Regina v Nasher [2005] NSWCCA 238

New South Wales Court of Criminal Appeal

CITATION: Regina v Nasher [2005] NSWCCA 238

HEARING DATE(S): 28 June 2005

JUDGMENT DATE: 28 June 2005

JUDGMENT OF: Grove J at 1; Hoeben J at 23; Hall J at 24

DECISION: APPEAL ALLOWED; APPELLANT RESENTENCED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - AMBIGUITY AS TO WHETHER PRE-SENTENCE CUSTODY TAKEN INTO ACCOUNT - FINDING BY SENTENCING JUDGE OF POWERFUL SUBJECTIVE CASE - PLEA OF GUILTY ON SCHEDULED TRIAL DATE - COORDINATION OF FINDINGS AND ULTIMATE IMPOSITION

R v Howard [2001] NSWCCA 309 CASES CITED: R v McHugh 1985 1 NSWLR 588

PARTIES: Regina v Mohamed Nasher

FILE NUMBER(S): CCA 2005/480

G. Rowling (Crown) COUNSEL: A. Francis (Applicant)

S. Kavanagh (DPP) SOLICITORS: S. O'Connor (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0509

LOWER COURT JUDICIAL OFFICER: English DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/480

GROVE J HOEBEN J HALL J

Tuesday 28 June 2005 REGINA v MOHAMED NASHER JUDGMENT 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by English DCJ at Campbelltown District Court. 2 On 7 October 2003, the scheduled trial date, the applicant pleaded guilty to a count charging robbery whilst inflicting grievous bodily harm which offence carries a prescribed maximum penalty of twenty five years imprisonment. The offence had occurred on 22 November 2002. 3 Her Honour sentenced the applicant to imprisonment consisting of a non parole period of three years commencing on 30 June 2004 with a total term of six years. 4 The applicant was born on 14 May 1984 and was therefore aged eighteen years when he committed the offence. 5 The victim and the applicant were known to each other, having attended school together for a time. At 10 pm on the night in question the applicant and three other young men were sitting in a car parked near a shopping complex at Glebe. As a matter of coincidence the victim, who had left a school formal, drove a car and parked it behind that in which the applicant was seated. The victim was accompanied by a male passenger. The applicant was out of the car and the victim recognized him and he approached to greet him. Other males then alighted from the vehicle from which the applicant came. The victim's friend, correctly anticipating that there would be trouble of some sort, fled. 6 In evidence given in the sentencing proceedings the applicant confirmed that at a time when he struck the victim he believed that the other persons with him were intending to rob him. There were several exchanges of blows initiated by the applicant, joined in by his companions and the subject of retaliation in self defence by the victim. The grievous bodily harm suffered by the victim consisted of fractures of the jaw which required pinning. Her Honour found that it was a blow struck by the applicant which caused that damage. 7 The victim was wearing jewellery and the indictment specified that he was robbed of a gold bracelet, gold chain and necklace, a Seiko wristwatch and $100 in currency. The lastmentioned was taken by the applicant. There were other items which were taken from the victim, examined by the offenders who rejected them and returned them to him. 8 The applicant has not identified his co-offenders nor have their identities been otherwise established. He says that he would be in fear of them. Although he acknowledged his belief in their intention to commit the robbery in which he joined, his explanation for the attack upon the victim was that he was jealous of the victim's apparent success in having material possessions such as the jewellery display which he wore, in contrast with his own, as he perceived them, relatively impoverished circumstances. There was evidence that his mother had been the victim of violence from his father and that consequent upon their separation he, as the eldest of eight children, was required to contribute to the support, particularly of his siblings, despite his modest means. There was evidence that he made such contributions. 9 Two grounds of appeal were advanced by counsel on behalf of the applicant. It is convenient to deal first with ground 2 which complains that her Honour failed to demonstrably take into account the pre sentence custody. It is common ground that the applicant was kept in custody for fifty two days prior to being released on bail. Her Honour dated the sentence from 30 June 2004 which was the date upon which she remanded him into custody during the sentencing proceedings which took place on various days between the plea of guilty on 7 October 2003 and the ultimate imposition of sentence on 20 August 2004. Upon announcement of the sentence and the date of commencement (as 30 June 2004) counsel for the applicant made an enquiry about "the two months spent initially in custody and also the fifty days that he has been on remand" and her Honour responded "Yes, I did take that into account but I consider that the three years to have been adjusted to take those matters into account." 10 It appears that counsel was referring to two different periods which coincidentally were almost the same. As I have noted, the period of pre sentence custody prior to the entry of bail was fifty two days whereas the time in custody since remand by her Honour until the date of sentence was fifty days. 11 It has long been said to be desirable for a judge to commence a sentence so as to take into account a period of pre sentence custody referrable exclusively to the matter then the subject of imposition: R v McHugh 1985 1 NSWLR 588. On occasion this Court has upheld a ground of appeal that the taking into account of pre sentence custody of that nature has not been demonstrated: R v Howard [2001] NSWCCA 309. 12 Whilst I do not doubt the integrity in her Honour's statement above referenced, it is not clear that she had both the periods of fifty and fifty two days in mind. As well, as above noted, the plea of guilty was offered on the scheduled first day of trial and her Honour expressly indicated that she was reducing a sentence otherwise assessed by 18 percent in order to reflect the utilitarian value of that plea. Taking into account the ambiguity concerning the reflection of the applicant's service of pre sentence custody and that "discount" it is difficult to perceive what initial assessment led to a final imposition of a rounded total term of six years imprisonment or the rounded three years mentioned by her Honour. 13 I consider that ground 2 is made out. 14 Ground 1 asserts that the judge erred in the manner in which she took into account the applicant's subjective case. In her remarks on sentence she described, no doubt by way of contrast with the objective seriousness of the offence, "powerful subjective circumstances raised during the sentencing proceeding". Her Honour immediately went on to say that nothing short of a full time custodial sentence would satisfy the requirements of general and specific deterrence. I see no error in that conclusion. There were, as she commented, powerful subjective circumstances. 15 There was however an error in her notation of subjective matters, in particular in her recitation of what was said to be the juvenile record of the applicant including matters of affray and larceny, but, as the particulars of trial demonstrate there were no findings of guilt in respect of such offences and the charges were "filed in court." 16 Having regard to the applicant's success in establishing the complaint in ground 2, the issue of resentence becomes a live matter in this Court. 17 Her Honour noted the youth of the applicant and that he had given evidence that he had severed his ties with the other offenders since the incident although she did not say whether she accepted that evidence or not. At the sentencing proceedings there was some investigation of information concerning the applicant's juvenile record (which was other than clear) but it was eventually stated by the Crown that enquiry was unable to provide a date upon which a recognizance was granted in the Children's Court and the Crown expressly stated that it did not rely at all upon the applicant being the subject of a recognizance to be of good behaviour at the time of the offence. Her Honour said in response to the Crown's concession "My finding will be that he was not on conditional liberty at the time in those circumstances". 18 She did however find that he was on conditional liberty but this related to another circumstance, namely that he was on bail at the time in respect of other charges. It was common ground that the applicant was in due course, and prior to being sentenced for these matters, in fact found not guilty in respect of those particular matters. However that does not alter the situation that he was on conditional liberty on bail at the relevant time. 19 For the purposes of resentence, a combination of factors can be noted. The applicant was aged eighteen at the time of offence; his prior record was relatively minor; he had been the victim of violent and degrading sexual assaults whilst aged between eight and ten years; he had been brought to Australia at age eleven and was put into a school at a time where he could not speak English and had a very difficult time in his school years which he described in his evidence; he had worked as a panel beater and/or a spray painter consistently since leaving school except of course when in custody and I have mentioned his contribution towards the family after the break up between his mother and father. Her Honour found that he had good prospects of rehabilitation. It is not necessary to recite all the detail of what her Honour accurately categorized as a powerful subjective case. For the purpose of resentence the Court has been provided with two affidavits, one from the applicant himself and one from Ms Jocelyn Burdon, and these establish that he is making good use of his time in custody. 20 There were discrepancies between what the applicant said and what was reported in a pre sentence report but he claimed that he had not formed a good rapport with the probation officer concerned. On the other hand he had seen a psychologist Miss Collins, and it was to her, indeed, that he first revealed the history of abuse as a child in Lebanon. He described the offender in his evidence as a stranger, whom he estimated about the age of nineteen by reason of that person's beard. He had never revealed these matters to his parents and indeed requested Miss Collins not to pass that information onto them. Miss Collins thought that the applicant was clearly depressed. She noted from what he had said to her some suicidal ideation. She thought he should have treatment for his current symptoms. 21 Whilst I do not in any way seek to diminish the seriousness of the offence, it is a curious circumstance that as the applicant and the victim were known to each other, the applicant could not have expected that he could not be identified as at least one of the perpetrators. Whilst, as I have said, I would endorse her Honour's finding that this offence necessarily had to be met with a period of full time custody, I consider that, having regard to the applicant's age, the subjective matters and the finding of good prospects of rehabilitation, a lesser sentence would be appropriate in all the circumstances. Like her Honour I would find there were special circumstances justifying departure from the statutory formula concerning the relationship between total sentence and non parole period. 22 I propose the following orders: (1) Application for leave to appeal against sentence granted. (2) Appeal allowed, the sentence imposed in the District Court quashed and in lieu thereof the applicant be sentenced to imprisonment consisting of a non parole period of two years commencing on 19 May 2004 and expiring on 18 May 2006 with a total term of four years imprisonment commencing on 19 May 2004. (3) The earliest date for eligibility for parole specified as 18 May 2006. 23 HOEBEN J: I agree. 24 HALL J: I agree. 25 GROVE J: The orders of the Court will be as I have proposed. **********