R v Bahsa [2003] NSWCCA 36

Reported Decision : 138 A Crim R 245

New South Wales Court of Criminal Appeal

CITATION : R v Bahsa [2003] NSWCCA 36 HEARING DATE(S) : 25/02/03 JUDGMENT DATE : 12 March 2003

JUDGMENT OF : Sheller JA at 1; James J at 6; Smart AJ at 97 DECISION : Crown appeal against sentence allowed - Respondent re-sentenced

CATCHWORDS : Criminal law - sentencing - Crown appeal against sentence - multiple offences - armed robbery - detaining for advantage - "guideline" offence - totality Everett v The Queen (1994) 181 CLR 295 R v Henry (1999) 46 NSWLR 46 Pearce v The Queen (1994) 194 CLR 610 R v Baker (2000) NSWCCA 85 CASES CITED : R v Hammoud (2000) 118 A Crim R 66 R v AEM (2002) NSWCCA 58 R v Myers (2002) NSWCCA 162 R v Finnie (2002) NSWCCA 533 R v Fernando (2002) NSWCCA 28 R v Sharma (2002) NSWCCA 142 PARTIES : Regina v Ammin BAHSA FILE NUMBER(S) : CCA 60493/02 COUNSEL : GIO Rowling - Crown In Person - Respondent SOLICITORS : SE O'Connor - Crown Graham W Howe & Company - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0189; 02/21/0177; 02/21/0178; 02/21/0188 FILE NUMBER(S) : LOWER COURT Tupman DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60493/02

SHELLER JA JAMES J SMART AJ

Wednesday 12 March 2003 REGINA v Ammin BAHSA Judgment 1 SHELLER JA: I have had the benefit of reading the reasons for judgment in draft prepared by James J. I agree with those reasons and the sentences his Honour proposes. However, I wish separately to express my concern at the serious inadequacy of the sentences imposed in the District Court. 2 Given that, as James J pointed out, the fixed term sentences imposed for each of the eight offences of armed robbery should be treated as the equivalent of non-parole periods and that, as the sentencing Judge found, there were no special circumstances, only one, charge 11, fell within the range of four to five years for the appropriate head sentence suggested in R v Henry (1999) 46 NSWLR 346 at pars 161-170 and even that one was at the bottom of the range. 3 As James J has also pointed out, the offence in charge 11 was committed by the respondent in company and armed with a large knife. The victim attendant, who was working alone at the service station, was pushed, punched and his lip was cut. 4 James J has quoted, from the sentencing Judge's statement of the facts of the offences, what her Honour said about the detention of Mr Drivilas. During that episode the respondent threatened to kill Mr Drivilas who was then aged 17. The offence was committed in company. Mr Drivilas was covered so that he could not see and believed a sharp object pressed against his skin and his neck was a knife. He was searched and robbed. He was forced into motor vehicles. His shoes and trousers were removed and he was tied up. He was driven about Sydney, blindfolded, tied up and semi-naked. Burning cigarettes were stubbed out on his bare skin. The sentencing Judge accepted that he thought he was going to die. For that offence, together with an offence of robbery in company and an offence of being carried in a conveyance without the consent of the owner, the sentencing Judge thought an overall sentence of about five years with a non-parole period of about three years adequately reflected the total criminality, but imposed a sentence of imprisonment for four years with a non-parole period of two years. In my opinion, the sentence was seriously inadequate and failed to recognise in any meaningful way the criminality of what the appellant did. 5 As James J has said, the sentences imposed by this Court, when re-sentencing the appellant, must and do give to him the benefit of the fact that his freedom beyond the sentence imposed has been put in jeopardy for the second time; Everett v The Queen (1994) 181 CLR 295 at 299. For that reason, it should be recognised that the sentencing imposed by this Court stand at the lower end of the range of what should have been imposed at first instance. 6 JAMES J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act against sentences imposed on 1 November 2002 in the District Court by her Honour Judge Tupman on the respondent Ammin Bahsa. 7 Her Honour sentenced the respondent for eight offences of armed robbery, which were referred to in the proceedings on sentence and which have been referred to on this appeal as offences or charges 1 to 7 and 11; for one offence of aggravated detaining for advantage, the circumstance of aggravation being the occasioning of actual bodily harm (offence or charge 8); for one offence of robbery in company (offence or charge 9); and for one offence of being carried in a conveyance without the consent of the owner, knowing that the conveyance had been taken without consent (offence or charge 10). The respondent had pleaded guilty to all eleven charges. 8 Armed robbery is an offence under s 97(1) of the Crimes Act for which the maximum penalty is imprisonment for twenty years. Robbery in company is also an offence under s 97(1) of the Crimes Act, with the same maximum penalty. Aggravated detaining for advantage, where the circumstance of aggravation is the occasioning of actual bodily harm to the victim, is an offence under s 86(2)(b) of the Crimes Act for which the maximum penalty is imprisonment for twenty years. Being carried in a conveyance without the consent of the owner knowing that the conveyance has been taken without the owner's consent is an offence under s 154A(1)(b) of the Crimes Act for which the maximum penalty is imprisonment for five years. It is convenient to refer to this last offence as "the s 154A offence". 9 The sentences imposed by her Honour were as follows. On each of the first three charges her Honour imposed a fixed term of imprisonment of two years commencing on 18 February 2002, the date on which the respondent had been arrested and taken into custody, the sentences to be served fully concurrently with each other. On each of charges 4 to 7 her Honour imposed a fixed term of imprisonment of two and a half years commencing on 18 February 2002, the sentences to be served fully concurrently with each other. On charge 11 her Honour imposed a sentence of a fixed term of imprisonment of three years commencing on 18 February 2003, that is one year after the commencement of the sentences on the first seven charges, and expiring on 17 February 2006. On charge 8 her Honour imposed a sentence of imprisonment of four years commencing on 18 February 2006, that is on the expiration of the sentence on charge 11, with a non-parole period of two years commencing on 18 February 2006 and expiring on 17 February 2008. On charge 9 her Honour imposed a fixed term of imprisonment of two years commencing on 18 February 2006, that is a sentence to be served fully concurrently with the non-parole period of the sentence on charge 8. On charge 10 her Honour imposed a fixed term of imprisonment of one year commencing on 18 February 2006, that is a sentence to be served fully concurrently with part of the non-parole period of the sentence on charge 8. The total effective sentence imposed on the respondent was a sentence of imprisonment for eight years commencing on 18 February 2002, with fixed terms and a non-parole period totalling six years. 10 All the offences were committed within a period of about three and a half weeks between 25 January 2002 and 17 February 2002. The first seven armed robberies were committed on 25 January 2002, 28 January 2002, 31 January 2002, 3 February 2002, 5 February 2002, 9 February 2002 and 15 February 2002. The final four offences, that is offences 8, 9, 10 and 11, were all committed on 17 February 2002. Within a very short period after committing these offences the respondent was arrested and he was continuously in custody up to the time when he was sentenced on 1 November 2002. The Crown appeal against the sentences was filed by the Director of Public Prosecutions on 15 November 2002. 11 Her Honour's statement of the facts of the offences in her remarks on sentence was not the subject of any complaint by either party on the hearing of this appeal and the following brief summary of the facts of offences 1 to 7 is derived from her Honour's remarks on sentence.