New South Wales Court of Criminal Appeal CITATION : Regina v Dukino; Regina v Moshref [2003] NSWCCA 379 HEARING DATE(S) : 9 December 2003 JUDGMENT DATE : 12 December 2003 JUDGMENT OF : Barr J at 1; Newman AJ at 2 DECISION : Leave granted to appeal but appeals dismissed. CATCHWORDS : Criminal Law - appeal against severity of sentence - parity of sentence - totality - use of criminal record. Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 R v Thompson and Houlton (2000) 49 NSWLR 383 Lowe v The Queen (1984) 154 CLR 606 CASES CITED : The Queen v Henry (1999) 46 NSWLR 346 R v Hoschke [2001] NSWCCA 317 R v Astill (No2) (1992) 64 A Crim R 289 Oastler (unreported, Court of Criminal Appeal, NSW, 7 October 1992) Regina PARTIES : Alan Dukino Adrian Moshref FILE NUMBER(S) : CCA Dukino: 60357/03;; Moshref: 60311/03 Dukino: Applicant - D Dalton COUNSEL : Respondent - P Miller Moshref: Applicant - M Buscombe Respondent - P Miller Dukino: Applicant - N Velcic SOLICITORS : Respondent - V Boulous Moshref: Applicant - M Marx Respondent - V Boulous LOWER COURT District Court JURISDICTION : LOWER COURT Dukino: 02/21/0273; FILE NUMBER(S) : Moshref: 02/21/0331 LOWER COURT Nield J JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60311/03, 60357/03 Barr J Newman AJ 12 DECEMBER 2003 Regina v Adrian Moshref Regina v Alan Dukino Judgment 1 BARR J: I agree with the judgement of Newman AJ. 2 NEWMAN AJ: These are applications for leave to appeal brought by one Adrian Moshref and one Alan Dukino against sentences imposed upon them by His Honour Judge Nield in the District Court on the 4th of March 2003. 3 Both pleaded guilty to offences arising from the same set of circumstances, however the form of indictments presented against them were different. 4 In the case of Moshref he was charged with three counts of robbery in company. Two of those counts of robbery in company arose from events which occurred at Guildford Railway Station on the 22nd of February 2002 and the third count arose from events which occurred at the self same Railway Station on the 26th of February of the same year. 5 In the case of Dukino the indictment presented against him contained but one count. That count of robbery in company related to the events which occurred on the 26th of February 2002 at Guildford Railway Station which constituted the 3rd count in the indictment presented against Moshref. The events which had occurred at Guildford Railway Station on the 22nd of February 2002 constituted the crimes contained in a Form 1 accompanying the indictment brought against him. 6 In the event both men were sentenced to the self same terms of imprisonment. In the case of Moshref His Honour imposed in relation to the first two counts in the indictment a term of imprisonment for a fixed term of one year and nine months commencing on the 23rd of September 2002 and expiring on the 26th of June 2004. As to count 3 His Honour imposed a term of imprisonment for three years and three months commencing on the 23rd of June 2004 and expiring on the 22nd of September 2007 with a non-parole period of one year commencing on the 23rd of June 2004 and expiring on the 22nd of June 2005. In Moshref's case this meant that His Honour in fact a total aggregate sentence of five years with a non-parole period of two years and nine months commencing on the 23rd of September 2002 and expiring on the 22nd of June 2005. 7 In relation to Dukino his Honour imposed a term of imprisonment of five years in relation to count 1 dating from the 6th of July 2002 and expiring on the 5th of July 2007. He set a non-parole period of two years and nine months commencing on the 6th of July 2002 and expiring on the 5th of April 2005. He imposed a parole period of two years and three months commencing on the 6th of February 2005 and expiring on the 5th of July 2007. In so sentencing His Honour stated that he had taken the matters contained in the Form 1 into account. 8 The maximum penalty prescribed by section 97(1) of the Crimes Act 1900 for the crime of a robbery in company is 20 years imprisonment. 9 On the day when Dukino and Moshref were sentenced a third person who had taken part in the events of the 22nd and 26th of February 2002, one Haytham Youseff, was sentenced at the same time by His Honour. He had pleaded guilty to the self same counts on the indictment presented against him as were contained in the indictment which had been presented against Moshref. He received the self same sentence as Moshref and Dukino. 10 No challenge was made to the facts found by His Honour as to what happened on the 22nd and 26th of February 2002 at Guildford Railway Station. Accordingly I set out His Honours finding: "At about 6.30pm on 22 February 2002 Mr David O'Regan and Ms Mi Vi Do were sitting on a seat on one of the platforms at Guildford Railway Station when they were accosted by a group of young people. There were three young men and a young woman in the group. One of the young men crouched down in front of Mr O'Regan. The other two young men stood behind the young man crouched down in front of Mr O'Regan and the young woman stood in front of Ms Do. The three young men were Mr Youseff, Mr Moshref and Mr Dukino and the young woman was Ms Rebecca Bell. The young man crouching in front of Mr O'Regan demanded that Mr O'Regan hand over his mobile telephone and his wallet. When Mr O'Regan refused, the young man punched the left side of Mr O'Regan's face with his closed right hand and took his mobile telephone. As this was happening, Ms Bell demanded that Ms Do hand over her bag. When Ms Do refused, Ms Bell threatened to hit her. In fear of what might happen to her, Ms Do opened her bag and removed her money from it, about $200, which she gave to Ms Bell. As this was happening, the man who had punched Mr O'Regan removed Mr O'Regan's wallet from his pants pocket and, after going through it and removing a five dollar note from it, threw it back at Mr O'Regan. Then, Mr Youseff, Mr Moshref, Mr Dukino and Ms Bell ran off. As a result of the robbery, Mr O'Regan lost his mobile telephone, for which he had paid $170, and $5 cash money and Ms Do lost about $200 cash money." I should add that there was no issue that it was Moshref who struck Mr O'Regan. 11 His Honours findings continued as follows: "At about 6.50pm on 26 February 2002 Ms Tid Ang was performing her duties as a customer service attendant at Guildford Railway Station in the course of her employment with the State Rail Authority. After she had unlocked the locked door of the station-master's office, in order to enter into the office, someone pushed her from behind and she turned around to see who had pushed her. She saw a young man. This young man hit her on her face with one of his hands, covered her mouth with the palm of one of his hands and pushed her into the office. Then she saw a second young man. This young man entered the office and, after putting his hands in the pockets of her uniform, removed a key from one of her pockets. Then the first young man pushed her onto the floor of the office and pushed her head against the floor. From where she was on the floor, she saw another two young men enter the office. On entering, one of these two young men kicked her left thigh and stood on her left foot. After taking about $480 from a drawer under the counter in the office, the four young men left the office. On their leaving, one of them kicked her left foot. Three of the four young men were Mr Youseff, Mr Moshref and Mr Dukino. As a result of the robbery, the State Rail Authority lost $480 cash money. As a result of being assaulted during the robbery, Ms Tid Ang suffered contusions to her lips, chin, right side of her face and left foot." 12 As I have already noted the form of the indictments presented against Dukino and Moshref were different in form. However, when Dukino was first arraigned before His Honour Judge Nield on the 26th of September 2002 he in fact had an indictment presented against him containing the self same 3 counts as ultimately were contained in the indictment presented against Moshref. At that stage Dukino pleaded not-guilty to the 3 counts on the indictment. After discussion ensued between the Crown authorities and the solicitors for Dukino he was re-arraigned before Her Honour Judge Tupman on the 4th of November when he pleaded guilty to the indictment which by that stage had taken the form of the indictment before His Honour Judge Nield. Plainly enough it was a fact that when the matter was first before His Honour Judge Nield on the 26th of September when the applicant Dukino pleaded not-guilty which caused His Honour to find that his plea of guilty was not made at the first available instance. I shall return to this matter when dealing with the grounds of appeal raised on Dukino's behalf. 13 Moshref, Dukino and Youseff are all young men. When His Honour sentenced them on the 4th of March this year Moshref was aged 19 years and 5 months, Youseff 19 years and 4 months, and Dukino 21 years and 2 months. All three had, for young men of their age, appalling criminal records. Youseff had no less than 18 convictions including 3 for robbery in company, 2 for break, enter and steal, 1 for stealing from a person, 1 of larceny and 1 of possessing stolen property. In Dukino's 17 convictions there were no less than 2 convictions for aggravated robbery, 1 for robbery in company, 1 for break, enter and steal, three for stealing from a person and 1 for possessing stolen property. Moshref had 9 convictions including 1 for robbery in company, 2 for break, enter and steal, 1 for stealing from a person and 1 for possessing stolen property. 14 At the time of the commission of these offences Youssef was on bail on charges of stealing and possessing stolen property. Moshref was the subject of two good behaviour bonds at time of the commission of the offences, namely one for the offence of assault occasioning actual bodily harm and a second good behaviour bond for the offences of stealing from a person, maliciously destroying property and two offences of breaking, entering and stealing. His Honour rightly conceded that the commission of the subject offences at the time when both were on conditional liberty was an aggravating feature. 15 As no challenge was mounted to His Honour's treatment of other subjective features relating to the two applicants, I do not believe that it necessary for me to detail them here. Accordingly, I shall now turn to the matters raised on behalf of the two applicants before this court. Application of Dukino 16 The first ground of appeal raised on Mr Dukino's behalf was that His Honour erred in allowing a discount of fifteen percent in relation to his plea of guilty, whereas he made an allowance of twenty-five percent in relation to the pleas of guilty to the three counts contained in the indictments presented against Moshref and Youseff. 17 The discretion vested in a sentencing Judge to impose a lesser sentence because an accused person has pleaded guilty is to be found in section 22(1) of the Crimes (Sentencing Procedure) Act 1999. That section clearly states that in circumstances where an accused person has pleaded guilty the court "may" impose a lessor penalty. In the guideline judgement of R v Thompson and Houlton (2000) 49 NSWLR 383, Spigelman CJ at 160 stated: "(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge." His Honour had earlier said: 152. "In my opinion, the appropriate range for a discount is from 10-25 percent. 153. The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. 154. There are however two circumstances which will generally affect the appropriate level of discount in a particular case: i. The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. ii. The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. 155. The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, eg. On the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial." 18 Here the offence of robbery in company to which the applicant pleaded guilty on the 4th of November 2002 was the self same count to which he had entered a plea of not-guilty on the 26th of September 2002. While, as the Crown submits, he may have been persuaded to plead guilty to the 1 count on the indictment finally presented against him because the two charges arising from the events of the 22nd of February 2002 were placed on a Form 1, the fact remains that he did not plead guilty to the charge of robbery in company arising from the events of the 26th of February 2002 at the first opportunity. Accordingly I am of the view that His Honour did not fall into error in finding as he did. Accordingly I am of the view that this ground must fail. 19 The second ground of appeal urged upon this court on behalf of Dukino was that he had a legitimate sense of grievance. His sentence was compared with that imposed upon Youssef and Moshref on the basis when the principles of parity are applied. 20 The concept of parity in sentencing was clearly stated by Gibb CJ in Lowe v The Queen (1984) 154 CLR 606 at 609 where he said: "It is obviously desirable that personas who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account." 21 His Honour did consider the concept of parity in sentencing in his remarks on sentence involving all three of the accused before him. He took into account the ages of the three offenders, the parts they played in the relevant offences, the fact that Youssef and Moshref were on conditional liberty at the time, and all other matters of relevance in sentencing the trio. His Honour appreciated that Dukino was somewhat older than the other two offenders and took this matter into account. In essence what His Honour did was to carry out a balancing exercise in which he considered all matters relevant to the three offenders. He concluded that having carried out that balancing exercise all three offenders should suffer the safe fate. In my view no error has been demonstrated in His Honours approach. Accordingly this ground of appeal must also fail. 22 Finally it was submitted albeit without much conviction that the sentence in any event was manifestly excessive. As I have already noted the maximum penalty prescribed for the offence of robbery in company is 20 years imprisonment. The statistics here before this court from the Judicial Commission indicated that the sentence imposed upon the applicant fell squarely within the range of sentences imposed for this offence. It also fell squarely within the framework of the guideline judgement in The Queen v Henry (1999) 46 NSWLR 346. It follows that I am of the view that this ground of appeal must also fail. I shall return to the orders which I propose at the completion of these reasons. Application of Moshref 23 Essentially the first ground of appeal argued on behalf of this applicant was that because he had but 9 previous convictions at the time when His Honour sentenced him and Youseff had 18 and Dukino had 17 he should have received a lessor sentence, again in so arguing the principles of parity adumbrated in Lowe's Case were urged upon the court. 24 The use of criminal antecedents in the sentencing process involves a qualitative and not a quantitative process of reasoning. A person convicted of an offence who has no prior antecedents whatsoever may well expect, all other things being equal, to receive greater leniency from a court than a person who has a number of convictions for not only the self same offence but other offences. When I say all other things being equal it is obvious that a person with no prior criminal record who engages on a number of serial killings cannot expect to receive any leniency from the court even though he has an impeccable record prior to the commencement of his rampage. In the instant case the importance of the criminal antecedents in relation to all three of the persons who were sentenced by Judge Nield on the 4th of March this year was that their criminal histories indicated that the sentence imposed must contain a very powerful element of personal deterrence for each of them. In these circumstances the fact that Moshref had but 9 previous convictions whereas his co-offender had 17 and 18 convictions is not a matter which meant that His Honour had failed to properly apply the principles of parity in sentencing. This ground must fail. 25 The second ground urged on behalf of the applicant Moshref was that His Honour failed to take into account the principles of totality. It is true that His Honour did not specifically refer to the concept of totality as such in his reasons. However, His Honour did state that the sentence (in relation to all three) should not exceed 5 years. His Honour did in Moshref's case order that the sentences for the events of the 22nd of February, where there were two victims, should be served concurrently and the offence eof the 26th of February should be served partly concurrently and partly consecutively. In structuring the sentence against the applicant in the way he did His Honour in fact applied the principle of totality although he did not, as I have said, expressly say so. It follows that I am of the view that this ground must fail. 26 Alternatively it was submitted that His Honour erred in finding that the applicant Moshref had only gone into custody on the 23rd of September 2002 whereas he had been in custody from the 3rd of July 2002 for breaching the terms of the good behaviour bonds to which I made reference earlier in this reasons. The matter was, as the transcript reveals, clearly raised before His Honour during submissions on sentence. The fact that His Honour did not mention this aspect in his reasons does not mean that in fact he had disregarded them. Indeed it is doubtful if a Judge of His Honour's experience would overlook such a matter. Accordingly I am of a view that this ground must also fail. 27 In relation to both appeals principles of parity loomed large. In determining the question of responsibility for what was a joint enterprise in which all participants were willing to assist the judgement of Carruthers in R v Hoschke [2001] NSWCCA 317 at paragraphs [18]-[19] are instructive. His Honour there said: "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. As English trial judges tend to say; the question is 'Were they in it together?' In this case the answer must be a resounding 'yes', and viewed from an objective point of view, the participants should bear equal responsibility for the commission of the offence. Each was there to assist the other." 28 Even if His Honour had been found to be in error I am of the view that this court would in any event find that the sentence passed on both the applicants here was in the terms of section 5(1) of the Criminal Appeal Act 1912 to be sentences "warranted in law". As Lee AJ put it in R v Astill (No 2) (1992) 64 A Crim R 289: "The fundamental function of the Court in an appeal under s 5(1) [of the Criminal Appeal Act 1912] id to determine whether some other sentence is "warranted at law". It is not I mention the practice of the Court to increase sentences. A proper sentence is one which takes into account the objective seriousness of the crime and any aggravating features and then the circumstances subjective to the applicant or extraneous to the crime itself which permit leniency. It is that mix of circumstances which the sentencing judge must evaluate and there is usually considerable scope for disagreement as to the weight or significance to be given to the factors, which make up the total mix. When an appeal is brought to the court under s 5(1) it may well be that the court will consider the sentence passed to be "warranted in law" even though the court may not be in agreement with the weight assigned by the sentencing judge to particular features, or his selection of the substantial matters which guide him to him conclusion. In such a case the appeal fails. Even where the court concludes that the judge has made a mistake of law, the court may still hold that the sentence is not excessive and should stand. A good illustration of such a case is Oastler (unreported, Court of Criminal Appeal, NSW, 7 October 1992)." 29 In both applications because of the importance of the matter to both applicants I would grant leave to appeal but would dismiss the appeals. ********** Last Modified: 12/16/2003 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.