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. Significance of rehabilitation program 12 In Henry, Spigelman CJ stated at [174]: "Drug addiction is one of the circumstances of a particular offence that is relevant to the sentencing exercise. It may, for example, be pertinent to the issue of impulsiveness/planning or to the weight to be given to rehabilitation in a particular case." As his Honour further noted, it is not "of itself" a mitigating factor: at [192]. There are statements to similar effect in the judgment Wood CJ at CL at [273] and [274]. 13 There is no doubt that the sentencing judge took account of the evidence given with respect to the rehabilitation program. His Honour noted the evidence given by the applicant's mother that "his behaviour is much improved and the relationship with his parents has improved markedly" since he commenced the program. He also noted the view of the probation and parole officer that the Bridge program was a satisfactory one. He noted (p 11): "The residential program where he has been prohibits drugs completely, in fact there is a regular testing for substance abuse and insofar as I have found any evidence of it, there has been no positives found." 14 He also noted the statement from Mr Bartley, a worker on the program, who confirmed the applicant's attendance and compliance with the conditions of the program. His Honour noted (p 13) that the treatment phase of the program lasted for seven months and that the applicant was expected to complete the course in October 2006. He noted Mr Bartley's evidence that the applicant was committed to his rehabilitation and was making satisfactory progress. His Honour referred to the various purposes of a sentencing order and remarked (p 15): "Especially when we come to young offenders, as these two offenders are, at least an important aspect is to try and promote rehabilitation." 15 In the light of this material, it cannot be said that his Honour failed to give appropriate consideration to the Bridge program and the value of the program in relation to his rehabilitation. Some reliance is sought to be placed upon an exchange with counsel during the applicant's evidence as to the relevance of "bible studies" in a drug rehabilitation program. He also expressed some doubt as to how effective rehabilitation schemes were and noted that, although his attendance was voluntary, it was in the applicant's own interests to stay at the program until he was sentenced. 16 His Honour's remarks on sentence, the fact that he backdated the sentence for two months to take account of 50% of the time spent in the voluntary rehabilitation program and referred, without adverse comment, to the evidence before him in relation to the program and the applicant's participation, cast doubt on the relevance of the exchanges during argument. The purpose of oral submissions is to allow exchanges between counsel and the Court: only in rare and extreme circumstances will such exchanges demonstrate pre-judgment or bias: compare Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497, where the trial judge indicated his decision with respect to a particular application without listening to argument. In any event, the exchanges in the transcript, even when read without reference to the reasons given on sentence (which is not an appropriate course to take) do not demonstrate any reasonable apprehension of bias. 17 The applicant also complained that his Honour had expressed the view that, even where rehabilitation had been effected, that would not foreclose a custodial sentence unless there was "medical evidence that there is a serious risk that rehabilitation so far achieved would be destroyed by a custodial sentence". 18 However, this comment demonstrates that his Honour was conscious of the possibility that interruption might have a detrimental effect on rehabilitation so far achieved. The comment itself does not demonstrate pre-judgment of the ultimate issue of whether there should be a custodial sentence or not, and was made by reference to authority. 19 There is, in my view, no substance to the challenge to the sentence imposed, on the basis of the manner in which his Honour dealt with evidence of involvement in a course designed to assist the applicant with his drug addiction. Inflexible application of guidelines 20 The second matter of challenge was described as an inflexible application of the guidelines set out in Henry's case. However, it is difficult to see on what basis that complaint could be made good. Henry was expressly concerned with an offence under s 97(1) of the Crimes Act. It indicated that for conduct which was accompanied by certain specified characteristics, a sentence should fall within the range of four to five years imprisonment. 21 Apart from the complaint that his Honour failed to give adequate weight to the participation of the applicant in the Bridge program, which has already been addressed, there is little additional that can be said in response to the present challenge. His Honour undoubtedly took into account the subjective circumstances of the applicant, the fact that there was no weapon involved and the fact that the injuries received by the victim were relatively minor. He also took into account the fact that the applicant had not previously served a custodial sentence and that this was his first offence of the present kind. The sentencing judge did not start with a sentence of between four and five years, but one of three years and four months, from which he made a further reduction on account of the guilty plea. 22 In his written submissions, counsel for the applicant noted that it could, no doubt, be argued that the sentence imposed was "within range". Such a conclusion was, with respect, more than arguable – it was correct. There is no suggestion that relevant circumstances of aggravation and mitigation were not taken into account, as required by the Crimes (Sentencing Procedure) Act, s21A. This ground must be rejected as must the related ground concerning his subjective circumstances and possible treatment in the prison system. Parity of sentence 23 In his written submissions, counsel for the applicant contended that a real sense of grievance would arise from the fact that the applicant was sentenced to the same term as his co-offender, Mr King. 24 In the course of sentencing the two offenders together, his Honour dealt first with the applicant. He then turned to Mr King and noted that he had expressed concern in the course of argument about the question of parity. He continued (p 19): "When considering the parity of sentencing it is true that Mr King had a more extensive criminal record than Mr Khare, however Mr Khare, I found, had a more active role and that Mr King had a more subordinate role. In view of those two factors, I found that the sentencing of both persons ought to be the same." 25 Later his Honour continued, having recounted the agreed facts (p 26): "The offender King however, I found played a subordinate role to that of the co-accused, Gary Khare. It was Khare after all who confronted the victim, demanded his wallet and threatened to kill him if he refused to comply. Nevertheless, King assaulted the victim." 26 Each offender being a young man, his Honour spent some time in his reasons considering the subjective circumstances of each individually. Their early histories were significantly different, Mr Khare having had what was described as a "sheltered" life prior to arriving in Australia, whereas Mr King had spent time from the age of 10 in a juvenile justice centre. None of the relevant matters was easily weighed, the one against the other. But given the objective circumstances of the crime, in which the applicant played a more significant role than Mr King, it is difficult to see how the applicant could harbour a reasonable sense of grievance, arising from the parity of the sentences. In my view this complaint is without substance. Conclusions 27 The basis of the current application depends upon the weighing of particular factors properly taken into account by the sentencing judge. The resulting sentence was within an appropriate range. Nor do the reasons given by the sentencing judge demonstrate any misunderstanding of principle or of the facts. 28 In these circumstances, no grounds have been made out to justify a grant of leave to appeal and the application should be refused. 29 HIDDEN J: I agree with Basten JA. 30 BELL J: I agree with Basten JA. ********** 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.