Reported Decision: 194 A Crim R 20[2010] ALMD 4184 New South Wales Court of Criminal Appeal CITATION: Trad v R [2009] NSWCCA 56 HEARING DATE(S): 25 February 2009 JUDGMENT DATE: 11 March 2009 JUDGMENT OF: Grove J at 1; Buddin J at 2; Price J at 3 DECISION: 1. Leave to appeal against sentence be granted 2. Appeal dismissed CATCHWORDS: Criminal law - sentencing - aggravated car-jacking and robberies in company - assessment of objective seriousness of offences - totality - sentences not manifestly excessive LEGISLATION CITED: Crimes Act 1900 s 97(1), s 154C(2), s 154H(1)(a), s 154J, s 188(1) CATEGORY: Principal judgment House v The Queen (1936) 55 CLR 499 Mulato v R [2006] NSWCCA 282 Pearce v The Queen (1998) 194 CLR 610 R v Barker, R v Gibson [2006] NSWCCA 20 R v Fernando [2002] NSWCCA 28 CASES CITED : R v Henry (1999) 46 NSWLR 346 R v Johnson [2004] NSWCCA 140 R v MMK (2006) 164 A Crim R 481 R v Way (2004) 60 NSWLR 168 Regina v Cramp [2004] NSWCCA 264 Versluys v R [2008] NSWCCA 76 PARTIES: Hassan Trad Regina FILE NUMBER(S): CCA 2007/12737 COUNSEL: W C Terracini SC (Appellant) L Babb SC (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/21/0203 LOWER COURT JUDICIAL OFFICER: Hughes DCJ LOWER COURT DATE OF DECISION: 04/04/08 IN THE COURT OF CRIMINAL APPEAL 2007/12737 GROVE J BUDDIN J PRICE J 11 March 2009 Trad v R Judgment 1 GROVE J: I agree with Price J. 2 BUDDIN J: I agree with Price J. 3 PRICE J: The appellant upon arraignment in the District Court on 4 February 2008 pleaded not guilty to counts 1, 2, 3 and 5 on an indictment but guilty to count 4. After a five-day trial, the jury found the appellant guilty of all the counts the subject of the trial. On 4 April 2008 the sentencing Judge imposed the following sentences: Count 1 (an offence of robbery in company contrary to s 97(1) of the Crimes Act 1900) to a fixed term of imprisonment of 2 years dating from 11 February 2008 to 10 February 2010. The maximum penalty for this offence is 20 years imprisonment. Count 2 (an offence of robbery in company contrary to s 97(1) of the Crimes Act ) to a fixed term of imprisonment of 2 years dating from 11 March 2008 to 10 March 2010. Count 3 (an offence of aggravated car-jacking contrary to s 154C(2) of the Crimes Act ) to a term of imprisonment of 8 years consisting of a non-parole period of 5 years dating from 11 May 2008 to 10 May 2013 with a balance of term of 3 years dating from 11 May 2013 to 10 May 2016. The maximum penalty for this offence is 14 years imprisonment with a standard non-parole period of 5 years. The circumstances of aggravation was that the offence was in company. Count 4 (an offence of dishonestly interfering with a unique identifier contrary to s 154H(1)(a) of the Crimes Act ) to a fixed term of imprisonment of 11 months dating from 11 April 2008 to 10 March 2009. The maximum penalty for this offence is 7 years imprisonment. A 10 per cent discount for the utilitarian value of the plea of guilty was taken into account on sentence for this offence. Count 5 (an offence of disposing of stolen property contrary to s 188(1) of the Crimes Act ) to a fixed term of imprisonment of 2 years dating from 11 April 2008 to 10 April 2010. The maximum penalty for this offence is 12 years imprisonment. 4 The sentencing Judge also took into account on sentence a matter on a Form 1 being a charge of knowingly possess without reasonable excuse, a vehicle identification plate not attached to the motor vehicle to which it relates contrary to s 154J of the Crimes Act. Such an offence carries a maximum penalty of 5 years imprisonment. 5 The total effective sentence was a term of 8 years 3 months with a non-parole period of 5 years 3 months. 6 The appellant seeks leave to appeal against the sentences imposed on three grounds: Ground 1: The sentencing Judge erred in his assessment of the objective seriousness of the robbery and car-jacking counts. Ground 2: The sentencing Judge failed to adequately reflect his finding of "special circumstances" in the sentences imposed. Ground 3: The sentence was manifestly excessive. Facts 7 The sentencing Judge found the following facts (ROS 2-5): "…The victim, Bruno Daniele, in 2006 advertised his vehicle bearing New South Wales registration plates AIV16F for sale on the Internet site www.carsales.com.au . The vehicle AIV16F was a black Honda Prelude and bearing VIN number JHBB6150YC200255 (sic). On 3 October 2006 a black Honda Prelude, bearing New South Wales registration plate AZPO8W was sold at auction to the offender, Hassan Trad, by Pickles Auction Group in Canberra. This vehicle was sold with heavy panel damage and light structural damage to the front. The VIN number for that vehicle, AZPO8W is JHBB6140XC200069 (sic). This vehicle was not driveable and was transported to Sydney by Hassan Trad. On 4 October 2006 the offender, Hassan Trad, contacted Bruno Daniele on his mobile phone and informed him that he was interested in purchasing vehicle AIV16F. Over the next twenty-four hours the offender again contacted Bruno Daniele numerous times in efforts to arrange a viewing time and a location. Finally, the offender and victim, Bruno Daniele, arranged to meet at the Readings Cinema carpark Auburn at 8.30pm on 4 October 2006. Around about 8pm the victim, Bruno Daniele, along with his brother in-law, Adrian Miano (victim number two) attended Readings Cinema carpark Auburn in vehicle AIV16F. Whilst waiting Bruno Daniele received several other phone calls from Mr Trad on his mobile phone informing him the offender was running late. At about 8.25pm the offender, together with four other unknown male co-offenders, approached Daniele and Miano who were both standing directly next to their vehicle AIV16F. The offender and Daniele and [Miano] engaged in conversation about vehicle AIV16F and its condition. While the offender inspected the vehicle the tallest co-offender, male, has produced what appeared to be a firearm and pointed it at point blank range into Daniele's ribcage. This is offence number one, robbery in company. The offender reached into Daniele's left pants pocket and took the vehicle's, AIV16F, main keys and spare keys and a V3I Motorola mobile telephone. The second offence of robbery in company, the second matter on the indictment, is at the same time when three other co-offenders have demanded the mobile phone and wallet of Miano, who is victim number two. Mr Miano handed the co-offenders his Nokia N70 mobile phone and a wallet containing $100 and personal cards. Offence number three is the car-jacking. The offender has entered the vehicle AIV16F and occupied the driver's seat. Both victims were directed by the co-offender, pointing what appeared to be a firearm, to walk away from the vehicle and not look back. The offender, together with several co-offenders, has driven the vehicle AIV16F away from the cinema carpark. Offence number 4 is re-birthing. Between 5 October 2006 and 5 November 2006 the offender had interfered with the unique identifiers of vehicle AZPO8W by cutting the VIN numbers JHMBB6140XC200069 off the chassis and removed the compliance plates, manufacture plates, registration and registration plates. The offender has added these unique identifiers belonging to the vehicle AZPO8W onto vehicle AIV16F and indeed it came out that the engine from AZPO8W was also inserted into the vehicle AIV16F. Examination revealed that the metal plate with VIN Number JHBB6140XC200069 (sic) was welded on top of the original chassis VIN number JHBB6150YC200255 (sic). These were shown again in photographs in the exhibits. The offender, as I said, also replaced the engine of AIV16F with the engine from AZPO8W. The fifth offence on the indictment, receiving, took place on 5 November 2006. The offender sold the vehicle AIV16F (fraudulently imitating vehicle AZPO8W) to Mr Charbal Boustani for the amount of $15,000. This vehicle was stolen from Boustani's home address and located burnt out several hours later. Mr Boustani gave evidence, and indeed it was referred to again this morning by the Crown that Mr Boustani did not have an opportunity in that short time to insure the car and therefore has suffered a loss and makes a claim for that loss." Subjective Circumstances 8 During the proceedings on sentence the appellant gave evidence and the written material which was tendered included a report dated 24 March 2008 from John Jacmon, a psychologist, and a character testimonial. 9 The appellant was born on 19 February 1986 and was 20 years old at the time of the offending. His criminal record commenced in 2006 when he was convicted of common assault in the Local Court and placed on s 9 bond to be of good behaviour for 12 months commencing on 2 March 2006. Other convictions include goods in personal custody and carrying a cutting weapon for which fines were imposed. 10 The psychologist's report recorded the appellant's background. He was born in Sydney to parents who had migrated from Lebanon. He had two brothers and two sisters and grew up in a warm, supportive family environment. He completed year 12 at Homebush Boys High and obtained a UAI which enabled him to attend university. He did so for about a month and then left to study for a TAFE finance and banking diploma. He had completed about half of the course by the time of his being taken into custody for the present offences. Whilst studying he worked at a call centre for the National Australia Bank. The psychologist detailed the appellant's relationship with his girlfriend which had become "rocky" because of her possessiveness of him. The psychologist opined that at the time of the offences "depression and anxiety at clinically significant levels appeared to have been markedly impairing [the appellant's] daily functioning at the time of the incident. The impairment is likely to have existed since his relationship began to sour well before the incident." Symptoms included difficulties in concentration, memory, problem solving and decision making. The psychologist noted the appellant's sadness at the distress the offending had caused his parents and the loss of his career in banking. He had resolved to turn his life around and prepare himself for integration into the community as a productive and law abiding citizen. 11 During his testimony before the sentencing Judge the appellant said that what he had told the psychologist was truthful. He denied that he had freely participated in the crimes for which he was being sentenced. Following cross-examination of the appellant by the Crown advocate, the sentencing Judge concluded that the appellant's "rocky relationship with his fiancée" was not a causative factor in his offending. 12 It had been the appellant's evidence before the jury that he had no involvement in the robberies and car-jacking being counts 1 to 3. He had met a person called Harry or Hamad who sold him the first vehicle as part of an "insurance job". He had subsequently sold the vehicle to Mr Boustani. In that context, he admitted interfering with the unique identifiers belonging to the second vehicle but denied involvement in any of the other offences. 13 The sentencing Judge in his remarks on sentence said (ROS at 10): "I agree that the offences on his record are relatively minor, however, it is not so minor that I could extend leniency because of that fact." 14 His Honour found (ROS at 10): " … there are special circumstances to do with his youth and also this will be the first time he will spend some time in custody." Dealing with the appeal 15 The principal complaint in the first ground of appeal is that the sentencing Judge erred in characterising the car-jacking offence as being in the mid-range, particularly having regard to the fact that neither actual violence was used nor was there evidence of an actual firearm being involved. 16 In written submissions to the sentencing Judge the Crown had contended that whilst there was no evidence that the weapon used was in fact a firearm, the weapon nevertheless fell within the definition of an offensive weapon and was relied upon by the Crown as an additional circumstance of aggravation. 17 The attention of this Court was drawn by the parties to what was said by Howie J (with whom Basten JA and Hall J agreed) in R v Barker, R v Gibson [2006] NSWCCA 20 when the offence of aggravated car-jacking was considered. Howie J said at [63]-[64]: "It seems to me that for an aggravated offence involving the offender being in company the following factors may be relevant to an assessment of the objective seriousness of the offence: whether the offence was planned; the number of persons involved in committing the offence and their conduct; the type of threats made; the degree of violence displayed; the number of persons in the vehicle at the time of the offence; the degree of fear instilled in the victim; the period over which the vehicle is used; damage to the vehicle (if not giving rise to a separate charge); the place and time the offence is committed (for example whether at night or in an isolated area); the special vulnerability of the victim; and the motive for the commission of the offence. The list is not intended to be exhaustive. Although counsel referred to the value of the vehicle, I doubt that is a relevant consideration where there is no intention to permanently deprive the owner of the vehicle. Of course the objective seriousness of the offence will be increased if either of the other two aggravating elements of the offence are also present: that is that the offenders, or any of them, are armed with an offensive weapon or actual bodily harm is inflicted upon the victim. If they are present then the nature of the weapon and its capacity to inflict serious injury, and the nature of the injury inflicted, will be relevant factors." 18 Whilst I otherwise enthusiastically endorse what Howie J said in the passage I have quoted, it seems to me that the value of the motor vehicle, the subject of the car-jacking, is a relevant consideration as that motor vehicle is the victim's property which is taken. The car-jacking of a brand new Lamborghini by way of illustration would normally be considered more serious than the car-jacking of a vehicle of a common make and model. Car-jackings are in many cases motivated by the make and model of the vehicle to be taken. I merely make this general observation in passing as this issue was not argued before this Court nor was it a matter taken into account by the sentencing Judge in respect of charge 3. It is not a consideration in the present appeal. 19 The sentencing Judge was obliged to consider where the offence of aggravated car-jacking lay on the scale on objective seriousness as a standard non-parole period applied: R v Way (2004) 60 NSWLR 168. His Honour characterised the offence as being "at least that of the mid range of objective seriousness." 20 A determination of where the subject offence lies on the scale of seriousness of an offence of its type is essentially one of fact and as such is reviewable in this Court only on the principles stated in House v The Queen (1936) 55 CLR 499; R v Johnson [2004] NSWCCA 140; Mulato v R [2006] NSWCCA 282. 21 This was an offence which was carefully planned by the appellant and committed in the company of four co-offenders. The telephone calls by the appellant to Mr Daniele were made under the false pretence of wanting to inspect the Honda Prelude and were used to lure Mr Daniele with his vehicle to the carpark at night so that the car-jacking could occur. As his Honour observed (ROS at 13): " The offence involved a planned and organised criminal activity. The constant ringing of the victim's mobile phone, setting up the meeting place and the crime, as the Crown colourfully put it, was in fact an ambush and indeed it was." 22 Although no actual bodily harm was involved (which his Honour charitably took into account as a mitigating factor), the level of violence that was threatened was high. What had appeared to be a firearm was pointed at point blank range into Mr Daniele's rib cage during the robbery which preceded the car-jacking and was again pointed at both victims when they were directed to walk away from the vehicle and not look back by the co-offender. The sentencing Judge understandably found that: "…it was a terrifying experience for the two victims…" (ROS at 13). 23 In these circumstances it seems to me to make little difference that the Crown was unable to establish that the weapon used was in actual fact a firearm. The inability to establish that the weapon used was in reality a firearm could certainly not be considered to be a mitigating factor: Versluys v R [2008] NSWCCA 76 per McClellan CJ at CL at [37]. 24 I am not persuaded that his Honour overlooked a relevant consideration or that wrong principle was applied or that the finding was not open on the evidence. His Honour's characterisation of the degree of objective seriousness of the offence was, in my opinion, open to him. 25 A further complaint is that the sentencing Judge erred in his assessment of the objective seriousness of the two counts of robbery in company (counts 1 and 2). For these offences fixed terms of 2 years imprisonment were imposed. 26 It is evident from his Honour's sentencing remarks that he was mindful of the sentencing guideline for a contravention of s 97 of the Crimes Act promulgated in R v Henry (1999) 46 NSWLR 346 at 380 of a head sentence of between 4 and 5 years for an offender having the following characteristics: "(i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case." 27 This sentencing range takes into account a 10 per cent discount for a guilty plea. 28 The sentencing Judge said (ROS at 14): "I accept Mr Brewer's submission also that the robbery in a sense was ancillary to the main purpose which was the carjacking. So rather than apply the Henry guidelines which suggest there is a narrower sentencing range of four to five years, I think that does not truly reflect the objective criminality of that part of the sentencing. In other respects, it does fall into the seven characteristics that are regarded in Henry . However, I have decided that on sentencing, for this purpose, on the first matter in the indictment a fixed period of two years. On the second matter in the indictment also a fixed period of two years." 29 The characteristics identified in (iii), (iv), (v) and (vi) in Henry apply to the present case. The victims were in a vulnerable position being in the car park at night. Violence was threatened by the use of a weapon and by the presence of the appellant and his co-offenders. Keys and a mobile phone were taken from Mr Daniele (count 1) and a mobile phone and wallet containing $100 cash and personal cards were taken from Mr Miano (count 2). Whilst the appellant is a young offender with a limited criminal history, an aggravating factor was the commission of the offences whilst on conditional liberty as was the planning that had been involved. Furthermore, the appellant had pleaded not guilty. If these offences had been viewed without regard to the car-jacking, sentences at the top of the range of 4 to 5 years imprisonment might have been called for. The car-jacking, however, immediately followed the robberies and it was open to the sentencing Judge to accept the appellant's submission that the robberies were ancillary to the car-jacking. His Honour for this reason departed from the guideline in Henry by imposing sentences which were below the bottom of the suggested range. If his Honour had not done so, there was the risk that the aggravating factors which were common to the robberies and the car-jacking would have been "double counted" and inappropriate sentences imposed. His Honour did not err, in my opinion, in his assessment of the objective seriousness of the two counts of robbery in company. 30 The first ground of appeal has not been established. 31 In the second ground of appeal the appellant complains that the sentencing Judge failed to adequately reflect his finding of "special circumstances" in the sentences imposed. It was submitted that a non-parole period of 5 years for count 3 in the context of a full term of 8 years was inadequate and did not give adequate effect to his Honour's findings. 32 The special circumstances found by the sentencing Judge were the appellant's youth and first time in custody. 33 Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 requires that the balance of the term of the sentence must not exceed one third of the non-parole period, unless the Court decides that there are special circumstances. The size of an adjustment to the statutory ratio, special circumstances having been found, is essentially a matter within a Judge's discretion. As was observed by Spigelman CJ in Regina v Cramp [2004] NSWCCA 264 at [31] the size of an adjustment for special circumstances "raises so many matters of a discretionary character that this Court should be very slow to intervene" and will not usually be interfered with unless the non-parole period is found to be manifestly inadequate or manifestly excessive. 34 The sentencing Judge varied the statutory ratio so that the non-parole period of 5 years was 62.5% of the 8-year head sentence for count 3. This was the standard non-parole period for the offence. The overall non-parole period of 5 years 3 months was 63.6% of the overall head sentence of 8 years 3 months. The effect of his Honour's finding of special circumstances was to increase the balance of the term of the overall sentence from the statutory ratio of 2 years 1 month (round figures) to 3 years with a corresponding reduction in the non-parole period from 6 years 2 months (round figures) to 5 years 3 months. It seems to me that the proportion of the overall non-parole period to the overall sentence gave effect to the finding of special circumstances. The second ground of appeal, in my opinion, has not been established. 35 The third ground of appeal is that the sentence was manifestly excessive. The appellant complains that given his age, his relatively minor criminal record and other subjective features, the sentences were outside the legitimate range of sentence. The Court's attention was directed to what was said by his Honour in the passage quoted at [13] above. The appellant argued that greater emphasis should have been made of his lack of criminal history. 36 The difficulty with this submission is that whilst the appellant had what was recognised by the sentencing Judge as a relatively minor record, the present offences were committed whilst he was subject to a s 9 bond. The commission of an offence whilst subject to conditional liberty is a matter that aggravates the offence and weighs upon an assessment of the offender's prospects of rehabilitation: R v Fernando [2002] NSWCCA 28. Another obstacle to a positive finding about the appellant's prospects of rehabilitation was his lack of remorse for the offences to which he had pleaded not guilty, as he had maintained his innocence after the jury's verdicts. His Honour closely considered the subjective case advanced for the appellant during his sentencing remarks. In my opinion the sentencing Judge gave appropriate weight to the appellant's subjective circumstances in the balancing process and had proper regard to the serious objective circumstances of his criminal behaviour. Due allowance was made for the relative youth and background of the appellant. 37 It was next submitted that the sentencing Judge failed to adequately take into account the principle of totality. The appellant particularly argued that the sentences for the robberies and the car-jacking effectively referred to one incident and should have been imposed concurrently. 38 The sentence for count 2 (robbery in company - Mr Miano) was partially accumulated on the sentence for count 1 (robbery in company - Mr Daniele) commencing as it did one month after the sentence for count 1. The effective sentence for count 1 was one month. The extent of partial accumulation of the sentence for count 3 (aggravated car-jacking) on the sentence for count 2 was 2 months. The effective sentence for count 2 was accordingly 2 months. 39 Questions of concurrence or accumulation are a discretionary matter for the sentencing Judge but that "discretion is generally circumscribed by a proper application of the principle of totality": R v MMK (2006) 164 A Crim R 481 at [13]. 40 It is evident from the sentencing Judge's remarks that he considered the principle of totality. His Honour said (ROS at 15): "Having regard then to the totality of the sentencing, of course, I do not intend to make them all accumulative or concurrent. I accept both Mr Brewer and the Crown have said that there ought to be some degree of accumulation and I accept that there should be according to Pearce ." 41 His Honour was there referring to Pearce v The Queen (1998) 194 CLR 610 in which the High Court considered the totality principle. 42 The offences of robbery in company involved criminal acts which were separate to the car-jacking. Mr Miano was not the owner of the car and was a separate victim of the criminal offending. Cash, personal cards and a mobile phone were stolen from Mr Miano. A mobile phone, as well as the car keys, was stolen from the person of Mr Daniele. In my opinion, it was open to the sentencing Judge to consider that a small measure of partial accumulation was required for counts 1 and 2. Wholly concurrent sentences were imposed for counts 4 and 5. These sentences were fixed to commence one month after the sentence for count 2 and were subsumed by the sentence for count 3. I do not detect error in the structure of the sentences imposed. 43 I am not persuaded that the overall sentence was outside the legitimate range of sentencing discretion. 44 Accordingly, I propose the following orders: 1. Leave to appeal against sentence be granted. 2. Appeal dismissed. ********** 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.