New South Wales Court of Criminal Appeal CITATION : Regina v Halkias [2004] NSWCCA 429 HEARING DATE(S) : 29/11/04 JUDGMENT DATE : 16 December 2004 JUDGMENT OF : Tobias JA at 1; Hoeben J at 2; Smart AJ at 55 DECISION : Leave to appeal granted; Appeal allowed in relation to malicious damage to property and stealing offences, but dismissed in respect of the robbery in company offence.; Applicant re-sentenced. CATCHWORDS : CRIMINAL LAW: Sentencing - discount for assisting authorities and early plea - offences committed during adjournment of sentencing hearing for other offence - principle of parity. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Postiglione v The Queen (1997) 189 CLR 295 R v Armstrong [2000] NSWCCA 14 R v Doan [2000] 50 NSWLR 115 CASES CITED : R v Henry (1999) 46 NSWLR 346 R v Hoskins [2004] NSWCCA 236 R v PPB [1999] NSWCCA 360 R v Sutton [2004] NSWCCA 225 R v Thomson and Houlton (2000) 49 NSWLR 383 PARTIES : Fates Halkias - Applicant Crown - Respondent FILE NUMBER(S) : CCA 2004/2023 COUNSEL : H Dhanji - Applicant Dr P Power SC - Crown SOLICITORS : Murphy's Lawyers Inc - Applicant S Kavanagh - Solicitor for Public Prosecutions - Crown LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/1031 FILE NUMBER(S) : LOWER COURT Nield DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/2023 TOBIAS JA HOEBEN J SMART AJ Thursday, 16 December, 2004 REGINA v Fates HALKIAS Judgment 1 TOBIAS JA: I agree with Hoeben J. 2 HOEBEN J: Offences and sentence 3 On 11 December 2003 the applicant was sentenced by Nield DCJ in relation to the following three offences: (i) Robbery in company (subs 97(1) of Crimes Act 1900 – maximum penalty imprisonment for 20 years). (ii) Malicious damage to property (subs 195(a) Crimes Act 1900 – maximum penalty imprisonment for 5 years). (iii) Stealing (s117 Crimes Act 1900 – maximum penalty imprisonment for 5 years). 4 The offence of robbery in company occurred on 2 October 2002. The applicant entered a plea to that count on 10 July 2003 when the matter was listed in the Local Court. On 10 October 2003 Nield DCJ began hearing the sentence proceedings for this offence. On that day a pre-sentence report was tendered along with a psychologist's report on behalf of the applicant and the applicant gave evidence. The matter did not conclude and the applicant was allowed bail. 5 One day later, 11 October 2003 whilst on bail, the applicant committed the second and third offences of malicious damage to property and stealing. 6 The sentences imposed by his Honour on 11 December 2003 were as follows: (i) Malicious damage to property and stealing – imprisonment for 2 years with a non-parole period of 1 year and 6 months. The non-parole period was set to commence on 11 October 2003 and expire on 10 April 2005 and the parole period was set to commence on 11 October 2003 and expire on 10 October 2005. (ii) Robbery in company – imprisonment for 3 years and 9 months with a non-parole period of 2 years and 3 months. The non-parole period was set to commence on 11 January 2005 and expire on 10 April 2007. The parole period was set to commence on 11 April 2007 and expire on 10 October 2008. 7 Despite the offences being entirely distinct, his Honour determined that there should be some degree of concurrence. Thus the total term was 5 years and the non-parole period was 3 years and 6 months, commencing from the date on which the applicant was taken into custody. 8 The applicant seeks leave to appeal against the above sentences. Factual background Robbery in company offence – 2 October 2002 9 The applicant attended the Crown Hotel at Surry Hills some time after 8 pm on 2 October 2002. The applicant was in company with four other persons, including two males Joseph Goshn and George Haidar and two females, Vivianne Venuto and another female identified only as Irene. 10 At about 10.30 pm Luke Richards, a barman employed at the Hotel, heard an alarm activated for the poker machines. He approached the group and witnessed Joseph Goshn breaking open machine number 10 and the applicant attempting to break open machine number 21. The two females were standing around that machine. Mr Richards challenged the group. Goshn held a foot long thin object, which was thought to be a screwdriver, towards Mr Richards and said "Get back or I'll fucking stab ya". Mr Richards felt threatened and turned away. During this time the four persons (excluding Haidar) were in company with each other. 11 The applicant and the three other persons then ran out of the side door of the Hotel onto Crown Street. Mr Richards and another Hotel employee followed them and observed the group get into a motor vehicle which police later discovered was registered to George Haidar. When Haidar was interviewed by the police he admitted being at the Crown Hotel that night and leaving in the vehicle registered to his name but stated that he was alone when he arrived, whilst he was at the Hotel and when he left. 12 Substantial damage was sustained to the poker machines as a result of the forced entry. The cash box from machine number 10 was stolen and contained $2,880 in cash. The cash box from machine number 21 was not taken. 13 The applicant was arrested on 12 February 2003 and the police interviewed him. During the interview the applicant stated that he had attended Goshn's house in Dulwich Hill prior to attending the Crown Hotel. He said that Goshn, Haidar, Venuto and another female called Irene all went to the Crown Hotel in George Haidar's car. The applicant said that Goshn spoke to him prior to leaving Dulwich Hill about stealing the cash boxes from the poker machines at the Hotel and saying that it was easy to do. The applicant stated that he didn't really want to do it, but was in need of money. The applicant admitted that he and Goshn played on poker machines next to each other for an unknown time and then they both started breaking into the machines with screwdrivers. 14 The applicant stated that a staff member came and asked them what they were doing and that was when Goshn said something threatening to the staff member. The applicant stopped opening the poker machine door and they all ran out to George's car and went back to Goshn's house at Dulwich Hill. When the applicant gave evidence in the sentencing hearing on 10 October 2003 in relation to the robbery in company offence he said that it was Joseph Goshn's idea to commit the offence and that he went along with it because he was under the influence of Rohypnol and he needed some bond money. 15 Joseph Goshn was arrested by police in relation to the matter, but has not been charged with any offence. George Haidar and Vivianne Venuto were charged with the offence of robbery in company and in the alternative, larceny and malicious damage. A joint trial was conducted in October 2003. On 10 October 2003 Venuto was acquitted on all counts and Haidar was convicted only in respect of one count of larceny. Haidar was placed on a good behaviour bond for 2 years in respect of that offence. Offences of malicious damage to property and stealing – 11 October 2003 16 At about 6 pm on 11 October 2003 the applicant attended the Hornsby Railway Hotel in Coronation Street, Hornsby in the company of his co-offender Louis Basic. At 7.24 pm the applicant used a screwdriver to force open a door of a poker machine and remove the cash box. The applicant handed the box to Basic and they ran out of the Hotel. The offence was recorded by the security video and witnessed by an employee of the Hotel. This employee telephoned a member of the Hotel management, who in turn telephoned the police. 17 Police who were patrolling in the vicinity saw two males run to a blue Ford Laser sedan. The police observed the Ford Laser sedan being driven away by Irene Basic. The police activated all warning devices and indicated for the vehicle to stop. The vehicle failed to stop and the police called a pursuit. The vehicle came to a stop at a dead-end and the three occupants were arrested. 18 The police searched the vehicle and located a metal cash box containing $4,295 under the front passenger seat. The applicant declined to participate in an electronically recorded interview. Louis Basic was interviewed and made full admissions to the offence. The applicant pleaded guilty to those offences on 4 November 2003. 19 On 9 December 2003 the applicant gave evidence in relation to the offences of 11 October 2003. The applicant said that it was his co-offender Louis Basic who suggested they commit the offence. He admitted that he took the screwdriver to the Hotel and that he broke open the machine to remove the cash box which he handed to Basic. He agreed to commit the offence because Basic owed him money and he said he would pay him back. Subjective considerations 20 At the time of the offences the applicant was living with his parents in Petersham. He had a de facto partner and a three-year-old daughter. He was employed as an apprentice hairdresser. 21 The applicant has had an ongoing problem with drugs, although he claimed to have substantially overcome this problem at the time of the offences. He did, however, claim to be under the influence of Rohypnol when he committed the robbery in company offence. 22 As of 2 October 2002 when the robbery in company offence was committed, the applicant was on bail in respect of the offences of receiving stolen property, possessing stolen property and travelling in a motor vehicle taken without the consent of the owner. As of 11 October 2003 when the malicious damage and stealing offences were committed, the applicant was not only on bail in respect of the robbery in company offence, but was subject to two bonds pursuant to s9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for 2 years in respect of the receiving and possession offences. He was subject to a community service order in relation to those offences. Ground 1 – The sentencing judge erred in sentencing the applicant on the basis that the robbery offence was planned. 23 It was submitted on behalf of the applicant that the sentencing judge had erred when he noted that the robbery in company offence had been planned whereas it was clear that only the stealing offence had been planned. The fact that this offence had escalated into robbery was entirely unplanned and was due solely to the unexpected behaviour of Ghosn in threatening a member of the Hotel staff with a screwdriver. 24 In order to understand what his Honour did, one needs to appreciate the context in which his Honour referred to the planning of the offence. At ROS 8.6 his Honour said: "The first offence that of robbery in company, is a very serious offence. It is one contrary to s97 of the Crimes Act . The prescribed punishment for the offence is imprisonment for a maximum of 20 years. The offence cannot be dealt with summarily. The Court of Criminal Appeal's judgment in Henry is applicable by analogy to the offence. Having regard to Henry these features are important: (1) The offender is a young man just 21 years 6 months when he committed the first offence, and only 22 years 8 months now. (2) He has a record of offences involving dishonesty. (3) He was on conditional liberty at the time of committing the offence. (4) The offence was planned, albeit without much sophistication. (5) A threat of the use of violence was made albeit not by the offender. (6) No-one was injured. (7) A not insignificant amount of money was taken and none of it was recovered by police or has been returned by the offender." 25 In addition to noting similarities with the decision of R v Henry (1999) 46 NSWLR 346 his Honour had specific regard to other matters – aggravating features in that the offence was committed whilst on conditional liberty, assistance to the police, the applicant's early plea, the absence of contrition, the unlikelihood of successful rehabilitation, general and specific deterrence and the absence of special circumstances. No further reference was made to planning. 26 Looking at the totality of his Honour's remarks on sentence in relation to the robbery in company offence, it is apparent that the planning element to which his Honour had regard played very little part in his Honour's reasoning process. In any event it is clear from his Honour's recital of the facts that his Honour was well aware that the planning element was related to the stealing offence and that this was what he was referring to by analogy with the decision in R v Henry. 27 In my opinion ground 1 has not been made out and no error has been identified such as would justify interference with his Honour's sentence. Ground 2 – The sentencing judge erred in failing to properly discount the applicant's sentence in relation to the robbery offence as a result of his assistance to the authorities. 28 This ground of appeal was relied upon to support two arguments. (i) That an additional discount should have been given because of the assistance provided by the applicant to police. (ii) That an additional discount should have been given because the applicant by pleading guilty to the robbery in company offence established his own guilt, a matter which would have been very difficult for the police to otherwise establish. 29 At ROS 11.1 his Honour said: "The offender pleaded guilty to the offence of 2 October 2002 and the offences of 11 October 2003 at the earliest appropriate opportunity and, therefore, he is entitled to a discount in sentence of twenty five percent for his guilty pleas, they having the greatest utilitarian value. Earlier at ROS 10.9 his Honour said: "As to the offence of 2 October 2002, when he was interviewed the offender admitted to police what he had done and he identified his co-offenders, other than the one named "Irene"." 30 The complaint by the applicant was that his Honour's judgment lacked transparency in that although his Honour had referred to the assistance provided by the applicant, it was not apparent that his Honour had taken it into account when fixing the sentence. Reference was made to decisions of this Court where transparency in the sentencing process was recommended. 31 The Crown submitted that the assistance provided by the applicant was minimal. At most it involved the identification of Joseph Goshn. The police already had information which identified George Haidar and Vivianne Venuto. The applicant refused to provide any further information about the second female, other than the name "Irene". Of considerable significance was the fact that the applicant did not give evidence against his co-offenders, ie Ms Venuto and George Haidar. 32 The Crown submitted that when considering the limited assistance provided by the applicant against the background of what the police already knew, it was not surprising that the police did not provide a "letter of comfort". 33 In relation to this submission the comments of Levine J in R v Hoskins [2004] NSWCCA 236 are appropriate: "[53] Even if I were persuaded that some discrete separate allowance must be made and quantified (see Regina v PPB [1999] NSWCCA 360) any such allowance would be so minimal it could safely be said to be incorporated in the twenty five percent allowed by the judge for a plea on arraignment and with which the Crown does not take issue. It must be borne in mind that s23(3) of the Crimes (Sentencing Procedure) Act provides that any discount allowed as a result of assistance to the authorities must not result in a penalty which is "unreasonably disproportionate to the nature and circumstances of the offence". (Sully J Regina v Armstrong [2000] NSWCCA 14 at [15]-[17])" 34 While the assistance offered by the applicant in relation to the robbery in company offence was slightly more than that given by the applicant in Hoskins' case, the assistance was still very limited. It is to be noted that Goshn has yet to be charged with any offence relating to the 2 October 2002 incident. 35 I can see no error on the part of his Honour in not applying any specific additional discount other than the twenty five percent allowed for the early plea of guilty. This argument fails. 36 The applicant's second argument was that because the Crown would have had some difficulty in proving the robbery in company offence without the admission of guilt by him, an additional discount beyond the twenty five percent already allowed for the plea should have been made. 37 The strength or weakness of the Crown case is relevant to questions of contrition and remorse but not to the utilitarian value of the plea of guilty (R v Sutton [2004] NSWCCA 225, R v Thomson and Houlton (2000) 49 NSWLR 383). Because of the circumstances which arose during the sentencing process for this offence (ie the commission of the stealing and malicious damage offences) his Honour found, as he was entitled to do, that the applicant had no contrition or remorse in relation to it. The suggested weakness in the Crown case does not invalidate his Honour's conclusions as to remorse and contrition. 38 In any event his Honour allowed in the applicant's favour the maximum discount in the range suggested in R v Thomson and Houlton for the utilitarian value of the early plea of guilty. This case did not raise one of the exceptions specifically referred to in R v Thomson and Houlton nor did it raise the sort of considerations referred to in R v Ellis (1996) 6 NSWLR 603. Accordingly, there was no requirement for his Honour to increase the discount beyond the twenty five percent already allowed by him. 39 No error has been revealed in his Honour's approach to the applicant's plea of guilty to the robbery in company offence and the second argument under this ground of appeal fails. Ground 3 – The applicant has a justifiable sense of grievance by virtue of the disparity between the sentences imposed upon him in relation to the offences of stealing and malicious damage and those imposed upon his co-offender, Louis Basic 40 Louis Basic pleaded guilty in the Local Court to the offences of malicious damage and stealing committed in company with the applicant on 11 October 2003. He was sentenced in the Local Court to concurrent terms of 3 months imprisonment for those offences. He was also sentenced to concurrent terms of 3 months imprisonment in relation to four other stealing and malicious damage offences which occurred on 2 March 2003. These were unrelated to the applicant. It is the lack of parity between that sentence and the 2 year sentence with a non-parole period of 18 months imposed on the applicant for the offences of 11 October 2003 which is relied upon to support this ground of appeal. 41 The 3 months sentence of imprisonment imposed on Louis Basic was specifically brought to the attention of his Honour. At ROS 12.9 and 13.1 his Honour said: "As to the offences of 11 October 2003, Louis Basic was charged with the offences of malicious damage to property and stealing and Irene Basic was charged with some driving offences. Louis Basic pleaded guilty to the offences and he was dealt with by a magistrate in the Local Court, being sentenced to imprisonment for a fixed period of 3 months for each offence with the sentences to be served concurrently. I do not know the criminal record, if any, of Louis Basic … and as to the offences of 11 October 2003, the offender must suffer a more severe punishment than Louis Basic, albeit that I do not know of his criminal record, if any, as the offender is being dealt with in the District Court whereas Basic was dealt with in a Local Court." 42 The question of parity was thus specifically raised. His Honour erred in dealing with that issue by simply referring to the different courts before which the offenders appeared. Both offenders were to be sentenced pursuant to the provisions of the Crimes (Sentencing Procedure) Act and in particular ss 3A and 21A. The upper limit available to a magistrate is a jurisdictional maximum and not a maximum penalty (R v Doan [2000] 50 NSWLR 115 at para 35). The sentence imposed on Louis Basic could not be disregarded for the purposes of parity. 43 The question then arises as to whether his Honour's error in this regard should lead to a reduction in the applicant's sentence. Can his Honour's sentence be supported on other grounds? 44 There were a number of distinguishing features between the applicant and Louis Basic. The applicant had a significantly more serious criminal record which included a 6 months period of imprisonment. 45 While both offenders had committed these offences whilst on conditional liberty, the circumstances of the applicant involved significantly more aggravating features than those which applied to Louis Basic. 46 Not only was the applicant on bail for the robbery in company offence, but he was subject to two s9 good behaviour bonds. By far the most aggravating feature was the fact that these offences occurred whilst the applicant was participating in the sentencing procedure in relation to the robbery in company offence. He had in fact given evidence in those proceedings on the day before the offences occurred. The commission of the offences in those circumstances, as his Honour appreciated, demonstrated utter contempt for the criminal justice system. 47 As his Honour also appreciated, the commission of the offences in the circumstances described demonstrated that the applicant was without contrition and remorse and was not motivated towards ceasing his criminal conduct. Successful rehabilitation was unlikely. 48 The circumstances in which these offences occurred required a sentence which included a significant element of both general and personal deterrence. The sentence needed to make it clear to other offenders that court processes are not to be abused in this way. Similarly, the sentence had to be sufficiently heavy to deter the applicant from re-offending. This was particularly so since the circumstances of the offences were almost identical to those associated with the robbery in company except for the aggravating features which converted that offence into a robbery. 49 Those distinguishing features make it clear that the circumstances surrounding the commission of the offences by the applicant were significantly more serious than those which applied to Louis Basic. Even without knowing all of the facts, the 3 months sentence of imprisonment imposed on Louis Basic does appear to be unduly lenient. There is certainly no basis for reducing the sentence of imprisonment of the applicant to something similar to that of Mr Basic. 50 Having said that, the principle of parity is an important concept in the sentencing process and is not lightly to be disregarded. "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a "justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." ( Postiglione v The Queen (1997) 189 CLR 295). 51 In this case the sentence imposed by his Honour in respect of the malicious damage and stealing offences was appropriate and within the permissible range of sentencing options. It is only when that sentence is compared to that of Louis Basic that the need for intervention by this Court becomes apparent. The disparity between the sentence of 2 years imprisonment with a non-parole period of 18 months and a sentence of 3 months imprisonment is simply too great to be wholly explained by the distinguishing features surrounding the commission of the offences by the applicant on the one hand and Louis Basic on the other. 52 In my opinion, error has been disclosed in the sentences imposed by his Honour in relation to the malicious damage and stealing offences of 11 October 2003 in that sufficient regard was not had to the principle of parity. Conclusion 53 I would reduce the sentence of imprisonment in respect of the malicious damage and stealing offences to 16 months with a non-parole period of 12 months. I would not interfere with the sentence of imprisonment imposed in relation to the robbery in company offence except as required by the reduction in the sentence in respect of the other offences. 54 I propose the following orders: (1) Leave to appeal granted. (2) Appeal allowed in relation to the malicious damage to property and stealing offences but dismissed in respect of the robbery in company offence. (3) The sentences in respect of the offences of malicious damage to property and stealing are quashed. In lieu thereof, the applicant is sentenced to a period of imprisonment for 1 year and 4 months with a non-parole period of 1 year and a parole period of 4 months. The non-parole period will commence on 11 October 2003 and will expire on 10 October 2004. The parole period will commence on 11 October 2004 and will expire on 10 February 2005. (4) The sentence for the offence of robbery in company of imprisonment for 3 years 9 months with a non-parole period of 2 years and 3 months and a parole period of 1 year and 6 months is confirmed. The non-parole period will commence on 11 July 2004 and will expire on 10 October 2006 on which date the applicant is to be eligible to be released on parole. The parole period will commence on 11 October 2006 and will expire on 10 April 2008. 55 SMART AJ: I agree with the orders proposed by Hoeben J and generally with his reasons. 56 It appears from the materials before this Court that at the time the Local Court dealt with Basic for the offences of malicious damage to property and stealing of 11 October 2003 that it also dealt with him for two further stealing offences (both involving the removal of cash boxes from machines in an hotel) and another malicious damage to property offence. On each of these further offences he was sentenced to concurrent terms of imprisonment for 3 months, such sentences to be concurrent with those imposed for the offences of 11 October 2003. This highlights the lack of due proportion between the sentences imposed on the applicant and those imposed on Basic and further supports the order proposed as to Ground 3. 57 As to the robbery offence, in the circumstances of this case the applicant was not entitled to any further discount and a lesser sentence could not correctly be imposed. ********** Last Modified: 12/21/2004 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.