New South Wales Court of Criminal Appeal CITATION: Regina v Fepuleai [2007] NSWCCA 325 HEARING DATE(S): 4 October 2007 JUDGMENT DATE: 27 November 2007 JUDGMENT OF: Hodgson JA at 1; Hislop J at 2; Latham J at 3 DECISION: 1. Appeal allowed; 2. The sentence imposed upon the respondent on 23 March 2007 is quashed; 3. In lieu, the respondent is to serve a non parole period of 18 months to commence 27 November 2007, expiring 26 May 2009, the balance of term being 18 months, expiring 26 November 2010. The respondent is to be released at the expiration of the non parole period. CATCHWORDS: Crown Appeal - assault with intent to rob whilst armed with a dangerous weapon - suspended sentence manifestly inadequate - - effective disregard of Henry guideline - plea not at an early opportunity - no true parity with juvenile co-offender - significance of medical condition to sentencing discretion. LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Henry & Ors (1999) 46 NSWLR 346 Regina v Fepuleai [2007] NSWCCA 286 R v Henry (1999) NSWLR 346 R v Gu [2006] NSWCCA 104 Gibbs v R [2007] NSWCCA 171 R v Douglas [2006] NSWCCA 94 R v Tran [2005] NSWCCA 35 CASES CITED: R v Govinden [1999] NSWCCA 118; 106 A Crim R 314 R v Colgan [1999] NSWCCA 292 R v Boney [2001] NSWCCA 432 R v Ryan ; R v McPherson [2006] NSWCCA 394 R v Hamied [2007] NSWCCA 151 R v Blackman & Walters [2001] NSWCCA 121 R v Griggs [2000] NSWCCA 33 R v Parsons & Poore [2002] NSWCCA 296 PARTIES: Regina - Applicant David Fepuleai - Respondent FILE NUMBER(S): CCA 2007/00003227 COUNSEL: M Hobart - Crown Applicant D Dalton - Respondent SOLICITORS: S Kavanagh - Solicitor of Public Prosecutions Ross Hill and Associates - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0687 LOWER COURT JUDICIAL OFFICER: Solomon DCJ LOWER COURT DATE OF DECISION: 23.3.07 IN THE COURT OF CRIMINAL APPEAL 2007/00003227 HODGSON JA HISLOP J LATHAM J 27 NOVEMBER 2007 REGINA v DAVID FEPULEAI Judgment 1 HODGSON JA : I agree with Latham J. 2 HISLOP J : I agree with Latham J. 3 LATHAM J : This is a Crown appeal against a suspended sentence of two years imposed upon the respondent by His Honour Judge Solomon (the Judge) on 23 March 2007, in respect of an offence of assault with intent to rob whilst armed with a dangerous weapon (s 97(2) Crimes Act 1900). The offence carries a maximum penalty of 25 years imprisonment. 4 The Judge fixed a non parole period of one year, with a balance of term of one year, before proceeding to suspension. The Crown takes issue with the asserted manifest inadequacy of the sentence, in addition to a number of errors said to have been committed in the course of the sentencing exercise. These particular errors are :- (i) Finding that the respondent was not involved in any substantial degree in the planning of the robbery. (ii) Failing to properly consider and apply the guideline judgment in R v Henry & Ors (1999) 46 NSWLR 346. (iii) Finding special circumstances where the factors underpinning that finding had already been taken into account (double counting). (iv) Allowing a significant discount for the plea of guilty where the plea had not been entered at the earliest opportunity. (v) Failing to have regard to relevant aggravating factors. (vi) Giving excessive weight to the respondent's medical condition. 5 It should be noted at the outset that there was no delay in instituting the Crown appeal. The matter was listed for hearing in this Court on 30 May 2007 but did not proceed on the application of the respondent's senior counsel. The reason for the adjournment was the need to obtain further medical evidence to support the respondent's account of his experience in custody whilst on remand. However, when that evidence was made available to the Court, it was determined that the evidence was not fresh and accordingly it was not admitted on the hearing of the appeal on 4 October 2007 : see Regina v Fepuleai [2007] NSWCCA 286. The respondent's senior counsel properly conceded that, in these circumstances, no reliance is placed upon such delay as has occurred for the purposes of the exercise of the Court's discretion to intervene, should the appeal succeed. The Offence 6 The circumstances surrounding the commission of the offence were the subject of an agreed statement of facts. Between 9:45am and 9:40pm on 16 February 2006, the respondent's mobile phone was used more than 20 times to contact three persons, namely Michael Maglis, Michael Tarazi and Mohammed Hamied. One of the messages sent by the respondent to Tarazi at 5:30pm asked Tarazi not to forget the beanie. A number of calls were also made, and text messages sent, to the respondent's phone by Maglis, indicating that they planned to meet up later that night. 7 At about 8 p.m. on Thursday 16 February 2006, the respondent met with his co-offenders, Michael Tarazi, Mohammed Hamied and two unidentified males at Punchbowl. Hamied drove the respondent and the other three men to Botany in his white Ford Falcon, and parked two streets south of the Sir Joseph Banks Hotel. 8 The respondent, Tarazi and the other two men left the car and went to the hotel. The respondent was wearing a black zippered jacket with a hood, blue jeans, a black beanie, white gloves and a white cloth wrapped around his face. He was carrying a black replica Smith and Wesson pistol. The co-offenders were also disguised, and armed with a screwdriver and a baseball bat. The four men entered the hotel at about 11 p.m., one swinging the baseball bat and the responded holding the replica pistol. 9 There were several employees and at least five patrons in the hotel at the time. The offenders yelled at them "Get down. Get on the floor." One of the offenders struck the cigarette machine with a baseball bat. That man yelled "Get on the floor. This is a robbery. Get on the floor." All of the patrons dropped to the floor except for an 82-year-old male. The respondent approached that person, pointing the replica pistol at him and said "Get to the ground." The male patron grabbed a bar stool to protect himself. An offender struck the stool with the baseball bat and yet another offender kicked the male patron, causing him to fall. 10 Someone called out "It's not a real gun" and the four offenders ran from the hotel. A security guard and a patron ran out of the hotel and followed the offenders. They were seen to run towards the parked vehicle. Hamied began driving the car slowly as the offenders ran towards it. They jumped into the vehicle and it drove away. One of the hotel patrons followed in his vehicle and recorded the car registration number. He followed the car to the gates of the car park of the International Terminal at Sydney Airport, and then to Mascot. Meanwhile, police were making their way along O'Riordan Street to Mascot in a fully marked police vehicle. On seeing the offenders' vehicle, police activated the in car video camera. They followed the offenders' vehicle to Alexandria where it stopped momentarily at a red light. 11 Other police vehicles joined the pursuit and ultimately the police lights and siren on a highway patrol vehicle were activated. At that point Hamied pulled over to the left and the respondent and the three co-offenders left the car and ran away. Hamied was directed to leave the vehicle and was arrested. 12 The respondent and his co-offenders were pursued on foot by police officers and by a caged police truck. The pursuit continued through a Caltex service station and along a number of streets before Tarazi tripped and fell and the respondent slowed to look in his direction. Police caught up with the respondent and Tarazi and both were arrested and handcuffed. The remaining two offenders were not apprehended. 13 The respondent participated in an interview at Mascot police station. He identified himself in the still photographs taken from the hotel security video as the man wearing the black "Everlast" jacket, white cloth covering his face and white gloves, holding the pistol. (The interview was not part of the material before the Judge on sentence.) Police recovered a plastic shopping bag, two white latex gloves, a black replica pistol, a grey woollen beanie, a white jacket and black "Everlast" jacket in the gutter behind a parked car in the street where Hamied's car came to a stop. 14 A search of Hamied's car following his arrest revealed a number of items of clothing consistent with those worn by the offenders, a Sydney roadmap, a baseball bat and a screwdriver. 15 This case was appropriate for the application of the guideline judgment in Henry, suggesting a sentence of at least four to five years. On any view of the facts, the offence was an extremely serious one. Objectively, it demonstrated a significant amount of pre-meditation. The provision of gloves, beanies and means of disguise, together with an armoury of weapons intended to either inflict or threaten serious harm, manifests a great deal more foresight and planning than many offences falling within the Henry guideline. This was a calculated robbery of a hotel in an inner city suburb, far from the respondent's and his co-offenders' homes in the Punchbowl area, late at night. In addition, the use of those weapons to terrorise staff and patrons at the hotel should not be discounted merely because the pistol was recognised as a replica. It is against this background that the Judge's sentencing remarks fall to be considered. The Remarks on Sentence 16 After noting that the respondent pleaded guilty on 24 November 2006, (three days before the date fixed for trial), the Judge related the agreed facts. Immediately thereafter, the Judge said :- The offence is a serious offence. The seriousness of the offence is reflected in the maximum sentence contained in the Crimes Act. A number of submissions have been made to me in relation to the offender's involvement in the robbery. I am satisfied that the offender was not involved in any substantial degree in the planning of the robbery. I am satisfied that the robbery was unsophisticated in that the getaway vehicle was actually owned by one of the co-offenders. I am further satisfied that the offender became involved in the robbery due to the fact of his association with persons of bad character and the fact that the offender was a follower in the exercise and not a leader. In so far as the objective seriousness of the offence, I place the objective seriousness beneath the middle of the range of objective seriousness. 17 This constituted the Judge's assessment of the objective gravity of the offence and the part the respondent played in it. The balance of the remarks were devoted to the respondent's subjective circumstances (two pages) and to considerations of parity (one page). The only mention of the guideline judgment of Henry is contained in the sentence "I accept the Crown's submission that the guideline judgment of R v Henry (1999) NSWLR 346 is relevant to these proceedings", immediately before sentence was passed. 18 The three findings set out above, namely, as to the degree of planning carried out by the respondent, the unsophisticated nature of the robbery and the respondent's role as a follower, deserve further attention. 19 The respondent did not give evidence. His case consisted of brief evidence from his mother, relating to the respondent's "breadwinner" role in the family and his professed contrition, a report from a clinical psychologist, and a report from a medical practitioner. A Pre Sentence Report (PSR) was tendered by the Crown. There was some support in the PSR and the psychological report for the contention that the respondent was not a leader in the commission of the offence. The PSR stated that the respondent spoke of being afraid of one of his co-offenders, "felt unable to remove himself from the situation for fear of reprisal, … did not know what they were going to do until he neared the scene of the offence [and] that the pistol and items of clothing were given to him whilst he was in the car." The psychological report did not contain these assertions, only that the respondent offered as an explanation for the offence that he "was in the wrong crowd". 20 It is difficult to reconcile the respondent's account to the Probation and Parole officer with the respondent's own reminder to Tarazi at 5:30pm about the beanie. Such an item of clothing could hardly have had a benign purpose in late summer in Sydney ; clearly, it was needed by the respondent as part of his disguise in anticipation of a robbery. It may be that he was ignorant of the precise target of the robbery, and it may be that he did not receive the pistol and some items of clothing until he was in the car, but those factors do not necessarily preclude a finding of planning on the part of each of the offenders, to varying degrees. 21 It is rare that precise quantifications can be made as to the extent to which each offender in a joint criminal enterprise contributes to the planning and execution of an offence. In my view, it matters not whether the respondent was involved in the planning of the offence to a substantial extent or to some extent. The fact that the respondent was a party to such a criminal enterprise is the essence of his liability. In any event, the assertions by the respondent to the Probation and Parole officer were just that. They were untested and of little weight. Moreover, despite the respondent's mother's evidence that she and the respondent had "numerous conversations" about the offence, there was nothing in her evidence to suggest that he had expressed such sentiments to her. 22 Notwithstanding that these findings may have been open to his Honour, they tend to divert attention from the objective features of the offence, in favour of attempting to understand the respondent's motivation for participating in it. The objective features of the offence, not the subjective case advanced by the respondent, are the focus of the enquiry into where the particular offence lies on the scale of objective seriousness. It is not sufficient to note the maximum penalty as an indication of the serious nature of the offence and then conclude that the objective gravity of the offence lies beneath the mid range, without explaining what features of the offence itself justify that conclusion, or how far below the mid-range the offence fell. The most that can be gleaned from that finding is that the offence warranted a nominal head sentence somewhere between one and twelve years imprisonment. 23 The Judge's description of the robbery as "unsophisticated", based solely on the use by Hamied of his own vehicle, disregards other significant aspects of the offence. It was not so unsophisticated that it had no reasonable prospects of success. The offenders had subdued the staff and patrons of the hotel when the pistol held by the respondent was recognised for what it was. Hamied was obviously instructed to park some distance from the hotel so that the chances of anyone recording the registration number were substantially reduced. The offenders did not count on a hotel patron pursuing them in another car. 24 Even accepting that the Judge was entitled to characterise the offence in that way, that factor alone could not significantly detract from the criminality inherent in assaulting a number of persons (including an elderly man) with the threat of violence, and actual violence, by the use of weapons and with the combined force of four young males. The respondent was directly and actively engaged in that assault ; it was he who threatened the 82 year old patron with the pistol. No mention was made in the remarks on sentence of this aspect of the respondent's criminality, apart from the recitation of the agreed facts. 25 The sentencing remarks then moved to a consideration of mitigating factors pursuant to s 21A(3) of the Crimes (Sentencing Procedure) Act 1999. The Judge said "in the first instance the offender pleaded guilty at an early opportunity. The offender is entitled to a significant discount having regard to the utilitarian benefit of his plea." It is not correct to categorise a plea of guilty three days before the date fixed for trial as a plea at an early opportunity. In the circumstances of this case, I would regard a discount of no more than 12% as appropriate, yet it seems that the Judge determined that a discount in excess of that was justified. 26 Next, the Judge noted that the respondent was 18 years and nine days of age at the time of the commission of the offence, that he had no significant criminal history and that he had not involved himself in any further criminal activity since the commission of the offence. This last-mentioned matter was of limited relevance given that slightly more than a year had elapsed since the offence and the respondent had been on bail for the majority of that time. True it is that the combination of these factors placed the respondent in the position of a first-time offender at a relatively young age facing a full-time custodial sentence, but that could not outweigh the need to mark the criminality of the respondent's conduct with an appropriately deterrent sentence. 27 The respondent's family circumstances were outlined. The respondent's father left the home when the respondent was 5 years of age, but the psychologist's report observed that the respondent maintained a close relationship with him. The respondent had always been in employment since leaving school at the age of 17, and despite his young age, he had progressed to a position of some responsibility on building sites. The respondent remained living at home with his mother and younger siblings. There was nothing exceptional or remarkable about these subjective circumstances. 28 Of critical importance to the Judge's decision to suspend the sentence of full time imprisonment (leaving to one side for the moment how his Honour arrived at a sentence of two years) was the respondent's medical condition and the sentence imposed upon the co-offender Tarazi in the Children's Court. On the subject of the medical condition, the Judge said :- The offender's medical condition is that of peri-anal bleeding. The condition is chronic. The offender was late in coming to court today having regard to the fact that he suffered an anal bleed on the way to court. The offender is on a waiting list at the Fairfield Hospital in order to have surgery for his condition. I have fears that if the offender was sentenced to a full-time custodial sentence that he would be at great risk in the prison system having regard to his age and his medical condition. Further, I have fears that the offender would not be able to be given appropriate medical treatment in the prison system. Further, I am concerned that if the offender's condition became public knowledge in the prison system that it would seriously disadvantage the offender. 29 The medical report in evidence before his Honour dated 20 March 2007 indicated that the respondent suffered from extensive perianal warts. Following the consultation on 21 February 2007, he was prescribed medication and placed on a waiting list for diathermy, namely, a treatment whereby heat is applied to the warts by means of an electric current. The report noted that "perianal warts are due to a virus which is transmitted usually during sexual intercourse, especially anal sex if it is in the perianal region. It cannot be eradicated but controlled by diathermy and creams and occasionally it can lead to cancers in perianal skin." 30 There was no evidence before his Honour that the respondent would not be able to receive appropriate medical treatment within the prison system. Nor was there any evidence of how the respondent would be disadvantaged if his condition became public knowledge whilst in custody. Experienced judges could not but be aware of the risk of sexual assault within the prison system, particularly where relatively young offenders are concerned. However, the maintenance of discipline and order in the gaols of this State is a matter for the officers of the Department of Corrective Services, employed in that capacity. The vulnerability of young prisoners does not generally justify refraining from imposing a full time custodial sentence, if such a sentence is otherwise appropriate, having regard to the objective and subjective circumstances : see R v Gu [2006] NSWCCA 104 at [32]. 31 The Judge then briefly referred to the psychologist's report, which found that the respondent did not suffer from any personality disorder or conduct disorder. The psychologist's opinion that the respondent was immature, with inadequate impulse control, was simply re-stated without indicating whether the Judge accepted or rejected that view. Similarly, the psychologist's assessment of the respondent as amenable to rehabilitation was repeated. The Judge then went on to find special circumstances, on the grounds of the respondent's youth and the lack of any significant criminal history. These were factors upon which the Judge had already placed considerable reliance when dealing with mitigation of the offence. 32 Turning to the question of parity, the Judge noted that Tarazi was two months younger than the respondent, and spent five weeks in custody prior to sentence, as opposed to the seven weeks served by the respondent whilst on remand. The Judge accepted that Tarazi pleaded guilty to an offence carrying a maximum penalty of 20 years imprisonment, an offence to which the respondent was able to plead at an earlier stage of the proceedings. The respondent, however, declined to do so. Tarazi had no criminal record and was sentenced to a control order for two years (the maximum penalty available to the Magistrate) with a non parole period of five weeks, backdated to the time when he came into custody. The Judge then went on to say :- I am of the view that to sentence this offender to a full-time custodial sentence would create within this offender a sense of grievance in light of the sentence imposed on the co-offender Tarazi. In addition to that, I have special regard to the offender's age and his medical condition in setting a sentence. I accept the Crown's submission that the guideline judgement of the Queen v Henry (1999) NSWLR 346 is relevant to these proceedings. I am of the view that a custodial sentence is required however I will, pursuant to s 12 suspend the custodial sentence. 33 With respect to his Honour, there could be no true parity where the co-offender was dealt with as a juvenile, thereby restricting the available sentencing options open to the Magistrate, and for an offence carrying a lesser maximum penalty. That said, it was nonetheless appropriate to have regard to the sentence imposed upon the co-offender as a relevant consideration : Gibbs v R [2007] NSWCCA 171; R v Douglas [2006] NSWCCA 94; R v Tran [2005] NSWCCA 35; R v Govinden [1999] NSWCCA 118; 106 A Crim R 314; R v Colgan [1999] NSWCCA 292. However, where a comparison with a sentence imposed upon such a co-offender would result in the imposition of a sentence disproportionate to the objective and subjective criminality of the offender, the co-offender's sentence has little or no effect upon the sentencing exercise : R v Boney [2001] NSWCCA 432. 34 This is a case, in my view, that falls squarely within that category. A sentence of two years imprisonment at first instance was wholly inadequate to reflect the criminality of this respondent. There could not have been any meaningful consideration given to the judgment in Henry, given that there were features of this offence, namely a degree of planning and the commission of the offence in company, that arguably elevated the penalty identified in Henry. A starting point of at least five years was in my view warranted, before the application of a 12 percent discount for the plea of guilty. The resulting sentence of four years and five months may have been appropriately reduced to a modest extent in view of the penalty meted out to Tarazi and to allow for pre-sentence custody, but it is difficult to appreciate how the Judge arrived at a sentence of only two years. 35 The Judge did not indicate what term of imprisonment was appropriate to the respondent's criminality. The Judge was required to go through the following steps, set out succinctly in R v Ryan ; R v McPherson [2006] NSWCCA 394 at [1]-[2] :- Before the sentencing judge could impose any sentence of imprisonment he was obliged to satisfy himself, having considered all possible alternatives, that no penalty other than imprisonment was warranted: Crimes (Sentencing Procedure) Act s5(1). Having so satisfied himself, the judge was next required to determine what the term of the sentence should be: R v Foster [2001] NSWCCA 215; R v Zamagias [2002] NSWCCA 17. That was the first step of a necessary two-step approach: R v Blackman and Walters [2001] NSW CCA 121; R v JCE (2000) 120 A Crim R 18. The determination of the term was to be made without regard to whether the sentence would be immediately served or to the manner in which it was to be served: R v Zamagias at [26]. …………………………………… One of the things the sentencing judge was required to consider was whether to suspend the sentence. However, there was no provision for the suspension of a sentence of more than two years: Crimes (Sentencing Procedure) Act s12. If the length of the sentence determined was too great to permit its suspension, it was not appropriate to shorten it to make it qualify for suspension: cf R v T Court of Criminal Appeal, New South Wales, 19 June 1995, unreported. 36 The Judge determined that a custodial sentence was warranted, but did not go through the required steps. Instead, the Judge moved immediately to suspension. 37 The Crown has made good its submission as to manifest inadequacy. In addition, I am satisfied that the Judge fell into error in respect of (ii) – (vi) set out at [4]. I turn to the question of the exercise of the Court's discretion not to intervene, notwithstanding manifest inadequacy, mindful of the restraint inherent in Crown appeals and of the fact that the respondent has been at large in the community since March this year. As I have already observed, that lapse of time is due to the conduct of the appeal by the respondent's legal representatives (a legitimate avenue of enquiry) and limited weight ought be placed upon it for that reason. However, I acknowledge that a return to custody eight months after the respondent was given a suspended sentence will occasion considerable distress and anxiety. 38 After careful consideration, I do not regard this matter as one appropriate to the exercise of the Court's discretion to refuse to intervene. The sentencing proceedings miscarried in that the most relevant authority of this Court, namely Henry, was in effect disregarded. There is also an issue of parity that arises in respect of the co-offender Hamied. Hamied was sentenced to three years imprisonment by Murrell SC DCJ for the same offence, one month after the respondent was sentenced. Her Honour fixed a non parole period of 18 months. 39 This Court declined to intervene on a Crown appeal against that sentence, although the Court acknowledged the sentence was a lenient one : R v Hamied [2007] NSWCCA 151. Hamied was 48 years of age at sentence, had suffered from depression since 1990, had no relevant criminal history and had performed significant community work in the Lakemba/Bankstown area. His subjective case was just as strong as the respondent's and his role in the commission of the offence was a lesser one. If the respondent's sentence is not corrected, Hamied would have, in my view, a justifiable sense of grievance. 40 I cannot accede to the submission made by senior counsel that something less than full-time custody would meet the circumstances of this case. It must be remembered that R v Blackman & Walters [2001] NSWCCA 121 was "a wholly exceptional case" (per Wood CJ at CL at [49]) where the delay between the offence and the prosecution of the offenders (almost 3 years) had produced quite significant rehabilitation. Moreover, both offenders in that case gave evidence against another co-offender. 41 Senior counsel for the respondent also relied upon R v Griggs [2000] NSWCCA 33, where the Court imposed a sentence of periodic detention on a successful Crown appeal for a like offence. The respondents in Griggs had received a recognizance at first instance. However, Griggs is of very limited guidance, given that all three members of the Court arrived at a different outcome. Simpson J would have dismissed the Crown appeal altogether in the exercise of the Court's discretion, Sully J determined that at the very least a sentence of periodic detention was called for, and Grove J would have imposed a full-time custodial sentence. Ultimately, Grove J agreed with the orders proposed by Sully J. 42 Similarly, in R v Parsons & Poore [2002] NSWCCA 296, Sully J would have intervened to impose full-time custodial sentences on the respondents, who had received periodic detention at first instance, were it not for the delay between sentence and the disposition of the appeals. One of the respondents had spent six months in full-time custody as at the date of judgment, owing to the revocation of his periodic detention order for non-attendance. These factors set this case apart from the present matter. 43 The sentence to be imposed will be at the very bottom of the available range of sentence and should not be taken as an appropriate sentence for this offence. I accept that the respondent has good prospects of rehabilitation and I am prepared to find special circumstances on the basis of the seven weeks pre-sentence custody, together with the fact that the success of the Crown appeal gives rise to a return to custody after a period of some 19 months. 44 In all of these circumstances, I propose the following orders :- 1. Appeal allowed. 2. The sentence imposed upon the respondent on 23 March 2007 is quashed. 3. In lieu, the respondent is to serve a non parole period of 18 months to commence 27 November 2007, expiring 26 May 2009, the balance of term being 18 months, expiring 26 November 2010. The respondent is to be released at the expiration of the non parole period. ********** 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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