New South Wales Court of Criminal Appeal CITATION: BOAKYE-YIADOM v. REGINA [2006] NSWCCA 400 HEARING DATE(S): Friday 8 December 2006 JUDGMENT DATE: 8 December 2006 JUDGMENT OF: McClellan CJ at CL at 21; Simpson J at 22; Hall J at 1 EX TEMPORE JUDGMENT DATE: 12/08/2006 DECISION: Application for leave to appeal granted; appeal dismissed. CATCHWORDS: APPEAL – severity of sentence – applicant appeared unrepresented – offence committed while applicant on bail – expression of remorse taken into account by sentencing judge – expression of regret on application – post-sentence remorse and willingness to apologise to victim not matters relevant to questions of error in the sentencing proceedings – no error demonstrated in sentencing proceedings. LEGISLATION CITED: Crimes Act 1900 (NSW) CASES CITED: Regina v. Henry & Ors (1999) 46 NSWLR 436 Regina v. Murchie (1999) 108 A. Crim. R. 482 PARTIES: Acheampong BOAKYE-YIADOM v. REGINA FILE NUMBER(S): CCA 2006/2149 COUNSEL: Applicant: In person Crown: D. Frearson, SC. SOLICITORS: Applicant: N/A Crown: S.E. O'Connor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0403 LOWER COURT JUDICIAL OFFICER: Sorby, DCJ. LOWER COURT DATE OF DECISION: 31 October 2005 IN THE COURT OF CRIMINAL APPEAL No. 2006/2149 McCLELLAN, CJ. at CL. SIMPSON, J. HALL, J. FRIDAY 8 DECEMBER 2006 ACHEAMPONG BOAKYE-YIADOM v. REGINA Judgment 1 HALL, J: The applicant, by notice dated 9 September 2006, seeks leave to appeal in respect of the sentence imposed in the District Court on 31 October 2005. 2 The applicant is unrepresented. In the notice for leave to appeal, drafted by the applicant himself, the grounds relied upon are stated to be:- "1. Sentence very harsh 2. Willingness to apologise to victim." 3 The applicant indicated in his Notice that he would rely upon submissions made in support of his application. 4 The applicant's date of birth is 24 September 1985. He was therefore 18 years of age at the date of the offence on 20 July 2004. The offence was robbery in company contrary to s.97(1) of the Crimes Act 1900 (NSW) following a judge alone trial. The offence carries a maximum penalty of 20 years imprisonment. 5 His Honour, Judge Sorby, at the Parramatta District Court on 31 October 2005, imposed a non-parole period of three years to date from 9 March 2005 concluding on 8 March 2008, with an additional term of two years, to expire on 8 March 2010. 6 The relevant facts of the matter are set out in the remarks on sentence. These have been summarised in the Crown's submissions on sentence in the following terms:- "2. … Briefly, at about 7.00 pm on 20 July 2004, the victim, Mohammad Islam, boarded a train at Revesby as did the applicant and his two companions. All entered the same carriage. Subsequently, at Sydenham, they were the only occupants of the carriage. The applicant then made eye contact with the victim and menaced him. During the incident, one of the applicant's companions produced a knife. Mr. Islam was robbed of his mobile phone and $400 in cash. The offenders left the train at Redfern. 3. The victim recognised the applicant a few weeks later at Kogarah railway station in the company of a police officer. In a subsequent ERISP, the applicant denied any involvement in the offence." 7 A pre-sentence report made by Angela Dertis dated 27 October 2005 was before the sentencing judge and marked as Exhibit 2 on sentence. 8 At the sentencing hearing, the Crown, in its submissions, observed that the offence was one committed on public transport and it was committed in breach of bail. 9 The sentencing judge, in his remarks on sentence and in referring to the objects of punishment, emphasised that general deterrence was an important aspect of the sentencing process. He also considered the relevant subjective factors in the applicant's favour. 10 The sentencing judge observed that the applicant had been born in Ghana and had come to Australia in 1993 with his father. At the age of 15, he ran away from home, following family problems, and lived on the streets. His Honour noted that he mixed with "the wrong sort of persons". 11 The applicant was, at some later time, reunited with his father and maintained a relationship with his sister. His Honour records that on release, he planned to reside with her. 12 His education had been limited, achieving only a School Certificate in 2002. His Honour observed that in prison the applicant, to his credit, had attended classes in numeracy and maths, and had passed tests in fine arts and hoped that his education would continue following release. 13 The remarks also record that the applicant had been a drug user since the age of 14 and that he claimed that he was under the influence of drugs when he committed the offence. The sentencing judge noted that, whilst this may explain his action, it could not excuse it. In prison, he has undergone a drug and alcohol course and his Honour noted, that according to the applicant, he had been drug free since his arrest, a period, as at the date of the sentence hearing, of some seven months and 22 days. 14 It was also noted at the time of sentence that the applicant had expressed, through his counsel, remorse, although he claimed that he had no actual memory of the event. I note the applicant in the document that he has lodged entitled "submissions in support of appeal" dated 10 September 2006 expresses remorse and apologies to the victim. He has, again today, by way of oral submissions, expressed his regret. The Crown observed in its written submissions that post-sentence remorse and a willingness to apologises to the victim are not matters relevant to the question of error in the sentencing proceedings. The Crown, however, did note that the judge clearly accepted that the applicant was remorseful. 15 The sentencing judge observed that the applicant had not previously served a custodial sentence and that, together with his rehabilitation prospects and his plans to continue rehabilitation, a finding of special circumstances should be made. 16 A number of matters were taken into account as mitigating circumstances, including the fact that the injury, loss and damage were not substantial, the fact that the applicant was only 18 years of age at the date of the offence and the fact that there was little planning involved in the robbery. 17 The aggravating circumstance was the fact that, at the time of the offence the applicant was on bail in respect of the offence of stealing from the person. 18 I am of the opinion that the Court should accept the submission made by the Crown to the effect that the sentence imposed is consistent with the indicative range in the guideline judgment, noting, as the Crown has, that that range relates to late pleas of guilty: Regina v. Henry & Ors (1999) 46 NSWLR 436. The Crown also noted that the guideline judgment has application to robbery in company offences as well as armed robbery: Regina v. Murchie (1999) 108 A. Crim. R. 482. 19 The sentence ultimately determined of a non-parole period of three years and a further parole period of two years, in my opinion, was within the range of sentences for an offence of the kind in question and in the circumstances in which it was committed. 20 I am of the opinion that no error has been demonstrated. Accordingly, the application for leave to appeal should be granted but the appeal should be dismissed. 21 McCLELLAN, CJ. at CL: I agree. 22 SIMPSON, J: I agree. 23 McCLELLAN, CJ. at CL: Accordingly, the orders of the court are as proposed by Justice Hall. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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