New South Wales Court of Criminal Appeal CITATION: Iese v Regina [2005] NSWCCA 418 HEARING DATE(S): 06/12/05 JUDGMENT DATE: 6 December 2005 JUDGMENT OF: Grove J at 41; Studdert J at 42; Whealy J at 2 DECISION: Application granted. Appeal dismissed. LEGISLATION CITED: Crimes Act 1900 R v Todd (1982) NSWLR 517 at 519-520 R Blanco (1999) 106 A Crim R 303 per Wood CJ at CL at para 16 R v Smith (1987) 44 SASR 587 at 589 CASES CITED: R v Bailey (1988) 35 A Crim R 458 R v McDonald (1988) 38 A Crim R 470 R v Miketic NSWCCA 425 per Wood CJ at CL at para 13 R v De Simoni (1981) 147 CLR 383 PARTIES: Dors (Dawers) Iese v Regina FILE NUMBER(S): CCA 2005/1218CCAP Mr H. Dhanji - Applicant COUNSEL: J. Dwyer - Respondent Steve O'Connor - Legal Adi Commission SOLICITORS: S. Kavanagh - Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT JUDICIAL OFFICER: Gibson ADCJ IN THE COURT OF CRIMINAL APPEAL 2005/1218 GROVE J STUDDERTJ WHEALY J TUESDAY 6 December 2005 Dors (Dawers) IESE v REGINA Judgment 1 GROVE J: The Court is in a position to give judgment and I will ask Whealy J to deliver the first judgment. 2 WHEALY J: This is an application for leave to appeal against severity of sentence. The applicant pleaded guilty on the first day of trial in the Sydney District Court to one count of robbery contrary to s 94 of the Crimes Act 1900, one count of attempt aggravated robbery contrary to s 95(1)/344A Crimes Act 1900. 3 The applicant also asked the sentencing judge, whom I shall refer to as the Judge, to take into account a further offence of aggravated robbery with corporal violence contrary to s 95(1) Crimes Act 1900 on a Form 1 document. 4 The maximum penalty for the offence of robbery under s 94 of the Crimes Act is imprisonment for fourteen years. The maximum penalty for the offence of attempt aggravated robbery under s 95(1) is imprisonment for 20 years. 5 On 13 December 2004 the Judge convicted the applicant and sentenced him as follows: - (1) In relation to s 94 robbery offence (taking into account the Form 1 offence) to: Imprisonment for a non-parole period of fifteen months to commence on 10 December 2004 and to expire on 9 March 2006; and to a total period of two years and six months to commence 10 December 2004 and expire 9 June 2007. (2) In relation to the s 95(1) attempt aggravated robbery offence to: Imprisonment for a fixed term of nine months to commence 10 December 2004 and expire on 9 September 2005. 6 The facts may be stated simply. Counts 1 and 2 arose out of a single incident. In the early hours of 25 April 2002 the applicant accosted a young man who had alighted from the train at Berala Station and who was awaiting his father. The victim was robbed of his mobile phone (count 1). Credit cards were extracted from the victim, who was then detained and escorted by the applicant and two other persons to a nearby ATM machine. On the way, the victim's silver neck chain was removed. The applicant threatened to stab the victim to facilitate entry of the PIN numbers, although he was not in possession of any weapon. Attempts to obtain the money from the ATM failed. Shortly after, the victim managed to escape. The Form 1 offence was committed on 23 October 2002 when the applicant was on bail. It also involved the robbery of a mobile phone at a railway station. The applicant punched the victim who was known to him in a domestic context. 7 The applicant presented a reasonably strong subjective case during the sentencing hearing. He had been eighteen years old at the time of the offences committed in April 2002. He had no history of prior convictions. There was a report from Dr Susan Hayes, a clinical psychologist. The report stated that the applicant had a mild intellectual disability and that, in this regard, he was said to be functioning at a lower level than 99.8% of the population. 8 According to Dr Hayes, the applicant described the offences in much the same terms as they had been presented on the police facts sheets. In relation to the incident at the railway station, the applicant said he had been influenced by a friend of his at the time who was 34, whereas he was then seventeen. The applicant told the psychologist "he was hanging around with the wrong guy". He claimed that his co-accused had the idea to perform the robbery and that he "went along with it". 9 The report otherwise showed that the applicant had expressed remorse in relation to the commission of the various offences. He had not been in any trouble since the Form 1 offence. Dr Hayes thought that it was a good sign that the applicant had managed to keep out of trouble for nearly two years and that he had been under increased supervision from his family. Provided that he remained under close supervision, she thought that he would be a low risk for further offending in the future. 10 In addition to the psychological report, there were two references provided on behalf of the applicant. The applicant himself gave evidence on sentence. He said he was influenced to commit the offence by an older man Eddy Sua. He said that he was walking with Eddy who said to him : - "Do you want to make some quick money" … "its easy all you have to do is just go over there see the guy at the ATM, all you have to do is go up to him and tell him, take him to the ATM and threaten him, just pretend you've got a knife and say you are going to stab him and you want some money." 11 It appears the applicant told this as well to the probation officer (see pre-sentence report 10 December 2004). The applicant gave evidence that since committing the offences he had been attending church and involved in church activities. He was in full-time employment as a tyre fitter. The two references that I have mentioned were in fact from the chaplain and his employer. The applicant again expressed remorse for the offence. Grounds of appeal Ground 1 12 It is submitted on behalf of the applicant that the Judge erred when sentencing the applicant in relation to count 1 by taking into account as an aggravating factor that the offence was committed in company. 13 The Crown puts this matter in issue. It submits that on a fair reading of his Honour's judgment this is not what happened. Rather, the Crown submits, that this was a matter in which the applicant sought to mitigate his role on the basis of the influence exerted upon him by his companion. The Crown submits that it was inevitable in those circumstances that there would be some acknowledgement of the fact that the offence was committed in company. The Crown submitted that the Judge was merely reciting a fact that was not in dispute and did not specifically state that he was taking it into account as an aggravating factor. With all due respect to the Crown's submissions, it seems to me to be impossible to conclude otherwise than that his Honour did treat this matter as an aggravating factor. The submissions on sentence are transcribed. At page 16 the following appears: - "FLEETON: This is a robbery simpliciter and aggravated robbery. HIS HONOUR: Aggravated robbery in company wasn't it? FLEETON: Aggravated robbery was the -- HIS HONOUR: But he was also in company wasn't he? FLEETON: That is correct. So I'm not suggesting--- HIS HONOUR: And the person who was robbed was told that he was armed. FLEETON: Correct. HIS HONOUR: He didn't tell him that he was only having a joke with him did he?" 14 Again the Crown submission appears at transcript page 20. See lines 25 to 30. It is quite apparent from this submission that it was put to the Judge that the offence was committed while in company. 15 In his remarks on sentence, 1.3, the sentencing judge said: - "The facts became Exhibit "C" and they are all too familiar in that the victim was coming home at about 12.30 at night, got off a train, and was therein upon set upon by the prisoner and at least one, if not two others, and had his phone taken from him." 16 Later at 3.8 of the remarks on sentence the Judge said: - "The robbery, as I see it, and the attempt that I referred to in the indictment were committed whilst in company, and also he indicated to the person that he was robbing at the time that he was armed." 17 These last remarks appear in that part of the remarks on sentence where his Honour is assessing the aggravating and subjective features of the offences. 18 In my opinion the Judge erred by taking into account a matter, as an aggravating factor, which would have warranted the applicant's conviction with respect to a more serious offence, namely that of robbery in company contrary to s 97(1) of the Crimes Act. This is an error that flies in the face of the clear principles stated in R v De Simoni (1981) 147 CLR 383. It is clear the Judge did not confine his remarks to the offence in the second count. 19 I would find this ground established. Ground 2 20 It is submitted that the sentencing judge erred in failing to have proper regard to the delay between the commission of the offences and the sentencing of the applicant. 21 There was undoubtedly a delay in the present matter. The offences on the indictment were committed on 25 April 2002. The offence on the Form 1 was committed on 23 October 2002. The applicant was not sentenced until 13 December 2004 that is more than two years after the events on the Form 1. 22 The principles in relation to Ground 2 are reasonably clear although their application in any given case will require a degree of close analysis of the factual situation (R v Todd (1982) NSWLR 517 at 519-520; R v Blanco (1999) 106 A Crim R 303 per Wood CJ at CL at para 16). 23 In my opinion, however, no error has been demonstrated in relation to this ground. His Honour was aware of the delay and sought to obtain assistance from both the Crown and counsel for the applicant as to the reason for the delay. Neither side was really able to assist the trial judge and it appears possible that the fault simply lay with the "machinations of the process, the system" (T 18 line 30). The affidavit of Ms Ramsay and the chronology attached to it presented to the Court today suggest the applicant may have had the opportunity to pleas at an earlier time, although it was fairly conceded that it may well have been in the combination of this circumstance and the fault of the system itself that probably brought about the delay. 24 In my opinion, however, it could not be said that the delay acted in any way unfairly to the applicant, particularly in the assessment of his rehabilitation. The Judge was entitled to regard the commission of a further offence while the applicant was on bail as a serious matter. In addition, on the issue of discount for plea, it might be said that the Judge was unduly generous in allowing the applicant a discount of 20%. 25 The applicant, however, has relied upon one sentence in the remarks on sentence where the Judge had said: - "I cannot say he is unlikely to re-offend again, although it has been two years since the offences were committed, the two on the indictment, but in that time he has come and been charged with the offence concerning the railway station, so I cannot really say that he is unlikely to offend again." 26 It was in fact two years two months from the commission of the indictment offence until the plea was entered; and it was a further five months before the ultimate sentence. 27 I accept that his Honour might have expressed himself more accurately in working out the time frame mentioned in this sentence. The topic under discussion however was whether the breach while on bail threw into doubt the claim that the applicant would be unlikely to offend again. In the ultimate analysis, however, the Judge found that there were special circumstances because of the age of the applicant and his prospects of rehabilitation. 28 In those circumstances I do not consider that the sentencing judge fell into error in relation to this ground. Ground 3 29 The final ground of appeal asserts that the sentencing judge failed to have adequate regard to the applicant's intellectual disability. 30 I have set out the main points of the report of Dr Susan Hayes in the earlier part of these reasons. The critical point, it seems to me, arises from the submission that his Honour did not appropriately take into account that aspect of Dr Hayes' report that might be said to have been relevant to the applicant's culpability. It is true that at page 4 of the report the report states: - "He says that he was influenced by an older man at the time of the first offence. Given the fact that Mr Iese is mildly intellectually disabled and has difficulty foreseeing the long term consequences of his actions, it is highly likely that he was indeed influenced by somebody else." 31 Notwithstanding the submission, I am of the opinion that his Honour did not fall into error in relation to this aspect of the matter. It would, I believe, have been preferable for his Honour not to have entered the arena of attempting to assess the percentage comparison of the intellectual capacity of the applicant compared to others in the community, without the benefit of the presence of Dr Hayes. The report was tendered however and was objected to on the basis that Dr Hayes was not present and available for cross-examination. The Judge allowed the report to go into evidence and its utility and relevance became therefore, I consider, a matter of weight. But it was open to the Judge to assess the applicant in the witness box and to assess for himself the intellectual capacity of the applicant as, on one view I think he may have done. I am not satisfied that the mild intellectual disability of the applicant referred to by Dr Hayes warranted a finding of any lower degree of culpability than that which his Honour found. True it is that the applicant himself said that the method of extracting money from the victim was as had been suggested to him by Mr Sua; but the evidence did not really prohibit a finding that the applicant did not himself fully agree to go along with the proposal to obtain some money from the victim. 32 As I say, it may have been unwise for the Judge to have queried the assessment of the figures referred to by Dr Hayes in the report. On the other hand, I think his Honour was entitled to form the view he did as to the applicant's culpability and level of criminality in the project. This is to a degree borne out by the fact that the Form 1 offence was committed at a railway station and related to the robbery of a victim in relation to his mobile phone and that this was accompanied by some physical violence. It was not suggested in that case that the applicant's mild intellectual disability played any part in lessening his culpability on that occasion. It was open to the Judge to find it did not greatly lessen his culpability on the earlier occasion. 33 The second aspect of this ground of appeal is the submission that the matter of general deterrence should have played a reduced role in the sentencing process due to the applicant's intellectual handicap. 34 I am not satisfied that, at its highest, the applicant's mild level of disability prevented the sentencing judge from expressing the opinion he did at 4.5 of the remarks on sentence: - "The Courts must, in cases such as this, pass sentences that indicate to the person involved and to other people that if they behave in the manner that he behaved towards ordinary honest persons who are going about their ordinary business as they are entitled to do, then they face the real prospect of going to gaol." 35 The relevant sentencing principles in this regard are well known being expressed for example in R v Smith (1987) 44 SASR 587 at 589; R v Bailey (1988) 35 A Crim R 458; R v McDonald (1988) 38 A Crim R 470 and more recently in R v Miketic NSWCCA 425 per Wood CJ at CL at para 13. 36 So far as the statement by Dr Hayes that the applicant functioned at a level lower than 99.8% of the population is concerned, I agree with the Crown's submission that this of itself warranted little weight in the sentencing process. It did not go to the extent of culpability as I see it. Nor did it bear upon the need to emphasise the need for general deterrence in the sentencing process of the applicant. The Judge did accept that the applicant had a mild intellectual disability and took that factor into account. In my opinion, the Judge was entitled to take the view that the applicant's level of disability did not require that aspects of general deterrence be overlooked or, for that matter, reduced. Should the Court intervene? 37 I have found that the Judge erred in relation to ground 1. 38 The sentences imposed by the Judge have been set out by me at the commencement of these reasons. Mr Dhanji very fairly, I think, conceded that certainly at first blush the sentences were not such as to raise the judicial eyebrow. To my mind, the applicant was treated relatively leniently. He received a 20% discount for his plea and there was a finding of special circumstances in his favour. The non-parole period of fifteen months was a generous recognition of those special circumstances. The fact is that the applicant will be entitled to release on parole on 9 March 2006. I have had regard to the material received on the usual basis. In general, it supports the Judge's findings as to special circumstances and the prospects of rehabilitation. It also supports the existence of the applicant's mild intellectual disability. 39 As I understand the situation, the applicant must fail in this application unless he can show that some sentence other than that imposed was warranted and should have been imposed. In my opinion, in all the circumstances, a lesser sentence than that imposed by the Judge would not have reflected the objective criminality of the offences nor appropriately would it have reflected the need for general deterrence in respect of offences of this kind. 40 I propose that the application be granted but that the appeal be dismissed. 41 GROVE J: I agree. 42 STUDDERT J: I also agree. 43 GROVE J: The order of the Court will be as proposed by Whealy 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.