KHARE v THE QUEEN [2006] NSWCCA 388

New South Wales Court of Criminal Appeal

CITATION: KHARE v THE QUEEN [2006] NSWCCA 388

HEARING DATE(S): 18 October 2006

JUDGMENT DATE: 4 December 2006

JUDGMENT OF: Basten JA at 1; Hidden J at 29; Bell J at 30

DECISION: Application for leave to appeal dismissed.

CATCHWORDS: SENTENCING – Robbery in company – whether the custodial sentence should have been postponed until completion of drug rehabilitation program – whether there had been a pre-judgment of issue so as to demonstrate bias – whether sentencing guidance inflexibly applied – parity of sentence with co-offender.

LEGISLATION CITED: Crimes Act 1900 (NSW), s 97 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44

CASES CITED: Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497 R v Henry & Ors (1999) 46 NSWLR 346

PARTIES: Gary Savio Khare - Appellant Regina

FILE NUMBER(S): CCA 2006/2166

COUNSEL: A. Martin – Appellant P. Barrett – Respondent Crown

SOLICITORS: D. Samir – Appellant S. Kavanagh – Respondent Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 05/21/1155

LOWER COURT JUDICIAL OFFICER: Hughes DCJ

LOWER COURT DATE OF DECISION: 9 June 2005

IN THE COURT OF CRIMINAL APPEAL CCA 2166/2006 DC 05/21/1155

BASTEN JA HIDDEN J BELL J

4 December 2006 Gary Savio KHARE v THE QUEEN Judgment 1 BASTEN JA: Mr Khare ("the applicant") seeks leave to appeal against a sentence imposed on him in the District Court, for an offence of robbery in company, in contravention of s 97(1) of the Crimes Act 1900 (NSW). 2 The conduct which was the subject of the charge occurred on the evening of 15 April 2005. The applicant, with two other young men, was travelling on a train between Strathfield and Parramatta at about 10pm. The victim of the robbery was a university student travelling home at the end of the week. The applicant sat on a seat on the right hand side of the victim, one of his companions sat behind the victim and a third man sat directly opposite the victim. The man opposite asked the victim for money to make a phone call, which was refused. There was a brief conversation, after which the three young men got up and walked towards the front of the train. The victim fell asleep. However, as the train neared Seven Hills station, he awoke to find the applicant sitting directly opposite him, and another young man immediately behind him. The conversation which ensued was set out in the agreed statement of facts on sentence as follows: "The offender, Khare said to the victim, 'Where's your wallet? How 'bout you hand it over.' The victim did not reply and Khare then said, 'I'm not joking. I will kill you right here.' The victim said, 'There's no need for that.' The offender, Khare then made a grab for the victim's satchel bag that was sitting on the seat. At that point the co-offender King had his arm resting on the victim's right shoulder. Khare searched the bag and took an Apple I-Pod (20 gig), a mobile phone and a Penrith Panthers hat. The victim tried to grab his bag but the co-offender King held the victim down on the seat. The victim again grabbed at his bag and Khare dropped it. Both offenders then punched the victim in the head a number of times. The train approached Blacktown station at about 10.22pm. As the train was slowing down, the victim grabbed on to Khare's arm. Khare yelled out to King, 'Give us a hand bro'.' Both offenders again punched the victim in the head until the victim let go of Khare. The offenders and the victim got off the train and struggled on the platform. CCTV security cameras captured the struggle on the platform. The footage shows both offenders punching the victim. A third male is also seen to punch the victim. The offenders then ran off along the platform and got back on to the train. … After the victim was assaulted on the platform he went back onto the train and recovered his bag. He also found the sunglasses worn by Khare on the train. The victim got off the train and sat on the platform until the police arrived. As a result of the attack, the victim sustained swelling to his eyes, forehead and the left side of the face. His jaw was sore." 3 Mr King was apprehended about one hour later at the Doonside station, where he was arrested and participated in a recorded interview. On being searched, the victim's mobile phone was found in his underpants. 4 The applicant was not arrested until 13 May 2005, at which time he declined to be interviewed and declined to participate in an identification parade. He pleaded guilty belatedly, but prior to his trial, a fact which attracted a 15% reduction of an otherwise appropriate sentence. The sentencing judge took into account the principles of sentencing for such offences established in R v Henry & Ors (1999) 46 NSWLR 346. His Honour gave consideration to what he described as "the preponderance of mitigating factors" and the fact that a weapon was not used. He took the view that the offence called for a total period of three years and four months imprisonment, which he reduced by 15% because of the plea of guilty, leaving a sentence period of 34 months. His Honour further found that there were "special circumstances" for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which allowed for a variation of the statutory relationship between the non-parole period and the balance of the term. His Honour also allowed a backdating of two months as recognition of the four months prior to sentencing which the applicant had spent on a "Bridge program" run by the Salvation Army for people with drug or alcohol problems, to assist him overcome an addiction to methamphetamine. 5 The result was a non-parole period of 16 months backdated to commence on 3 April 2006 and continuing until 2 August 2007. A further term of 18 months was imposed to commence on 3 August 2007, ending on 2 February 2009, to be spent under supervision of the parole service. 6 It is not necessary to set out in detail the subjective circumstances of the applicant, which will be identified sufficiently below in relation to the challenges to the sentence imposed. 7 The principal ground of challenge to the sentence concerned the approach that his Honour took to the Bridge program being undertaken by the applicant at the time of his sentencing, but which was interrupted by the imposition of a custodial sentence. Although in part the submission tended to suggest that a non-custodial sentence would have been appropriate, counsel conceded that that proposition was not put to the sentencing judge. Thus the focus of the argument was that the sentencing should have been postponed to allow for completion of the Bridge program, at which time the Court would be in a better position to determine with confidence that the applicant had overcome his addiction. Indeed, it was submitted that remarks made by the trial judge during the hearing were so dismissive of the program as to demonstrate bias, in the sense of pre-judgment of an issue, rather than antipathy to the applicant himself. That approach, it was said, resulted in the sentencing judge not giving proper consideration to alternatives to full time custody, or the lack of drug rehabilitation programs in gaol. 8 A second ground, perhaps related to the first, asserted that his Honour had applied the guidance provided in Henry in an inflexible manner, without giving proper consideration to the applicant's individual circumstances. 9 There were two further arguments raised. First, it was contended that the applicant, was raised in a somewhat sheltered environment, living in the compound of the British High Commission in India. The applicant did not arrive in Australia until he was 17 years of age and, still being under 20 years at the time of sentencing, and emotionally immature, would be at risk of violence within the prison system and might well have to serve part of his sentence in protective custody. This is perhaps best understood as a basis for complaint as to the inflexible application of the Henry guidelines. 10 The second contention was that the primary judge had erred in treating his criminality and subjective circumstances as equal to that of the co-offender, King, who was given an identical sentence. 11 Each of the latter two grounds concern the custodial sentence imposed and may be addressed after the primary contentions have been considered.