beyond that which would have been appropriate, had it stood alone, so far as weight had to be given to the elements of personal deterrence and the community's entitlement to exact retribution for that offence, when there were other offences for which no punishment had in fact been imposed. 68 Of those fifteen offences, six (numbers 1, 2, 7, 8, 9, 10) were directly related to the subject offence, including offences of armed robbery and assault respectively of Messrs Alas and Masri, the receiving of stolen weapons and failing to keep firearms safely. Four (items 3, 5, 13 and 15) indirectly related to the enterprise, being offences involving the possession of unauthorised firearms, the sale of unauthorised firearms and the possession of ammunition without a licence or permit. 69 The remaining five offences were separate offences (items 4, 6, 11, 12 and 14), and included the detention for advantage in company of Danny Quays, the possession of a ballistics vest, conspiracy to steal a Ford Laser, goods in custody (a Nokia phone) and concealing a serious indictable offence (a separate armed robbery). These were not insignificant matters and they clearly justified a significant increase in the sentence. 70 Finally, there was the circumstance that the Applicant, was subject to a bond for an offence of larceny of a motor vehicle, a circumstance that also had to be taken into account, for the well known reasons expressed in R v Daridis NSWCCA 18 December 1986 and R v Readman (1990) 47 A Crim R 181. 71 The evidence that the Applicant was of below average intelligence, was somewhat gullible and easily led, that he was acting under firm, and sometimes angry or frustrated direction from Raha, and had favourable subjective circumstances, remained relevant. However, they were not persuasive considerations operating in mitigation of sentence because of the aggravating circumstances which I have mentioned. The starting point of 10 to 12 years selected by his Honour, and the resultant head sentence, were not manifestly excessive. Ground 3: - (a) His Honour made inadequate allowances for, and failed to give effect to, his finding of special circumstances; (b) The non-parole period is manifestly excessive. 72 The case was one to which the recently repealed version of s 44 of the Crimes (Sentencing Procedure) Act applied, and required the court firstly to set the term of imprisonment, and secondly to set the non-parole period which could not be less than 75% of the term of the sentence, unless special circumstances were established. 73 His Honour said, in the light of the Applicant's age, the fact that he had never before committed a violent crime, and the fact that he had a supportive family which enhanced his prospects of rehabilitation, that: "I have absolutely no hesitation in finding special circumstances in favour of the prisoner that would enable me to ameliorate any non-parole period, and that is what I propose to do" (R/S 10) 74 It was submitted that meaningful effect was not given to this finding, since the non-parole period of 5 years and 6 months was only 6 weeks less than three quarters of the term of the sentence of 7 years and 6 months, (that is, 73.3% of the head sentence). 75 Reference was made to the decision of this Court in R v Watego [2001] NSWCCA 236 at paras 7 to 10, where it was accepted that the sentencing judge, in that case, had overlooked a similarly stated intention to find special circumstances, when extending the parole period by only 3 weeks. 76 Reference was also made to the Judicial Commission statistics which indicated that, for all offenders charged with an offence under s 97(2) of the Crimes Act, (174 cases) a non-parole period of 5 years and 6 months (reflected in the statistics as 6 years) was in the top 10% of sentences. 77 The approach, which his Honour took in this case, needs to be considered in the context of the fact that he had reduced what he had considered to be an appropriate starting point for the term of the sentence (10 to 12 years), to 7 years and 6 months. The observation relied upon needs to be understood in its full context as follows: "I have absolutely no hesitation in finding special circumstances in favour of the prisoner that would enable me to ameliorate any non-parole period, and that is what I propose to do. And I will give him the full discount in connection with his plea of guilty, what I see as the full discount, making some allowances for the strength of the Crown case. It seems to me that having regard to the seriousness of the case the best I can do is reduce what I would otherwise see as the head sentence by something between twenty and twenty five per cent. I think that is possibly erring in favour of the prisoner but I do not know that having done that, there is much else I can do for him other than to ameliorate the parole and non-parole period." 78 Although this was somewhat infelicitously expressed, it appears that his Honour had taken into account both the plea of guilty and the matters that were capable of qualifying as special circumstances when reducing the starting point of 10 to 12 years to 7 ½ years. 79 This tends to be confirmed by his Honour's remark that this was "possibly erring in favour of the prisoner". It would seem that his Honour took the view that any further reduction of the term of the sentence and of the non-parole period would have resulted in a sentence that was disproportionate to the objective seriousness of the case. 80 That was an approach which was properly open to his Honour: R v Henry [1999] NSWCCA 107 where Simpson J said, at para 76: "76. A sentencing judge, having found special circumstances, has a good deal of room to move in the structure of the sentence to be imposed. However, the discretion conferred by s 5(2) should always be exercised with one eye on the relevant minimum term, which must be such as properly to reflect the objective gravity of the crime for which it is imposed, taking into account the subjective features: see R v. Power (1974) 131 CLR 623; R v. Morrissey , unreported, NSWCCA, 15 July 1994; R v. McDonald , unreported, NSWCCA 12 October 1998. A sentencing judge who varies the statutory proportion in favour of a lengthier additional term needs to take care to ensure that the minimum term is no lower than that which is commensurate with the objective gravity of the crime." 81 The finding of special circumstances, especially where they have already been taken into account in reducing the term of the sentence, does not mandate a variation in the statutory ratio: R v Bertoncello NSWCCA 5 November 1997 and see also R v Simpson (2001) 126 A Crim R 525 at paras 59, 63, 65, 68, and 73 per Spigelman CJ. 82 I am not persuaded that any greater variation should have been made in relation to the non-parole period. To have done so would have been to produce a sentence that would have been inappropriately lenient. 83 It is also not to be overlooked, in this context, that an extended period of potential release on parole is not necessarily advantageous to an offender, having regard to the possibility of revocation for non compliance with parole conditions, resulting in a need for the balance of parole to be served. Ground 4 – The Applicant has a justifiable sense of grievance when considering the sentence imposed upon his co-offender Nassiem Amood. 84 Amood was sentenced by his Honour Judge Hosking, on 31 December 2003 for the armed robbery and for two offences of selling unauthorised firearms. Six offences were taken into account on a Form 1. They comprised four offences of armed robbery and one of aggravated assault with intent to rob, all of which were directly related to the events at Condell Park. The only unrelated matter was one count of driving while disqualified. A 25% discount for the plea of guilty was given. 85 Judge Hosking noted that this offender's criminality was at the same general level as the Applicant. He was expressly sentenced on the basis that he had been one of the offenders who had entered the premises, and had been the last man to leave. 86 His subjective circumstances were found to be worse than those of the Applicant in that he had been aged 25 years at the time of the offence, and had a significant criminal record. 87 His Honour noted that the present Applicant had 15 matters on a Form 1, while Amood had only 6 matters. He concluded that Amood's less favourable circumstances should be reflected in a higher overall sentence but not in a higher non-parole period. This was justified upon the basis that he did not want to jeopardise what he regarded "as some real prospects of rehabilitation" that Amood had. 88 The difference between the two offenders was accordingly addressed by imposing a term of imprisonment for the armed robbery offence that was 6 months longer than that applicable to the Applicant, meaning that his parole period was potentially longer. The partial accumulation of sentence for the firearm offences resulted in Amood's overall non-parole period being six months longer than that imposed on the Applicant. 89 Counsel for the Applicant submitted that the was entitled to entertain a justifiable sense of grievance in relation to the Amood sentence, given the different roles which the two offenders had played, the less favourable circumstances of Amood, and the fact that the latter was charged with three offences. 90 The relevant principle is that set forth in the well known decisions of Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 98 A Crim R 134 at 301 and it does not require repetition, for the purpose of determining this application, other than to note that, for the Court to intervene, it must be satisfied that the difference in sentences between co-offenders, after making sufficient allowance for any differences in their objective and subjective circumstances, would leave the Applicant with a justifiable sense of grievance. 91 I am not persuaded that this ground has been made good. 92 For the reasons already identified, I am unable to accept that there was any material difference in the objective culpability of the two offenders, such as to justify any lesser sentence having been imposed upon the Applicant. 93 While it is true that Amood stood for sentence in relation to three charges, two of those arose from his sale of weapons that had been stolen from the Firing Range. Similar offences in relation to the Applicant were included in his Form 1. Five of Amood's Form 1 offences were directly associated with the events at the Firing Range, as were at least six of the fifteen offences taken into account on the Applicant's Form 1. 94 The only Form 1 offence of Amood that was unrelated to the events at Condell Park, or their aftermath, was a relatively minor offence of driving while disqualified. In the Applicant's case there were several unrelated offences, including the possession of a ballistics vest, conspiracy to steal a motor vehicle, goods in custody, concealing a serious indictable offence, and, most seriously of all, detention for advantage. 95 The difference between the number and nature of the offences, which were to be taken into account, balanced the difference in the subjective circumstances of the two offenders, such that the Applicant is not entitled to entertain a justifiable sense of grievance. 96 This ground has not been made good. 97 It follows, in my view, that error has not been shown. Submissions were received as to the orders which the Court should make, in the event of it deciding that the appeal lacked merit. This was related to the circumstance that the other persons charged with the armed robbery are yet to be tried and sentenced, leaving open the possibility that a fresh question of parity might arise in the event of one or more of them receiving a sentence that is more favourable than that passed upon the Applicant. 98 To allow for the possibility of a further appeal, it was submitted that the preferable course was to refuse leave to appeal, rather than to grant leave and to dismiss the present appeal. In support of this proposition reference was made to the observations of Dawson and Gaudron JJ in Postiglione v The Queen at 305: "Ordinarily, it is of no consequence whether an order is made dismissing an application for leave to appeal or whether leave is granted and the appeal dismissed. However, putting aside applications which are frivolous or vexatious, there is no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed. An application based on matters agitated on a previous application is properly to be regarded as frivolous or vexatious. But that is not the case where an application is based on a sentencing disparity which has subsequently emerged. That is always a possibility in a case of this kind. That being so, the interests of justice require that, if an application for leave against sentence is to be heard and determined against an Applicant before a co-accused is brought to trial, leave be refused, rather than that the appeal be dismissed." 99 Kirby J provided some support for this approach, in so far as he observed, at 333: "In the nature of complaints of disparity in sentencing (and as the facts of this case demonstrate) it will quite often be the case that the disparity which is said to give rise to the justifiable sense of grievance is not finally known until a considerable time after the complaining prisoner was sentenced. Where the final sentencing of a co-offender, or of another relevant offender, remain outstanding it may well be sensible for a Court of Criminal Appeal to adopt the expedient proposed by Dawson and Gaudron JJ in their reasons." 100 I am of the view that there is always merit in disposing of appeals in a way that achieves finality, and that there is something of a chicken and egg argument involved in leaving the final determination of parity questions until all the relevant proceedings are concluded. I have however reached the conclusion, in this case, that the proper order is to refuse leave to appeal, upon the understanding, which was accepted by counsel for the Applicant, that if further leave is sought, then it will be limited to any question of parity that may arise in relation to the sentences which are passed upon any other persons who are convicted of or plead guilty to the subject offence. 101 Accordingly I propose that the Court make the following order; 1. Leave to appeal refused. 102 HULME J: Subject to the remarks which follow, I agree with the orders proposed by Wood CJ at CL and with his Honour's reasons. 103 Judge Christie's remark to the effect that the particular crime was not far removed from a worst case seems to have been directed to the offence itself rather than the Applicant's offending. If that be the correct interpretation of what his Honour said, I would not wish to be taken as agreeing with it. Although I do not need to decide the matter for the purposes of this appeal, when one adds to the conduct of the offenders in the course of the robbery itself, the fact that their object was the obtaining of a quantity – perhaps arsenal would be a better word - of firearms for sale to the criminal members of the community, there is much to be said for the view that the offence itself did fall into a worst category. 104 Secondly, although I am content to preserve for the Appellant the opportunity of again approaching this Court by refusing leave to appeal rather than dismissing the appeal itself, I would not wish that decision to be taken as any indication that, however light a sentence imposed on a co-offender may be, it would be appropriate on grounds of parity to reduce the sentence imposed on the Appellant. The crime was grave, his participation substantial, and there is much to be said for the view that any reduction in his sentence would not create a justifiable sense of grievance in him arising from a lack of parity with a sentence imposed on a co-offender but an injustice to the community appreciably greater than any feeling of grievance he might have through – see Ismunandar and Siregar [2002] NSWCCA 477; R v Doan [2002] NSWLR 115; Reardon (1996) 89 A Crim R 180; R v Steele (unreported, CCA, 17 April 1997). 105 In this connection Judge Christie seems to have made a number of findings which are at least arguably unduly favourable to the Appellant. For example, his Honour observed that he did not see the fact the Appellant was on a recognisance "as being a particularly serious aspect of the sentencing process on this particular occasion," also referring to it as a "marginal fact". Given that the recognisance had been imposed but 3 months prior to the subject offence, his Honour's remarks do not sit happily with the views which this Court has expressed on many occasions as to the aggravating nature of the commission of offences on conditional liberty. 106 His Honour also observed that "there are some circumstances in this particular case that take it a little, perhaps more than a little, above and beyond the guidelines enunciated by the Supreme Court in R v Henry". As Wood CJ at CL has pointed out, common to the subject offence and the characteristics of the offender referred to in R v Henry were the Applicant's youth, little by way of criminal record, weapons capable of killing or inflicting serious injury and a plea of guilty the significance of which was limited by a strong Crown case. However the circumstances of the offence were, in other respects, so far different from the offence contemplated in R v Henry that the assistance provided by that decision is very limited. Indeed, by comparison with the suggested 4 to 5 years head sentence indicated in R v Henry, there is a deal to be said for the view that the sentence here of 7½ years is unduly light. However, there is no Crown Appeal and I need not pursue that question. ********** Last Modified: 10/24/2005 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.