New South Wales Court of Criminal Appeal CITATION: Ahmed v R [2008] NSWCCA 305 HEARING DATE(S): 5 December 2008 JUDGMENT OF: McClellan CJ at CL at 21; Grove J at 1; Howie J at 22 EX TEMPORE JUDGMENT DATE: 5 December 2008 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - No special point of principle CATEGORY: Principal judgment PARTIES: Samir AHMED - Applicant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2008/484002 COUNSEL: In person - Applicant V. Lydiard - Respondent/Crown SOLICITORS: - S. Kavanagh (Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/11/0470 LOWER COURT JUDICIAL OFFICER: Solomon DCJ LOWER COURT DATE OF DECISION: 24/01/08 IN THE COURT OF CRIMINAL APPEAL CCA 2008/484002 McCLELLAN CJ at CL GROVE J HOWIE J Friday 5 December 2008 Samir AHMED v REGINA Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Solomon DCJ in Sydney District Court. The applicant had been committed for sentence from the Local Court on a charge of robbery whilst armed with an offensive weapon, an offence which carries a prescribed maximum penalty of imprisonment for twenty years. The applicant adhered to his plea and asked his Honour to take into account five other offences, being three charges of obtaining a valuable thing by deception, one charge of driving a conveyance without the consent of the owner and one charge of driving a stolen motor vehicle. 2 His Honour imposed a sentence consisting of imprisonment for a non-parole period of three years and six months commencing on 24 January 2007, together with a balance term also of three years and six months commencing on 24 July 2010. 3 The applicant has appeared for himself in this application and I shall in due course turn to the matters which he has sought to raise. 4 The proceedings in the District Court included the tender of an agreed statement of facts which had been reduced to writing and signed by the applicant and the solicitor representing the prosecution. I extract there-from that about 1.30pm on Sunday 13 August 2006, Mr Aldo Capaldi was walking along a street in Newtown on his way to work. He was wearing a backpack. The applicant approached him in a motor vehicle which had been stolen. A woman named Amanda Barnes was in the passenger seat. The applicant alighted from the vehicle and accused Mr Capaldi of "messing" with his girlfriend. Mr Capaldi had never met either the applicant or Ms Barnes. The applicant produced a knife, asked for cash and threatened to stab Mr Capaldi. 5 In response, Mr Capaldi yielded possession of his backpack which contained a number of items including his driver's licence, credit cards and some cash. The applicant left the scene and went to a shopping centre where he used Mr Capaldi's credit card for the purpose of obtaining goods. In the meanwhile, Mr Capaldi had reported what had happened to police and as well contacted the issuers of his credit cards. Prompt reaction by them and by the police led to the arrest of the applicant and Ms Barnes at the shopping centre. 6 The three charges of obtaining goods by deception related to the use of the stolen credit cards, the respective purchases by the applicant being cigarettes for $155.50, jewellery for $1200 and a gaming console for $638 7 The first offence relating to a motor vehicle concerned that being driven by the applicant on the day of the robbery. The second offence concerning a vehicle related to a theft at Mosman on 22 February 2006. The vehicle was recovered by police on 9 July 2006 and the applicant's DNA was identified on the steering wheel. 8 The evidence before Solomon DCJ was that Ms Barnes had pleaded guilty to concealing a serious indictable offence and she had been dealt with prior to the appearance of the applicant. 9 The applicant was born on 17 July 1973 and is therefore now aged 35 years. He has a significant record commencing with appearances in the Children's Court from 1989. As an adult in 1992 he was sentenced to a minimum term of two years and six months with an additional term of two years and six months for a number of offences, including two counts of armed robbery. In 1995, he was sentenced in the Australian Capital Territory Supreme Court to imprisonment for three years for an offence described as robbery using force on a person. At Parramatta District Court in 1998, he was sentenced to a minimum term of three years with an additional term of three years for robbery whilst armed with an offensive weapon. 10 I do not list all of the other convictions which the applicant has, but in May 2004 he received sentences at Parramatta District Court for taking and driving a conveyance and a number of driving offences. He was on parole at the time of committing the current offence. 11 After his arrest on 13 August 2006, he was ordered to serve the balance of the 2004 sentences consequent upon his parole being revoked and that balance was due to expire on 31 March 2007. I should also note that on 25 January 2008, the applicant was sentenced at Central Local Court to a term of six months imprisonment commencing on 25 January 2008 for being carried in a stolen conveyance. That sentence would be served entirely within the non-parole period imposed by Solomon DCJ. 12 Grounds of appeal have been filed and the applicant stated: 1. I would like to appeal please on the judge error by not seeing the good things that I was doing and to take it into account. 2. That I am registered under the Mental Health Act. 3. That I was misrepresented by my solicitor, Mr Galloways. 4. I never got my full backdate spending time in custody. 5. I pleaded guilty then my charge got changed into another charge. 13 In support of these grounds, the applicant has filed a written submission in which he states that he had no intention to do this "unlawful crime", that he was coerced by his co-offender and that he has a mentality of a 15-year-old kid and does not think "straight away." The applicant also states that he was working when he was arrested, going to TAFE and trying to assist himself. He gave evidence at the sentencing proceedings and stated that it was at Ms Barnes' instigation that he committed the offence, that he had been attending TAFE and he had been working as an electrician's assistant. 14 In his remarks on sentence, his Honour made no express reference to these matters but it is clear in his observations concerning the progress towards rehabilitation that he had those matters in mind. Although the applicant observed that he has lived on the streets from a very young age, his Honour noted that he now had the support of his family and that his parents had indicated a willingness for him to reside with them after his release. 15 There was no evidence that the applicant was "registered under the Mental Health Act" and a psychiatric report expressed the opinion that the applicant did not present with either history or symptoms consistent with major mental illness. 16 His Honour had a discretion to exercise in relation to setting the commencement date of sentence. From the day after the applicant's arrest until 31 March 2007, the applicant would be held in custody in any event pursuant to the revocation of his parole order. His Honour ordered a commencement date of 24 January 2007, thus according the applicant a benefit of concurrency of a little over two months. The applicant had no entitlement for the sentence to be backdated to the date of his arrest. 17 I have already observed that during the currency of this sentence he has been required to serve no additional time in respect of the conviction in January this year. It is obvious from the specification of the non-parole period as a proportion of total sentence that his Honour accorded to the applicant a considerable opportunity to pursue efforts at rehabilitation. 18 There is no error demonstrated in his Honour's approach to sentence, nor in his assessment. Given the circumstances of the offence and the applicant's prior record, the imposition manifests some significant leniency being accorded to the applicant. 19 In oral submissions today the applicant referred to a continuing desire to have some assistance, particularly with rehabilitation by the entry into a drug program. This is of course a court of error and whilst it is to be hoped that the applicant can pursue his hopes for rehabilitation, that is not a basis upon which the intervention of this court can be attracted. He has also expressed sorrow for what he has done and for my part I would be prepared to accept the sincerity of what he has said, but again that is not a basis upon which this appellate court can intervene and re-sentence. 20 I would grant leave to appeal against sentence but dismiss the appeal. 21 McCLELLAN CJ at CL: I agree with Grove J. 22 HOWIE J: I also agree. 23 McCLELLAN CJ at CL: Accordingly, the orders of the court are as proposed by Grove 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. 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