Muliaga v R [2008] NSWCCA 342

New South Wales Court of Criminal Appeal

CITATION: Muliaga v R [2008] NSWCCA 342

HEARING DATE(S): 28 October 2008 JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 15; McCallum J at 16

EX TEMPORE JUDGMENT DATE: 28 October 2008

DECISION: Grant leave to appeal but dismiss the appeal.

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED : R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 Veen v R (No 2) (1988) 164 CLR 465

PARTIES: Ian Muliaga (Applicant) The Crown

FILE NUMBER(S): CCA 2007/5388

COUNSEL: C T Loukas (Applicant) V Lydiard (Crown)

SOLICITORS: Shopfront Youth Legal Centre (Applicant) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/3121

LOWER COURT JUDICIAL OFFICER: Christie DCJ

LOWER COURT DATE OF DECISION: 20 November 2007

IN THE COURT OF CRIMINAL APPEAL 2007/5388

McCLELLAN CJ at CL SIMPSON J McCALLUM J

TUESDAY 28 OCTOBER 2008 MULIAGA, Ian Peter v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to one count of armed robbery contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for that offence is 20 years imprisonment. He seeks leave to appeal against his sentence. 2 The offence occurred at about 9 pm on 23 November 2006 when the applicant, accompanied by two other men, robbed the McDonald's restaurant at Villawood. At the time there were approximately 15 people present including customers, staff and the night manager. 3 At the time the applicant was wearing sunglasses and carrying a 30cm long knife. His accomplices were disguised and one of them was carrying a garden-type implement capable of being used as a weapon. The applicant and the man carrying the implement, having entered the premises, demanded that all present get onto the ground and that the cash drawer be opened. The applicant then jumped over the counter while another man dragged a female employee towards the drive-in window and demanded that she open the till. One of the co-offenders struck the night manager with the garden implement. The offenders took $900. Having taken the money the applicant and the other offenders ran from the premises. 4 The applicant was born on 18 January 1984 and was aged 22 years at the date of the offence. He is in a relationship and has three children, the youngest of whom has cerebral palsy. The applicant was assaulted in 2003 and has been left with a mental disability. As a consequence, the sentencing judge found that the Crown conceded that less weight should be given to matters of general deterrence. His Honour also found that the ingestion of illicit substances played a part in the commission of the offence. During the period leading up to the offence the applicant had consumed one to one and a half bottles of Jim Beam bourbon and apparently smoked some ice. If this report was accurate Mr Champion, a clinical psychologist, believed that the applicant may have been agitated and disinhibited by the drugs he had ingested. 5 The applicant has an appalling criminal record. The sentencing judge described it as a "matter of grave concern to the court." It includes an offence of robbery in company in November 2000, steal from a person in January 2001, assault with intent to rob whilst armed with an offensive weapon in January 2001, robbery in company in October 2001 and robbery in company in April 2002. All of these offences occurred before the applicant was a victim of assault in 2003, which may have affected his intellectual capacity. Following that assault, he has been convicted of stealing from a person in 2004, resisting police in November 2004 and maliciously destroying property in May 2006. There are other matters in his record which are of less significance. 6 At the time the offences were committed the applicant was subject to various recognizances for malicious damage and offensive behaviour matters. 7 The applicant admitted his offences and cooperated with the authorities. Accordingly, his Honour determined that it was appropriate to provide the full 25% discount, although his Honour said it was "on the generous side." 8 Because of an identified need for a longer period on parole the sentencing judge determined that it was appropriate to make a finding of special circumstances. His Honour expressed his resolution of the sentence by indicating that his starting point was a term of imprisonment of 8 years. Allowing for a 25% discount his Honour determined a head sentence of 6 years. When passing sentence his Honour imposed a non-parole period of 3 years and 9 months with a total term of 6 years. 9 The applicant complained that the sentence is excessive. It was submitted that the starting point for the sentence was in excess of that suggested by reference to the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. In that case this Court suggested that an appropriate sentence for armed robbery in the circumstances identified by the Chief Justice was a sentence of imprisonment within the range 4 to 5 years (at [165]). The circumstances contemplated by the court were a young offender with no or little criminal history, a weapon, like a knife, a limited degree of planning, limited actual violence, a victim in a vulnerable position, a small amount taken and a plea of guilty, the significance of which is limited by a strong Crown case. 10 There are a number of features of the applicant's circumstances which are similar to these matters. However, the differences are significant. The applicant was 22 years of age and although he was not old, he could not be described as a young offender. More particularly, he has an appalling criminal history necessitating a sentence which reflected his continuing attitude of disobedience to the law. Retribution, deterrence and protection of society require a more severe penalty: see Veen v R (No 2) (1988) 164 CLR 465 at 477-478. 11 Apart from these matters the offence was committed while the applicant was on conditional liberty. He was in the company of two others and the offence rather than being spontaneous was planned. 12 To my mind the sentencing judge was correct when he determined that a sentence greater than that contemplated by the guidelines should be imposed. I see no error in a head sentence of imprisonment of 8 years but for the plea of guilty. 13 The second ground of appeal was a submission that the sentence was manifestly excessive. It follows from my determination of the first ground of appeal that this ground must fail. In my opinion the sentence imposed by his Honour was within the appropriate range. 14 Although I would grant leave to appeal I would dismiss the appeal. 15 SIMPSON J: I agree. 16 McCALLUM J: I also agree. 17 McCLELLAN CJ at CL: Accordingly, the orders of the court are as I have stated. **********