New South Wales Court of Criminal Appeal CITATION: Regina v Naji [2007] NSWCCA 198 HEARING DATE(S): 29 June 2007 JUDGMENT DATE: 29 June 2007 JUDGMENT OF: Spigelman CJ at 24, 26; James J at 25; Hislop J at 1 DECISION: 1. Allow the appeal; 2. Quash the sentences; 3. As to the first offence, sentence the respondent to imprisonment for a non-parole period of two years to commence on 29 June 2006 and expire on 28 June 2008 and a balance of term of two years to commence on 29 June 2008 and expire on 28 June 2010; 4. As to the second offence, sentence the respondent to imprisonment for a non-parole period of two years to commence on 29 June 2006 and expire on 28 June 2008 and a balance of term of two years to commence on 29 June 2008 and expire on 28 June 2010. The earliest date on which the respondent will be eligible for release to parole is 28 June 2008. CATCHWORDS: Criminal law - Sentencing - Crown appeal - Sentence manifestly inadequate - Henry sentencing principles. LEGISLATION CITED: Crimes Act 1900 - 97 Crimes (Sentencing Procedure) Act 1999 - s 12 R v Henry (1999) 46 NSWLR 346 R v Pearce (1998) 194 CLR 610 CASES CITED: R v Wall [2002] NSWCCA 42 R v Whyte (2002) 55 NSWLR 252 Regina v Zamagias [2002] NSWCCA 17. PARTIES: Appellant - Regina Respondent - Ibrahim Naji FILE NUMBER(S): CCA 2007/580 COUNSEL: Appellant - Ms V. Lydiard Respondent - Mr J. Korn SOLICITORS: Appellant - Director of Public Prosecutions (New South Wales) Respondent - Randle Lawyers LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0808 LOWER COURT JUDICIAL OFFICER: Geraghty DCJ LOWER COURT DATE OF DECISION: 16 February 2007 - 1 - IN THE COURT OF CRIMINAL APPEAL 2007/580 SPIGELMAN CJ JAMES J HISLOP J 29 June 2007 Regina v Ibrahim NAJI Judgment 1 HISLOP J: The respondent pleaded guilty to two offences of robbery whilst armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for such an offence is twenty years imprisonment. There is no standard non-parole period for this offence. 2 On 16 February 2007 the respondent was sentenced for those offences in the District Court to a total period of two years imprisonment to commence on 16 February 2007 and to expire on 15 February 2009. His sentence was suspended pursuant to the Crimes (Sentencing Procedure) Act 1999 s 12. 3 In sentencing the respondent his Honour, the sentencing judge, took into consideration that the respondent had been in custody following his arrest on 14 April 2006 to the date of sentence. 4 The appellant has appealed against sentence on the ground that it is manifestly inadequate. 5 His Honour found the facts of the offences were: In the early hours of the morning of Thursday 16 March 2006 [the respondent] entered a day/night convenience store in Brighton holding a pair of black handled metal blade scissors and held up a twenty-six year old sales assistant who was stocking the shelves. He punched the victim in the stomach and threatened him, "take out all your money or I'll kill you". He removed approximately $250 from the cash drawer, punched the victim in the stomach with a closed fist and demanded that he not call the police or "I'll kill you". Ten minutes later on the same morning he entered a 7-Eleven convenience store at Sans Souci, again armed with the same bladed scissors. He held up a twenty-four year old console operator who was seated behind the counter. He pressed the bladed scissors against the kidney area of this victim while pulling him off the chair by the collar of his shirt and demanded that he open the till. He stole approximately $500, holding the blade of the scissors at the victim's neck. Again he demanded that he not call the police or "I'll kill you". 6 The respondent is a single man born on 16 May 1984. At the time of the offences he had a substantial drug problem. He had a previous conviction for steal from person in respect of which he had been placed on a twelve month bond which was in force at the time of the subject offences. 7 The sentencing judge in his remarks on sentence said: "The two offences are very serious. This can be gauged from the maximum period of imprisonment which such an offence attracts. I take into consideration that the offence involved some violence and some threatened violence in addition to having a weapon (t his is part of the offence itself , so I do not take that into consideration ) but I do take account of the fact that there was some actual violence and some threatened violence. I take into consideration also that this offence was committed while [ the respondent ] w as on conditional liberty." 8 His Honour did not refer in his remarks on sentence to the guideline judgment in R v Henry (1999) 46 NSWLR 346 in which this court identified a category of armed robbery case under s 97 of the Crimes Act which was sufficiently common for the purpose of determining a guideline judgment. The guideline judgment was four to five years imprisonment for offences of this type. The characteristics of the present case were similar to those in the guideline judgment. His Honour did not impose individual sentences in respect of each offence. 9 His Honour had in evidence before him affidavits of the respondent's mother, elder brother and a neighbour. These affirmed the respondent had been a good son and neighbour, honest, kind and helpful, until he had become involved in drugs. As a consequence of that involvement he ceased working and lived by night and slept by day. The family had sent him back to Lebanon and hoped that a period of time in the army would "knock some sense" into the respondent. For some months following his return to Australia it appeared that he had overcome his problems but he then relapsed and ultimately was arrested following the subject offences. As previously mentioned, he was imprisoned from the date of arrest to the date of sentence. Initially during his imprisonment he "continued to want drugs" but as time progressed he "returned to normal" and wanted to do the right thing. His Honour was greatly impressed by this evidence particularly that of the neighbour. 10 His Honour was also assisted by Probation and Parole reports which concluded the respondent was suitable for medium level intervention by the Service "commensurate with the assessed risk" and reports from the treating psychiatrist, Dr Roberts, who had set out a treatment regime. 11 His Honour said in respect of mitigating factors: "In mitigation it seems to me that I do not have any evidence that the offence caused injury or lasting substantial emotional harm. It was not a planned or organised criminal activity since [the respondent] was at all times under surveillance. It was an act of desperation it seemed to me but an affront to peaceful living in our community. I note that [the respondent] does not have any significant record of previous offences. There is only one other offence on his record, and until that time, on the evidence of his mother, his brother and the elderly gentleman in his vicinity, he was a person of good character. I find that he is unlikely to re-offend, that there are very good prospects of rehabilitation which spring mainly from the very generous support offered to him by his family and that he has shown remorse from these offences. I take into consideration also his plea of guilty. I consider that this was at the earliest available opportunity and should attract a full deduction of 25 per cent." 12 His Honour then concluded: "These are offences which can only be dealt with by a full time custodial sentence, there is no other alternative sentence available. Section 3A of the Sentencing Procedure Act advises me as to what considerations I should bring to bear in sentencing. Of course, there should be serious consideration given to general deterrence but in the light of this man's youthfulness and the support he has from his family and also what the family has said about the conversion which has taken place in gaol it seems to me that he has very good prospects of rehabilitation. I want to enhance those as much as possible." 13 At the conclusion of his remarks on sentence his Honour said to the respondent: "Mr Naji, your family has persuaded me, you haven't but your family has persuaded me to treat you in the way I have with an opportunity to change your life. Now it's up to you. No one can make you good but yourself. You've made mistakes. We can't be punished all our life if we want to change our life. You've got the opportunity but if you don't take it you'll be in gaol as a criminal." 14 The appellant submitted that his Honour had erred in failing to have regard to the guideline judgment in R v Henry and erred in not giving reasons for not doing so - see R v Whyte (2002) 55 NSWLR 252. It was submitted that the facts of these offences were similar to those in R v Henry save that the offences occurred whilst the respondent was on conditional liberty, the first offence involved actual violence and that there had been an early plea of guilty as distinct from the late plea in R v Henry. 15 It was submitted that the guideline principles in R v Henry should only be ignored in the event that there were exceptional circumstances which justified the departure from the imposition of a full time custodial sentence. There were no such exceptional circumstances present in this case. The sentence should have reflected the guideline judgment. 16 Additionally, the offences occurred at different times, at different places and involved different victims. His Honour had failed to sentence the respondent for each individual offence contrary to the requirements in R v Pearce (1998) 194 CLR 610 and had taken an incorrect approach in determining that a suspended sentence was appropriate - see Regina v Zamagias [2002] NSWCCA 17. The objective seriousness of the offences and the need for general deterrence required that a full time custodial sentence be imposed. 17 There is substance in each of the submissions made by the appellant. 18 Learned counsel for the respondent did not dispute that error had occurred during the sentencing process and that the respondent was afforded undue leniency in the sentence. 19 He submitted, however, that as the sentencing judge had concluded that the respondent was at the crossroads and had taken a chance on him which so far - see the affidavit of Carl Naji sworn 29 June 2007 - was justified this court should "stay its hand". 20 However, in my opinion the serious nature of the offences, the fact that actual violence was involved in the first offence, and that the offences occurred whilst the respondent was on conditional liberty mandate a term of imprisonment. However, I would take into account a discount for the plea of guilty and find special circumstances by reason of the matters to which his Honour had regard. I would also have regard to the constraints which apply to crown appeals - see R v Wall [2002] NSWCCA 42 at para 70. 21 The respondent is entitled to credit for the period in custody between 14 April 2006 and 16 February 2007. He is also entitled to some credit by reason of the fact he has been serving a suspended sentence since 16 February 2007 although this cannot be treated as equal to a custodial sentence. In the circumstances I propose that the sentence be backdated to 29 June 2006. 22 I would not distinguish in the sentences between the two offences notwithstanding that actual violence was occasioned in the first offence. As the offences occurred within ten minutes of each other and this is a crown appeal I would make the sentences concurrent. 23 I propose the following orders: 1. Allow the appeal. 2. Quash the sentences. 3. As to the first offence, sentence the respondent to imprisonment for a non-parole period of two years to commence on 29 June 2006 and expire on 28 June 2008 and a balance of term of two years to commence on 29 June 2008 and expire on 28 June 2010. 4. As to the second offence, sentence the respondent to imprisonment for a non-parole period of two years to commence on 29 June 2006 and expire on 28 June 2008 and a balance of term of two years to commence on 29 June 2008 and expire on 28 June 2010. The earliest date on which the respondent will be eligible for release to parole is 28 June 2008. 24 SPIGELMAN CJ: I agree. 25 JAMES J: I also agree. 26 SPIGELMAN CJ: The orders of the court are as indicated by Hislop 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.