Regina v Nair [2003] NSWCCA 368

New South Wales Court of Criminal Appeal

CITATION : Regina v Nair [2003] NSWCCA 368 HEARING DATE(S) : 03/12/03 JUDGMENT DATE : 3 December 2003

JUDGMENT OF : Spigelman CJ at 1,22,24; Dunford J at 23; Hidden J at 2 DECISION : Appeal dismissed

CATCHWORDS : CRIMINAL LAW: Crown appeal against inadequacy of sentence - robbery in company (2) - suspended sentence and s 9 bond - respondent's role limited - very favourable subjective case. LEGISLATION CITED : Crimes Sentencing Procedure Act, 1999 R v Barre [2002] NSWCCA 432 R v Blackman and Walters [2001] NSWCCA 121 CASES CITED : R v Donovan [2003] NSWCCA 324 at par 26 R v Henry (1999) 46 NSWLR 346 at pars 162-5 Murchie (1999) 108 A Crim R 482 R v Zamagias [2002] NSWCCA 17 at par 23 ff PARTIES : Crown Nilseh Nand Nair FILE NUMBER(S) : CCA 60291/03 COUNSEL : G Rowling - Appellant/Crown G Halsall - Respondent SOLICITORS : CK Smith - Appellant/Crown S O'Connor - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0107 FILE NUMBER(S) : LOWER COURT Karpin DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60291/03

SPIGELMAN CJ DUNFORD J HIDDEN J

Wednesday, 3 December, 2003 REGINA v Nilesh Nand NAIR Judgment 1 SPIGELMAN CJ: I ask Hidden J to deliver the first judgment. 2 HIDDEN J: This is an appeal by the Director of Public Prosecutions against sentences imposed upon the respondent, Nilesh Nand Nair, in the District Court in respect of two charges of robbery in company. The respondent had pleaded guilty to those charges before Karpin DCJ. Her Honour sentenced the respondent as follows: (1) on the first count, to twelve months' imprisonment, suspended pursuant to s 12 of the Crimes Sentencing Procedure Act . In association with that suspended sentence, her Honour directed the respondent to enter into a good behaviour bond for twelve months on the condition that he accept the supervision of the Probation and Parole Service; (2) on the second count, a good behaviour bond pursuant to s 9 of the Act for eighteen months. 3 The two offences arose from the same incident, which occurred in the central business district of Sydney in the early hours of 15 June 2002. 4 Her Honour summarised the facts in this way: "The facts of the offences are that in the early hours of the morning of 15 June the prisoner and his co-offenders entered the Adult Book Exchange in George Street, Haymarket which is located at the top of a flight of stairs. Present in the shop were the manager and a shop assistant. The prisoner's co-offenders walked up the stairs first. They were told that the shop was shutting. They then went back downstairs but returned again a few minutes later accompanied by the prisoner who entered the store but stood near the doorway. One offender, Chandab, walked behind the counter and engaged in a struggle with the shop assistant in the course of which Chandab punched the assistant to the head and said "I have got a gun, everybody get down on the floor". He then went to the shop manager and pushed him to the floor. Chandab demanded to know who was the manager and the manager volunteered himself. Chandab asked if there was anybody at the rear of the shop and was told there was not. He then said "Open the till and give me all the money". Chandab went to the till with the manager where he repeatedly demanded that the till be opened and the money given to him. Chandab then demanded to know where the security tapes were located. He accompanied the manager to that location and the security tape was removed. Chandab then demanded to know where the safe was and was informed there was not one. Whilst these events were occurring, the unidentified co-offender assaulted and robbed a customer from whom he demanded his wallet from which he took $170 in cash. The customer was then assaulted with kicks and blows to the legs and head. Throughout all of these proceedings, the prisoner remained standing near the exit door. When Chandab returned the manager to the main part of the store, Chandab demanded that everybody get on the ground again. The three offenders then ran from the store. A short time later the prisoner and Chandab were arrested by police with the assistance of a security officer from a nearby nightclub. The third offender made his escape. Upon being searched, Chandab was found to have $2,600 in cash in his shoe. Since the total amount that was taken from the bookshop was $3,787, it must be inferred that the co-offender had the balance of the moneys since nothing was found on this prisoner. In addition, there was $170 taken from the unfortunate customer. The prisoner knew Chandab well, having attended school with him. On the day preceding the offences, the prisoner and Chandab had been drinking throughout the day with other friends. Later in the day they travelled from Blacktown to Sydney with the intention of continuing to drink, which they did. At some point they were joined by their co-offender. The prisoner says this person was unknown to him and he has not been able to identify that person. At the time of committing these offences the prisoner was severely intoxicated. It is not in dispute that the extent of the prisoner's involvement in these serious offences was his presence in the premises and his admitted knowledge that Chandab and the co-offender intended to rob the store when they went up the stairs together. The prisoner gave evidence. The Crown did not challenge his evidence that he did not know what was intended until after Chandab and the co-offender had returned from their first trip to the victim's premises and were about to go back to commit the offences." 5 While the offender Chandab said that he had a gun, no gun was found on his arrest. There is no suggestion that the respondent knew or believed that Chandab had a gun. Her Honour's assessment of the level of the respondent's involvement was as follows: "The prisoner's involvement in these offences was, in the whole scheme of the offences, fairly peripheral. He took no active part in the assaults or actual robberies, he was present and therefore in company with those who were committing the offences. However his very presence no doubt added to the fear and intimidation experienced by the victims, who would be entitled to believe that the prisoner would add his weight to the proceedings, if called upon to do so." 6 The respondent was twenty-two years old at the time of the offences and is now twenty-four. He had some prior record for offences of dishonesty. It is to be noted that he was subject to a bond at the time of these offences in respect of a charge of larceny as a servant. 7 He is of Fijian/Indian extraction. His father was killed at work when he was three years old. He came to Australia with his mother and his siblings in 1990. He was educated to Higher School Certificate standard in 1997 and obtained technical qualifications through TAFE in the year 2000. He was in consistent employment. 8 Apart from the death of his father, there were other difficulties in his background. His mother remarried when he was fifteen and friction developed between her and her new husband about where the respondent and his brothers should live. At the age of eighteen, the respondent formed a relationship with a woman which was serious and lasted for some years. However, the relationship broke up as a result of interference by his mother and stepfather due to cultural difficulties. In the same year, his mother and stepfather separated. 9 It was during this period that he committed the offences on his record giving rise to the bond to which I have referred, and a further offence for which he was ordered to perform community service. Also since the age of eighteen, he had been associating with friends who did not share the cultural and moral values of his family. He began to drink and his alcohol consumption increased over the ensuing years. 10 After his arrest for the present offences, however, the respondent stopped drinking. He severed his association with his friends and, as her Honour put it, "resumed a life within his familial, cultural and religious community." Her Honour noted that he had "expressed considerable remorse to others and to the Court when giving evidence." Character references spoke highly of his moral character, his dedication to his family and to his employment. 11 There was a favourable pre-sentence report and psychological report, although the psychological report recommended counselling "to help resolve the conflicts he experiences and to provide him with support to maintain his abstinence from alcohol." Her Honour found that the respondent had "substantially effected his own rehabilitation" and was "unlikely to re-offend." 12 The co-offender, Chandab, had been previously dealt with by another judge for the two robbery charges, together with a charge of goods in custody on a Form I. He was sentenced effectively to imprisonment for five years and three months with a non-parole period of three years and nine months. Her Honour distinguished Chandab from the respondent in the light of Chandab's role in the offences and his much more serious criminal record, which included prior robbery offences. 13 The thrust of the Crown submission in the appeal is that the sentences are manifestly inadequate. The Crown Prosecutor in this Court argues that full-time custodial sentences were called for and that the offences are very serious, notwithstanding the respondent's limited role: certainly no less serious than the type of case considered in the guideline in Henry (1999) 46 NSWLR 346 at paras 162-5, particularly given the level of violence in this case and the considerable amount of money that was taken. 14 The Crown Prosecutor pointed out that the Henry guidelines are relevant even though the offences here are robbery in company rather than armed robbery; see Murchie (1999) 108 A Crim R 482 at para 20 (Simpson J). In addition, of course, the Crown Prosecutor relied upon the fact that the offences were aggravated by having been committed while the respondent was on conditional liberty. 15 It would have been appropriate for her Honour to have had regard to the Henry guideline, although that guideline does not deal in terms with a participant in a robbery who was not the principal offender: see R v Donovan [2003] NSWCCA 324 at para 26 (Hidden and Greg James JJ). Where any offence is committed in company the assessment of the role of the offender standing for sentence is always an important matter. 16 A helpful examination of the sentencing regime established by the Crimes Sentencing Procedure Act is to be found in the judgment of Howie J in R v Zamagias [2002] NSWCCA 17 at paras 23 ff. That examination includes reference to the suspended sentence and, in particular, observations about the suspended sentence which recognise, on the one hand, its salutary effect and, on the other hand, its undoubted leniency: see paras 31 and 32: "31. As s 5 of the Act recognises, the imposition of a sentence of imprisonment is a grave step for a court to take whether or not the offender's liberty is immediately removed or curtained. Section 5(2) requires a court, which imposes a sentence of imprisonment of 6 months or less, to indicate to the offender, and to record, its reasons for imposing such a sentence including the reasons why no penalty other than imprisonment is appropriate. These restrictions upon the power of a court to impose a sentence of imprisonment apply even if the sentence is suspended… A sentencing court, therefore, must recognise that a sentence of imprisonment can be a significant and effective punishment even where the execution of that sentence is suspended. That is why, in the hierarchy of sentencing alternatives, a suspended sentence is considered as more severe than a community service order even though it may appear on its face to be less punitive. 32. Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate." 17 This Court has recognised that in exceptional cases offences of this kind might be dealt with by way of a suspended sentence; R v Blackman and Walters [2001] NSWCCA 121, or even a bond under s 9 of the Act: R v Barre [2002] NSWCCA 432. While there is no immediate parallel between those cases and the present case, this is an exceptional case. I say so in light of the respondent's minor role in the offences, his age and his very favourable subjective case. 18 The course taken by her Honour is clearly very lenient but it was not outside the legitimate bounds of her discretion. Despite his prior abuse of conditional liberty, there was good reason to be confident that the respondent was well on the path towards rehabilitation. It was in the interests of the community that that rehabilitation be achieved. There is, of course, a very real sting in the tail, not only on the suspended sentence but also the s 9 bond. The respondent is in obvious jeopardy of a full-time custodial sentence should he be in significant breach of either bond. 19 In all the circumstances of this somewhat unusual case, I am not persuaded that the sentences are manifestly inadequate. I would dismiss the appeal. 20 SPIGELMAN CJ: I agree. 21 DUNFORD J: I also agree. 22 SPIGELMAN CJ: The order is that the appeal is dismissed.