New South Wales Court of Criminal Appeal CITATION: AN v Regina [2009] NSWCCA 43 HEARING DATE(S): 23 February 2009 JUDGMENT DATE: 23 February 2009 JUDGMENT OF: Grove J at 1; Price J at 2; Buddin J at 34 EX TEMPORE JUDGMENT DATE: 23 February 2009 DECISION: 1. Leave to appeal granted. 2. Appeal dismissed. CATCHWORDS: Criminal law - sentencing - totality - partial accumulation of sentence - role as lookout - sentence not manifestly excessive LEGISLATION CITED: Crimes Act 1900 s 95(2)(b), s 97(1) , s 112(2), Confiscation of Proceeds of Crime Act 1989 s 73(2) CATEGORY: Principal judgment Cahyadi v Regina [2007] NSWCCA 1 CASES CITED : Pearce v The Queen (1998) 194 CLR 610 R v MAK, R v MSK [2006] CCA 381 PARTIES: AN Regina FILE NUMBER(S): CCA 2006/12610011 COUNSEL: Mr T Gillett (Applicant) V Lydiard (Respondent) SOLICITORS: S O'Connor Legal Aid Commission (Applicant) S Kavanagh Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0081 LOWER COURT JUDICIAL OFFICER: Zahra DCJ LOWER COURT DATE OF DECISION: 7 May 2007 IN THE COURT OF CRIMINAL APPEAL 2006/12610011 GROVE J BUDDIN J PRICE J 23 February 2009 AN v Regina Judgment 1 GROVE J: I will ask Price J to deliver the first judgment. 2 PRICE J: On 7 May 2007 the applicant pleaded guilty in the District Court to a single count on an indictment which alleged an offence of aggravated robbery contrary to s 95(2)(b) of the Crimes Act 1900. The maximum penalty for this offence is imprisonment for 20 years. The circumstance of aggravation was the malicious infliction of actual bodily harm. 3 On 10 May 2007 the applicant pleaded guilty to an indictment containing two counts. The first count alleged a robbery in company contrary to s 97(1) of the Crimes Act. The maximum penalty for this offence is imprisonment for 20 years. The second count alleged an aggravated break and enter with intent to commit a serious indictable offence contrary to s 112(2) of the Crimes Act. This offence also carries a maximum penalty of 20 years imprisonment but has a prescribed standard non-parole period of 5 years. The circumstances of aggravation was that the offence was committed in company. 4 The applicant asked the Judge to take into account on sentence two offences of money-laundering contrary to s 73(2) of the Confiscation of Proceeds of Crime Act 1989. The maximum penalty for these offences is 20 years imprisonment. 5 The applicant was sentenced on 15 February 2008. In respect of the count of aggravated robbery (hereinafter referred to as the first count) he was sentenced to imprisonment for 7 years 6 months with a non-parole period of 4 years 6 months commencing on 1 October 2008 and expiring on 31 March 2013. For the count of robbery in company (hereinafter referred to as the second count) the applicant was sentenced to a term of imprisonment of 7 years 6 months with a non-parole period of 4 years 6 months commencing on 1 April 2007 and expiring on 30 September 2011. In respect of the count of break and enter with intent (hereinafter referred to as the third count) he was sentenced to imprisonment for 5 years with a non-parole period of 3 years commencing on 1 October 2005 and expiring on 30 September 2008. 6 The total effective sentence was imprisonment for 10 years 6 months commencing on 1 October 2005 and expiring on 31 March 2016 with a non-parole period of 7 years 6 months commencing on 1 October 2005 and expiring on 31 March 2013, the date upon which the applicant is eligible for release to parole. The two offences on the Form 1 were taken into account by the Judge in the sentence imposed for the second count. 7 The facts of the first count may be summarised as follows: At about 3.20 am on 10 January 2005 the victim, a joint proprietor of a fruit store, left his home with the intention of travelling to his business premises. Whilst he was walking towards his motor vehicle, one of the applicant's co-offenders punched him numerous times to the head. With the assistance of another co-offender, the victim was restrained on the ground and his hands were tied behind his back with cable ties. The applicant waited nearby where he acted as a 'lookout' for police. He was in a position to assist his co-offenders if required. A number of towels were placed over the victim's head by the co-offenders who forced him into the passenger seat of his vehicle. One of the co-offenders then drove the victim's vehicle away. The applicant remained in the area in a black Nissan Skyline. 8 The victim managed to get out of the vehicle whilst it was being driven and ran from it screaming for help. He, however, was tackled to the ground by one of the co-offenders and was returned to the vehicle where more cable ties were applied to his wrist. Further cable ties were applied to his ankles at a park in North Narrabeen. A resident of a nearby house observed the Nissan Skyline and a small dark blue hatchback and recorded the Nissan's number plate. Soon after, the victim was driven to a car park at Collaroy Beach where a co-offender had demanded that he hand over the keys to his store. He was then punched to the head area at which time he surrendered the keys. Duct tape was placed over his mouth and over the top of his face, threats were made to him and his family and his elbows were cable tied to the headrest of the front passenger seat. He was told to stay at that location for an hour and not to move. A short time later, the victim escaped from the vehicle, obtained assistance and the police were called. The applicant was arrested two days later. The applicant's role in the commission of the offence was to act as a lookout. 9 A summary of the facts of the second and third counts is as follows: At about 2.00 am on 24 May 2004, the victim, a proprietor of a grocery business, was woken in the bedroom of his home by the sound of a number of males who had gained entry to his home by forcing the front door. He was told not to move, to co-operate and he would not get hurt. The victim felt an object pressed against his forehead. He was then rolled over onto his stomach and his hands were taped behind his back. A beanie was placed over his head. He was interrogated by the intruders as to where he kept his cash and jewellery and about the alarm code and door lock code of his business premises. He was threatened with violence and again felt an object pressed against his temple. The victim told the intruders the code to the alarm and door lock. He gave them the safe key and told them that the swipe key was in his vehicle. His wrists and ankles were tied with belts. The victim heard one of the intruders leave the house and then heard a car drive off. 10 The applicant's role was to wait outside the premises and keep a lookout. 11 Later on in the early hours of the same morning, the victim's store was broken into. The alarm was deactivated and entry was gained by use of the key code. A video was removed from the closed circuit television monitor within the office. The safe was accessed using the key taken from the victim's house and an amount of $58,557 in cash was removed. 12 Whilst the victim was bound he overheard a number of telephone conversations which suggested that the intruders who had remained were communicating with the person or persons who had entered the store. About half an hour later, the victim heard what he believed to be the same vehicle he had heard earlier return to his home. He was told by the intruders to wait a couple of hours and that they would telephone triple 0. The intruders then left. The victim was able to free himself and alert police. 13 The applicant had been employed at the victim's grocery store between 4 September 2003 and 30 April 2004. 14 The offences of money laundering on the Form 1 concerned the electronic transfer of money which was stolen in the commission of the offence being count 3 and the use of the stolen money to purchase a motor vehicle. 15 The applicant, who was born on 5 January 1976, was raised in India. He came to Australia in September 1996 to study. He had completed his secondary schooling in India at the age of 17. He left Australia in October 1999 but returned on a student visa in November of that year. Following his arrival in Australia he had been employed in various occupations. It seems that he had completed a Bachelor of Arts degree in 1998 from the University of Dehli by correspondence whilst he resided in Australia. He had a child who was about two years old with his partner who remained supportive of him. 16 Both the pre-sentence report and the psychologist's report which were tendered during the proceedings on sentence referred to the applicant's gambling problem. He had told the psychologist that he began to gamble in 1999 and became addicted within two months. He had accumulated debts as a result of his gambling. He said that he stopped gambling in 2005 when his partner became pregnant and had not gambled since. The author of the pre-sentence report wrote that although the applicant had acknowledged a problem with gambling he had taken no remedial action either in the community or while on remand to address this problem. 17 The applicant told the psychologist he began to have a problem with alcohol in 2003 which lasted for about one and a half years and had moderated his drinking from about mid 2004. The psychologist noted that he had not undertaken any alcohol rehabilitation. Psychometric testing which was conducted by the psychologist revealed that the applicant was of above-average intelligence. Formal testing indicated that the applicant had a low likelihood of recidivism. 18 His Honour was of the view that the applicant had good prospects of rehabilitation and was unlikely to re-offend. At the time of sentence the applicant was 32 years old. The pre-sentence report reveals that he was on a bridging visa and his ongoing status in Australia was uncertain. He has no prior criminal convictions. For the pleas of guilty his Honour allowed a utilitarian discount of 15 percent. His Honour found special circumstances. 19 The first ground of appeal complains that the Judge erred in that considering the principle of totality he partly accumulated the sentence on counts 2 and 3 whereas in the proper exercise of his sentencing discretion the Judge should have imposed concurrent sentences. The applicant submitted that those sentences were committed on the same day and were, in reality, one episode of criminality committed in a short space of time. 20 This Court's attention was drawn to what was said by Howie J in Cahyadi v Regina [2007] NSWCCA 1 at [27]: "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 21 It was said for the applicant that the sentence on count 3 comprehends and reflects the criminality for the offence on count 2 and the sentences should have been concurrent. 22 It is evident from the Judge's sentencing remarks that he carefully considered the principle of totality. His Honour considered that he was obliged to fix an appropriate sentence for each offence and then to consider questions of concurrence or accumulation as well as the question of totality: Pearce v The Queen (1998) 194 CLR 610. 23 His Honour said (ROS) at 30: "In considering questions of accumulation and totality, I have particularly taken into account also that the offences in count two and three form part of an unbroken course of conduct." 24 The sentence for count 2 was partially accumulated on count 3 commencing as it did 18 months after the commencement of the sentence for count 3. 25 His Honour's view that the offences in counts 2 and 3 formed part of an unbroken course of conduct did not mandate the imposition of concurrent sentences. Whilst the intrusion into the victim's bedroom (the subject of count 2) was plainly designed to obtain information to enable the victim's store to be broken into, the criminal acts which were involved in the commission of this offence were of themselves of a serious kind. The break and entering into the victim's store involved separate criminal acts which involved the removal of $58,551 in cash. 26 The Judge found that the applicant's role was that of a lookout. 27 It was, in my opinion, open to the Judge to determine that the sentence for either of counts 2 or 3 could not encompass the criminality of both offences. I do not detect any error in the partial accumulation of the sentences and Ground 1 of the appeal is rejected. 28 The remaining ground of appeal is the applicant's complaint that the sentences imposed were manifestly excessive. In oral submissions, it was submitted for the applicant that the total sentence of 10 years 6 months was a crushing one. 29 The totality principle is designed to avoid a court imposing a "crushing sentence" in the sense that "it will induce a feeling of hopelessness and destroy any expectation of a useful life after release": R v MAK, R v MSK [2006] NSW CCA 381 at [17]. 30 In a considered judgment, the Judge detailed the gravity of the offending which his Honour found was not diminished by the fact that the applicant's role could be described as a 'lookout'. As the Judge pointed out, the applicant was involved in a joint criminal enterprise and his role was fundamental to the carrying out of the offences. His Honour was mindful that the offences involved successful business persons and called for a strong measure of deterrence. 31 The overall sentence, whilst a heavy one, is not, in my opinion, a crushing sentence. I am not persuaded that the sentence was outside the legitimate range of sentencing discretion. 32 The Court was referred to the ongoing uncertainty of the applicant's status in Australia upon release. It is not for this Court to speculate as to the steps which might be taken by the Commonwealth authorities upon his release or whether the uncertainty of his status might impact upon his eligibility for release to parole. 33 Accordingly, I propose the following orders: 1. Leave to appeal against sentence be granted; 2. Appeal dismissed. 34 GROVE J: I agree with Price J. 35 BUDDIN J: I also agree. 36 GROVE J: The orders of the Court will therefore be as proposed by Price 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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