Agha v R [2008] NSWCCA 153

New South Wales Court of Criminal Appeal

CITATION: Agha v R [2008] NSWCCA 153

HEARING DATE(S): 24/6/08

JUDGMENT DATE: 16 July 2008

JUDGMENT OF: Bell JA at 1; Grove J at 28; Latham J at 29

DECISION: 1. Grant leave to appeal. 2. Appeal dismissed.

Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Mental Health (Criminal Procedure) Act 1990 (NSW)

Markarian v R [2005] HCA 25; 228 CLR 357 Pearce v R [1998] HCA 57; 194 CLR 610 R v Engert (1995) 84 A Crim R 67 CASES CITED : R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 R v Letteri (unreported), Court of Criminal Appeal, 18 March 1992 R v Mailes [2004] NSWCCA 394; 150 A Crim R 365 R v Mitchell [1999] NSWCCA 120; 108 A Crim R 85 R v Palu [2002] NSWCCA 381; 134 A Crim R 174

PARTIES: Omar Agha (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2007/00003845

COUNSEL: Mr L McDermott (Applicant) Ms J Girdham (Crown)

SOLICITORS: Mulley Roth Solicitors (Applicant) S Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0293

LOWER COURT JUDICIAL OFFICER: Norrish QC DCJ

LOWER COURT DATE OF DECISION: 10/8/07

IN THE COURT OF CRIMINAL APPEAL 2007/00003845

BELL JA GROVE J LATHAM J

Wednesday 16 July 2008 R v Omar AGHA Judgment 1 BELL JA: This is an application for leave to appeal against the severity of limiting terms of imprisonment imposed on the applicant on 10 August 2007 by Norrish QC DCJ following a special hearing conducted under s 21A of the Mental Health (Criminal Procedure) Act 1990 (NSW) (MHCP Act). His Honour found that, on the limited evidence available, the applicant committed the offence of stealing property from the person of KK and the robbery of CH. Both offences occurred on 23 February 2005. 2 His Honour nominated a limiting term of nine months' imprisonment to commence on 7 July 2007 for the offence of stealing from the person and a limiting term of two years' imprisonment to commence on 7 October 2007 for the offence of robbery. 3 The verdicts of the Court at the special hearing are "convictions" and the limiting terms "sentences" for the purposes of s 5(1)(c) of the Criminal Appeal Act 1912 (NSW): R v Mailes [2004] NSWCCA 394; 150 A Crim R 365 at 367, [6]. 4 Each of the offences was charged under s 94 of the Crimes Act 1900 (NSW) and is subject to a maximum penalty of 14 years' imprisonment. 5 The first offence involved the theft of KK's handbag, containing two mobile phones, cash and other personal items. His Honour described the offence as being, "at face value, a very mean exploitation of a naïve young woman". (ROS 2.11-2.12) He said this: "It may well have been, in the context of all the circumstances, that the offender's taking of her handbag was something of a spontaneous action on his part, or an action with limited planning, but he had been with the young lady for an extended period of time. He had an opportunity to gauge her, as best he could with limited intellect, and it is clear that he decided to take advantage of her trusting nature as displayed to him throughout the afternoon they were together." (ROS 2.14 – 2.23) 6 A second offender was present at the commencement of the incident leading to the robbery of CH. The applicant and the second offender both put on disguises before approaching CH. The second offender was the first to take hold of her, but the applicant joined in the physical assault. The second offender ran off, leaving the applicant, who continued to assault CH before robbing her. She was 16 years old. His Honour considered that she had been defenceless against a person of the applicant's build. He found that it was a prolonged assault during which CH was "clearly terrified". (ROS 3.26) 7 His Honour went on to say: "The second offence is a more serious offence, and involves a blatant violation of the security and well-being of a young girl in daylight hours in an area where it would appear that she was effectively isolated from other people. The conduct of the offender may well have been influenced by the other person. I do not have enough details about that person to conclude positively that the offender was led into this offending behaviour. However, the allegation involved a serious assault, in my view, in the sense that the handling of the victim, the placing of her in the building where she was robbed, had very serious features to it. In relation to that matter the offender's companion ran away before the struggle, which led to the stealing of the victim's property, had concluded. The offender, however, continued with the struggle, as I have identified in the facts in my judgment, although it may well be, as was put by his counsel, that his continuation in the course of conduct initiated by him and his colleague may be itself a reflection of the character of his intellectual disability." (ROS 2.24-3.15) 8 The applicant was on bail on a charge of robbery in company at the time of the commission of these offences. He was later found unfit to be tried for the robbery in company offence and, following a special hearing, a nine month limiting term was nominated, which commenced on 12 May 2006 and concluded on 11 February 2007. 9 The applicant's criminal record revealed that he had appeared before the Bidura Children's Court in December 2002 on a charge of demanding money with menaces. This was dismissed pursuant to s 32 of the Mental Health (Criminal Procedure) Act 1990. He was convicted by the Local Court at Parramatta on 2 February 2006 of an offence of obscene and wilful exposure. 10 The applicant was born in May 1985 and was aged 19 years at the date of these offences. He has an intellectual disability, which was detailed in a number of reports. His parents migrated to Australia from Lebanon. He was born in Australia and is one of eight children raised in a loving family environment. He speaks Arabic and English. He is unable to read or write in either language. He was an unruly student and he left school at the age of 16 without attaining any qualifications. Since leaving school, he has not held any form of employment. 11 The Probation and Parole Service assessed the applicant as a young man with limited understanding of, or insight into, his behaviour. The author of the pre-sentence report commented that the applicant is a person who has shown himself to be, "easily influenced by a negative peer group". (ROS 6.23-6.24) 12 The applicant relied on the report of Dr Westmore and the Crown relied on the report of Dr Wong. Both are forensic psychiatrists. His Honour expressed a preference, to the extent the opinions of the two were in conflict, for the views expressed by Dr Westmore. Dr Westmore considers that the applicant suffers from moderate intellectual retardation. (AB 65) 13 His Honour noted Dr Westmore's opinion that the applicant has, "behavioural difficulties of an anti-social type". (ROS 7.29-8.1) These are associated with the applicant's intellectual difficulties, which are of a "constitutional nature". (ROS 8.3) They are life-long difficulties that are not amenable to medical intervention. Dr Westmore observed that with age and possible maturation there may be a reduction in the incidence of the applicant's behavioural problems. In his opinion, it is unlikely that medication, counselling or any specific therapy, either inside or outside gaol, will result in major changes in the applicant's behaviour. His Honour extracted the following passage from Dr Westmore's supplementary report: From a forensic perspective, Mr Agha's prognosis should be considered very cautiously and in a guarded fashion at this time. In view of his previous history, his future risks of re-offending should be considered moderate to high." (ROS 8.18-8.23) 14 His Honour was impressed with the evidence of the psychologist, Mr Roberts, who is employed by the Department of Ageing, Disability and Home Care Services. Mr Roberts attached a report by Shannon Packham, a casework specialist with the Department, to his report. Mr Roberts gave oral evidence at the sentence proceedings. He had observed positive signs indicating that the applicant has a capacity to take greater control of his own affairs and some understanding of the need to change his behaviour. Mr Roberts assessed the appellant as having the potential to participate in "an employment process". (ROS 9.13) 15 The applicant was cooperative in his interviews with Mr Roberts, Dr Westmore and the Probation and Parole Service. The applicant is not a person who is considered suitable for "sheltered workshop" disability employment. Shannon Packham assessed the applicant as being suitable for employment in the open market, provided he is given training and the employment environment is a supportive one. 16 His Honour found that there was some hope for the future. 17 Section 23 of the MHCP Act provides: " 23 Procedure after completion of special hearing