New South Wales Court of Criminal Appeal CITATION: R v Ibrahimi [2005] NSWCCA 153 HEARING DATE(S): 20 April 2005 JUDGMENT DATE: 20 April 2005 JUDGMENT OF: Grove J; Barr J; Latham J DECISION: Leave to appeal granted. Appeal Dismissed. Criminal Appeal Act LEGISLATION CITED: Crimes (Sentencing Procedure) Act Crimes Act R v Wickham (2004) NSW CCA 193 Ranse NSW CCA unrep 8th August 1994 R v Scott [2003] NSW CCA 286 CASES CITED: R v Carter [2001] NSW CCA 245 R v Sutton [2004] NSW CCA 255 R v Tran [2004] NSW CCA 366 R v Henry & ors [1999] NSWCCA 111 PARTIES: REGINA v SOHALI AHMAD IBRAHIMI FILE NUMBER(S): CCA CCA 2004/3175 Mr J Stratton SC COUNSEL: Mr Barrett S O'Connor SOLICITORS: S Kavanagh LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/0232 LOWER COURT JUDICIAL OFFICER: Delaney DCJ - 11 - IN THE COURT OF CRIMINAL APPEAL 2004/3175 GROVE J BARR J LATHAM J 20 APRIL 2005 REGINA v SOHALI AHMAD IBRAHIMI J UDGMENT 1 GROVE J: The Court is in a position to give judgment and I will ask Justice Latham to give the first judgment. 2 LATHAM J: This is an application for leave to appeal against a sentence imposed upon the applicant by his Honour Judge Delaney. The applicant pleaded guilty at Parramatta Local Court on 29th May 2003 to one charge of robbery in company under s 97 (1) Crimes Act. That offence carries a maximum penalty of 20 years imprisonment. The applicant at the time of sentence requested that a further like offence be taken into account on a Form 1. 3 On the 24th February 2004 the applicant was sentenced by his Honour to imprisonment for 4 years to date from 24th February 2004 expiring on the 23rd February 2008. His Honour fixed a non-parole period of 2 years to date from 24th February 2004 expiring on 23rd February 2006. 4 The applicant appeals against that sentence on four grounds as follows: 5 His Honour wrongly took into account as an aggravating feature of the offence the threat of violence, it being an element of the offence of robbery; 6 His Honour erred in treating the vulnerability of the victims as an aggravating feature of the offence; 7 His Honour gave insufficient weight to the plea of guilty and erred in taking into account the strength of the Crown case in assessing the utilitarian value of that plea. 8 The sentence imposed was manifestly excessive 9 The facts giving rise to the offences may be stated in a short compass. The first offence in time being the offence which found its way onto the Form 1 was committed on 19th January 2003. On that day at about 11.00pm the victim, a Mr Keatley, was at Clyde railway station on the concourse overpass. Mr Keatley was approached by the applicant and another male. Mr Keatley was asked "what have you got for us?" to which he replied "don't hurt me man. I've been attacked before. What do you want?" Mr Keatley was told to hand over his wallet which he did. Five dollars was removed from the wallet and Mr Keatley's mobile phone was taken. Mr Keatley's wallet was then returned to him. 10 Little more than a week later on the 27th January 2003 Mr Shah was waiting for a train on the platform of Carlingford railway station at about 9.00 pm. The applicant approached Mr Shah and engaged him in conversation. The applicant went away and returned a short time later with another male. The applicant said to Mr Shah "give me everything otherwise I am going to hurt you. Give me your wallet." Mr Shah felt scared and handed over his wallet. The applicant removed two ten dollar notes and then demanded that the victim supply his chain and ring. Mr Shah objected to that course. The applicant then said "I want this otherwise I am going to hurt you". Mr Shah at that time handed over the chain with a ring attached to it. The applicant also demanded Mr Shah's mobile phone. Mr Shah handed over his mobile phone which was returned to him a short time later, absent the sim card. The ring was also returned to Mr Shah after he had informed the applicant of its religious significance. 11 On 12th February 2003 Mr Shah saw the applicant at Granville railway station and notified a transit police officer who took the applicant's details. On 21st February 2003 the applicant was arrested by police and was interviewed. He made full admissions both in relation to the earlier offence at Clyde and the offence relating to Mr Shah. The applicant had also been identified from close circuit television footage taken at both railway stations at the relevant times. Clothing consistent with that worn by the offender on each occasion was seized by police from the applicant's home on 21 February 2003. 12 Of some significance to the sentencing exercise, the applicant was the beneficiary of a Section 9 Bond to be of good behaviour for 12 months imposed at the Local Court on 28th June 2002 in respect of two counts of common assault. The only other criminal conviction was recorded at Parramatta Local Court on 20th January 2003 for offensive behaviour in respect of which the applicant was fined. The offence committed on 27th January 2003 was therefore aggravated by the fact that the applicant was on conditional liberty at the time and aggravated by the offence on the Form 1. 13 The applicant's subjective circumstances were fully explored in the course of a psychological report under the hand of Helen J Carney which was referred to by his Honour in the course of the sentencing remarks. In addition, his Honour referred to a Probation and Parole Service pre-sentence report dated 13th October 2003. 14 The applicant was 19 years of age at the time of the commission of the offences having been born on 6th July 1983. He was born in Afghanistan and came to Australia in 1993. He successfully completed his higher school certificate in 1999 and later completed TAFE certificates in hygienic food handling and responsible service of alcohol. At the time of sentence he was employed full time as a food technician. His Honour refers to these aspects of the evidence at pages 2 and 11 – 15 of the Remarks on Sentence. 15 Turning to the first ground of appeal, the applicant relies upon a portion of the Remarks on Sentence set out at page 16. Following a reference to the purposes of sentencing according to the Crimes (Sentencing Procedure) Act, his Honour refers to s 21A of that Act in the following terms: " In this case there were, when one looks at the matters under s 21A, threatened violence and the offender, in my opinion, had planned the activity and did not, as he alleged, do it on the spur of the moment." 16 The thrust of the applicant's submission is that the reference to "threatened violence" in that passage offends against the principle which finds expression in s 21A (2) as follows, " The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence". 17 Whilst the Crown submits that a complete consideration of his Honour's Remarks on Sentence do not support the applicant's contention in this regard, there is very little if any scope to construe the passage set out above in any other way. His Honour expressly refers to s 21A and immediately thereafter refers to threatened violence and the premeditation on the part of the applicant, those being aggravating factors (b) and (n). Immediately thereafter his Honour refers to the vulnerability of the victim (l) and the fact that the applicant was on conditional liberty (j). 18 As the applicant's submission makes clear, some threat of force or actual force is an element of the offence of robbery. It was therefore an element of the offence for which the applicant stood to be sentenced. However, the occasions on which this Court has considered a breach of this aspect of s 21A have not invariably resulted in the imposition of a sentence other than that imposed: R v Wickham (2004) NSW CCA 193. Whilst this ground has been made out, the question remains whether any lesser sentence than that imposed is warranted, taking into account the objective and subjective features of the matter. I return to this aspect of the appeal below 19 The applicant's principle submission in relation to ground 2 of this appeal is that the relevant vulnerability of the victims in respect of each of the offences with which his Honour was dealing was not that special vulnerability intended by the legislature given the terms of s 21A (2) (l). It is submitted that the vulnerability of which that particular aggravating factor speaks is one which depends upon either the personal attribute of the victim such as youth, old age or a disability or arising out of the victim's occupation such as taxi driver, bank teller or service station attendant. 20 It is not strictly necessary, for the reasons which follow to decide the precise scope of vulnerability for the purposes of s 21A (2)(l). The applicant's submission in this regard, if accepted, would result in an unduly narrow interpretation of the provision. The legislature has seen fit to provide nothing more than examples of vulnerability which are those commonly occurring in the course of the commission of various criminal offences. However the categories remain open and permit of many circumstances which might well satisfy the criteria of vulnerability. 21 In any event, there is no basis for asserting that his Honour fell into error, particularly in the light of the closing words to s 21A (1): " The matters referred in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law." 22 It is a well established sentencing principle, emphasised in the decision of Ranse NSW CCA unrep 8th August 1994, that offences involving direct attacks upon the security of persons and their property as they go about their lawful business are regarded as serious breaches of the peace. 23 The judgment of Gleeson CJ (as he then was) in Ranse has been affirmed many times: "One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others." 24 In the light of such a basic principle of the criminal law, it was entirely appropriate for his Honour to take the approach that he did. Both of the victims were relatively young men whose reliance upon public transport late in the evening placed each of them in a position of some vulnerability which the applicant exploited. His Honour did no more than recognise that the applicant had carefully chosen his target. There is no merit in this ground of appeal. 25 Ground 3 of the appeal relies upon a passage set out at page 15 of the Remarks on Sentence: " The applicant entered a plea of guilty on 29 May 2003 at Parramatta Local Court. I am prepared to accept for the purpose of the question of an appropriate penalty to be imposed that there should be a reduction of about 20% for the plea of guilty. There should also be a reduction based on the fact that he, although the Crown case was strong, has entered a plea, and I take into account the utilitarian value thereof, whilst reminding myself of the views expressed by the Court of Criminal Appeal in R v Scott. " ( emphasis added ). 26 The applicant accepts for the purposes of this ground of the appeal that his Honour's reference to the decision of Scott is a reference to R v Scott [2003] NSW CCA 286. In the course of that decision his Honour Justice Howie was at pains to point out that the "evaluation of the discount on the utilitarian basis has no regard to the strength of the Crown case, does not reflect remorse or contrition and is not concerned with any other factor relevant to sentence such as the rehabilitation of the offender." The applicant submits that in spite of His Honour's reference to Scott his Honour has fallen into the error identified by his Honour Justice Howie in that case: see also R v Carter [2001] NSW CCA 245, R v Sutton [2004] NSW CCA 255 and R v Tran [2004] NSW CCA 366. 27 A close reading of his Honour's remarks in the passage set out above do not support the applicant's submission. His Honour first refers to the fact of the plea of guilty and moves to assess a reduction of "about" 20% for the plea of guilty. His Honour then goes on to express the need for a further reduction (by reference to the word "also") referable to the applicant's contrition. It is in that context that his Honour refers to the strength of the Crown case. The reference, immediately following, to the utilitarian value of the plea is one which is made in the context of the decision in Scott. Whilst his Honour's form of expression may have been less than ideal, a proper construction of his Honour's remarks disclose that his Honour did not confuse the discount for the plea of guilty based on the utilitarian value of that plea with the further allowance to be made for the expression of contrition and remorse, as evidenced by the plea, albeit ain the face of a strong Crown case. There can be no other explanation for his Honour's reference to the decision of Scott other than that his Honour was mindful of the need to separate those two distinct bases for a discount in the course of the formulation of an appropriate sentence. 28 True it is that his Honour does not identify the composite discount which is ultimately applied to the sentence imposed upon the applicant. However a sensible reading of his Honour's ROS would lead to the view that his Honour did in fact apply a discount in excess of 20%, which was a composite discount well within his Honour's sentencing discretion. 29 The applicant has established error in the sentencing process. Notwithstanding that error, Section 6 (3) of the Criminal Appeal Act, 1912 provides that the Court shall re-sentence, only if it is of the opinion that some other sentence is warranted in law. 30 Was the sentence manifestly excessive? It has already been noted that the offence the subject of the sentence was aggravated by the fact of its commission during the currency of a bond and aggravated by a further offence of an almost identical nature on a Form 1, committed approximately one week earlier. These are features which were recognised by the Court in R v Henry & ors [1999] NSWCCA 111 as justifying a sentence above the "narrow range", which was identified as a starting point. 31 The offence was objectively serious for the reasons articulated above. The applicant was the principal aggressor, despite his attempts in the interview with police to cast himself in some lesser role. Whilst the guideline promulgated by the Court in Henry assumed a late plea of guilty, it also recognised that the significance of a plea of guilty may be limited by a strong Crown case. Such is the case here, in that the applicant's plea constituted acknowledgment of the inevitable. 32 The applicant's subjective circumstances are favourable but the principles of general deterrence, punishment and denunciation must find expression in the non-parole period and head sentence. 33 In my view no lesser sentence than that imposed was warranted in law. The sentence cannot be regarded as manifestly excessive. 34 I would make the following orders:- 35 Leave to appeal granted. 36 Appeal dismissed. 37 GROVE J: I agree. 38 BARR J: I also agree. 39 GROVE J: The orders of the Court therefore will be as proposed by Latham J. 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.