New South Wales Court of Criminal Appeal CITATION : Regina v BOA MORTE [2003] NSWCCA 75 revised - 4/04/2003 HEARING DATE(S) : 19/03/03 JUDGMENT DATE : 19 March 2003 JUDGMENT OF : Studdert J at 27; Shaw J at 1 DECISION : Leave to appeal granted; appeal dismissed. CATCHWORDS : Criminal Law - sentence - appeal - robbery in company - separate sentence for offence to be taken into account on form 1 - error of law - whether some other sentence warranted in law - application of Henry guidelines Crimes Act 1900; LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999; Criminal Appeal Act 1912; Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; CASES CITED : R v Barton [2002) 121 A Crim R 185; R v Henry (1999) 46 NSWLR 346; PARTIES : REGINA v BOA MORTE FILE NUMBER(S) : CCA 60005/03 COUNSEL : Crown: P.G. Ingram App: G. Bashir SOLICITORS : Crown: S.E. O'Connor App: D.J. Humpreys LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0344 FILE NUMBER(S) : LOWER COURT Bell DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60005 of 2003 Studdert J Shaw J 19 March 2003 Regina v Milton Pinto Costa BOA MORTE Judgment 1 Shaw J: The applicant appeals against a sentence imposed by Bell DCJ in the District Court Sydney on 10 October 2002. The applicant pleaded guilty to an indictment on a charge of robbery in company pursuant to s 97(1) of the Crimes Act 1901. There was a request to take into account an offence of assault occasioning actual bodily harm pursuant to s 59 of the Crimes Act on the Form 1. 2 The trial judge imposed a sentence as follows: For the offence on the indictment, I indicate a head sentence of 3 years. For the offence on the Form 1 certificate, I indicate a sentence of 6 months. In other words, the sentence attaching to the indictment would be 42 months. From that I discount for the pleas of guilty, just under 25 per cent, a discount of 10 months, to reduce therefore an imposed head sentence of 32 months. 3 Special circumstances meant that the trial judge departed from the statutory formula contained in s44(2) of the Crimes (Sentencing Procedure) Act 1999 and imposed upon the applicant a fixed term of thirty two months with a non-parole period of twenty months. 4 The sentence imposed was to commence on 20 November 2001 and the non-parole period would therefore expire on 29 July 2003. 5 The offence on the indictment was described by the trial judge as follows: At approximately 1.30 in the morning of 17 August last year, the victim was walking along the area known as The Broadway, which would be close to Central Railway area of Sydney. He was with companions and they walked past the offender who was in a group of people. Shortly thereafter, running feet were heard behind the victim and his friends. His friends ran ahead and the victim was accosted by the offender, who asked of him 'Do you have any money?' The victim replied that he had only coins, took them from his pocked and handed $3 over to Mr Morte. Clearly the victim's statement of feeling intimidated at that time is understandable. One of the other adults, the now prisoner, Nalagilagi grabbed the victim by his arm and demanded the wallet. He then attempted to remove the victim's wallet from his pants pocket and the victim resisted this. 6 The applicant, it seems, then punched the victim with his right fist and the co-offender spun the victim around and kneed him to his stomach. The victim broke free of his assailants and ran to rejoin his friends. The applicant was later arrested and released on bail. 7 The assault on the Form 1 occurred three months later when the applicant was on bail. The Form 1 describes the assault as follows: The victim was walking on Sydneham Road when four people walked towards him. He was approached by one of these people. The defendant seeing the fight joined in. He [that is, the victim] was grabbed and assaulted. He was punched and kicked to the face, back and stomach. An off duty policeman came to his assistance and the assault stopped. The victim was taken by ambulance to RPA Hospital for treatment. He suffered pain in his back abdomen eye skull and finger. He suffered a bruise to [his] left eye, abrasions to fingers. His back was swollen and his elbow sustained abrasion. He had a swollen mouth and cut upper lip. The victim's name is Venh Luu. 8 Counsel for the applicant at the sentencing hearing submitted that this later offence occurred as a result of the applicant's intoxication and a perceived threat to his own friends. The trial judge rejected a similar submission made in relation to the charge on which the applicant was sentenced. 9 The applicant submitted the trial judge fell into error by imposing a sentence for the offence that was to be taken into account on the Form 1. 10 The applicant also submitted that the trial judge wrongly assessed the objective gravity of the offence, over-stated the criminality of the offender and failed to properly consider the subjective circumstances of the offender, particularly in relation to applying s21A(2)(i) of the Crimes (Sentencing Procedure) Act. 11 In my view the first ground is made out, the trial judge was, with respect, wrong to separately assess and impose a penalty for the offence to be taken into account on the Form 1. 12 In an application by the Attorney General for this Court to issue a guideline on the correct approach to be taken in accounting for offences on a Form 1, that is the Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518 Spigelman CJ (with whom Wood CJ at CL, Grove, Sully and James JJ agreed) affirmed an earlier decision in Regina v Barton (2001) 121 A Crim R 185 in which his Honour said: The position, in my opinion, is that, although a Court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material to the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principal of totality is another. 13 In imposing a sentence of six months imprisonment for the offence on the Form 1, the trial judge failed to appreciate that he was required to sentence the applicant only for the offence on the indictment. As Spigelman CJ said in the Attorney General's Application No. 1 of 2002 at [35]: The statutory scheme, like its common law predecessor ... emphasises that the Court is concerned and concerned only with imposing a sentence for 'the principal offence'. 14 Accordingly, leave to appeal must be granted. 15 However, the Crown submits that the appeal must nevertheless be dismissed. Pursuant to s 6(3) of the Criminal Appeal Act 1912 this Court may only allow the appeal and intervene in the sentencing process if some other sentence is 'warranted in law…and should have been passed'. 16 The applicant received a sentence, in effect, of thirty two months, with a non-parole period of twenty months for an offence of robbery in company, to which he pleaded guilty, something analogous to armed robbery. 17 The applicant submitted this sentence is manifestly excessive and that the trial judge was mistaken in his assessment of the objective gravity of the offence, overstated the level of criminality of the offender and wrongly applied the guideline of this Court in Regina v Henry (1999) 46 NSWLR 346 and failed to properly consider the objective circumstances of the offender. 18 In Regina v Henry this Court determined that an armed robbery involving a young offender with little or no criminal history, a lethal weapon, a limited degree of planning, threats of violence, a vulnerable victim, small amounts taken and a plea of guilty should receive a sentence in a range between four and five years imprisonment. The maximum penalty that may be imposed is twenty years imprisonment. 19 The robbery for which the offender admitted liability involved no lethal weapon, however other factors were present. 20 Thus, to the extent the trial judge had regard to the guidelines in Henry this was done in such a manner that the assessment of the overall criminality of the offender was in the lowest category open to the trial judge. 21 This was so, even taking into account an assault while the offender was on conditional liberty. In my opinion the trial judge assessed the objective seriousness of the offence for which the applicant was sentenced taking into account the offence on the Form 1 in a manner that was reasonably open to him, indeed, in some senses in a manner which was favourable to the applicant. 22 I think the observations in R v Simpson (2001) 53 NSWLR 704 are to point. The Chief Justice pointed out that under the relevant statutory provision this Court must form a positive opinion that some other sentence is warranted in law and should have been passed. 23 I would also refer to the observations of Sully J at [99] – [100] of that case where his Honour said, in effect, that merely because error is demonstrated it does not automatically follow that this Court would intervene in terms of re-sentencing. 24 Legitimate differences can be drawn between Regina v Henry and the present case. However, it seems to me that the trial judge did not fall into fundamental error in having regard to Regina v Henry. He had regard to a published judgment of the Court of Criminal Appeal. 25 Although he did not apply it in any strict or literal sense, he simply regarded it as a relevant consideration. 26 Accordingly, in my opinion there is no basis for this Court to intervene in the sentence which has been imposed. It has not been demonstrated that a lesser sentence is warranted in law and should have been passed. I would propose the orders: 1) Leave to appeal be granted; but that 2) The appeal be dismissed. 27 STUDDERT J: I agree with the conclusions reached by Shaw J. I agree with the orders proposed. 28 Accordingly, the orders of the Court will be: 1) Leave to appeal granted; 2) Appeal dismissed. ******* Last Modified: 04/07/2003 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.