AUIMATAGI v R [2011] NSWCCA 248

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AUIMATAGI v R [2011] NSWCCA 248 Hearing dates: 1 November 2011 Decision date: 17 November 2011 Before: McCLELLAN CJ at CL at 1 ADAMS J at 2 HOEBEN J at 3 Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - conspiracy to commit a robbery while armed with an offensive weapon - whether sentencing judge could take into account as an aggravating factor that the offence was to be committed in company - whether sentence passed was manifestly excessive - to what extent should the commencement date of the sentence have been backdated - parity. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Hayek [2010] NSWCCA 139 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; 106 A Crim R 149 R v Sok [2000] NSWCCA 121 Regina v Yildiz [2006] NSWCCA 97, (2006) 160 A Crim R 218 Category: Principal judgment Parties: Leeroy File Auimatagi - Applicant Crown - Respondent Representation: Mr I Todd - Applicant Ms V Lydiard - Respondent Crown B Sandland, Legal Aid NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2009/261957 Decision under appeal Date of Decision: 2010-11-26 00:00:00 Before: English DCJ File Number(s): 2009/261957

Judgment 1McCLELLAN CJ at CL: I agree with Hoeben J 2ADAMS J: I agree with Hoeben J. 3HOEBEN J: On 21 May 2010 the applicant pleaded guilty before the Penrith Local Court that between 12.10am and 2.20am on 25 November 2009 at Blacktown he did conspire to rob the Quix Mobile Service Station of certain property while being armed with an offensive weapon. 4The offence of robbery while armed with an offensive weapon is an offence contrary to the provisions of s97(1) of the Crimes Act 1900. The penalty for conspiracy to commit an offence is at large and is a common law offence. It was common ground that the proper approach to sentence on such a charge is to have regard to the maximum penalty prescribed for the substantive offence which in this case is imprisonment for 20 years. 5The applicant came to be sentenced before English DCJ on 26 November 2010. The applicant asked the sentencing judge to take into account a Form 1 matter of possessing the means of disguising the face with intent to commit an indictable offence, namely armed robbery, contrary to s114(1)(c) of the Crimes Act 1900. 6The applicant was sentenced to a term of imprisonment with a non-parole period of 2 years commencing 24 February 2010 and expiring 23 February 2012 with a balance of term of 1 year and 9 months expiring 23 November 2013. 7The applicant seeks leave to appeal from the severity of this sentence upon the following grounds: (1) That the court below fell into error in finding on a charge of conspiracy to commit armed robbery that being in company was an aggravating factor. (2) That the court below was in error in not backdating the commencement of the sentence for the subject offence to 25 November 2009. (3) That the court below fell into error on the issue of parity in sentencing, as between the applicant and other co-offenders, named Iose and Faleono. (4) That the sentence was manifestly excessive. (5) That the Court below erred in failing to vary the non-parole period pursuant to s44 of the Crimes (Sentencing Procedure) Act 1999 despite finding that there were special circumstances. Factual background 8Those involved in the conspiracy, in addition to the applicant, were Moses Faleono (Faleono) who was sentenced at the same time as the applicant, Poe Tuigamala (Tuigamala), Eddie Isaia (Isaia) and Aotasi Iose (Iose). 9On 24 November 2009 the applicant, Iose and Faleona went to the movies at Parramatta. After the movie, they met with Isaia. From there the group dispersed and reunited outside the Merrylands train station. At some time after 10pm the group then consisted of the applicant, Iose, Faleona, Tuigamala and Isaia. Iose was called over and asked by the applicant if he wanted to be involved in "an AR", which he understood to be an armed robbery, and he agreed. 10The group then drove to an address in Guildford where they asked the resident, Mr Ahokava, if they could borrow a car. They borrowed a vehicle, registration number AV 70 PG. Iose drove that vehicle in company with Mr Ahokava and the applicant. Faleono drove his own vehicle with Isaia and Tuigamala. The applicant directed Iose to drive to Woolworths Wentworthville. There Iose and Tuigamala purchased a number of pairs of Ansell high flex gloves in a variety of colours. They were recorded on CCTV. 11The group continued to an address in Seven Hills. That was the home of a person known as Lima. Lima elected to stay at home along with Ahokava because his parents would want to know his whereabouts. At the request of the applicant, Lima supplied clothing for the purpose of disguise. Faleono and Isaia carried a brown basket to the vehicle and placed it in the back of the vehicle. The applicant then claimed to know of an "ideal location" to commit the armed robbery. 12The applicant directed Faleono to drive to Clare Street at Blacktown. The vehicle was driven by Faleona with Iose seated behind the front passenger seat. From a location in Clare Street they could best observe the Quix Service Station. In the opinion of the applicant that was the best location as there was minimal traffic in the area and it would yield a good result. 13The group engaged in planning the execution of the armed robbery. Iose distributed gloves, a black balaclava and a mask based on the movie "Scream". Faleono took the Scream mask and Tuigamala took the balaclava. All persons in vehicle AV 70 PG took a pair of gloves. Iose placed the gloves on his hands. Further conversation ensued as the group watched as customers entered and left the service station. 14The plan involved Iose walking into the store and falling over to get the attendant to come out from behind the counter, hiding near the icebox until a customer entered the store so the group could then run inside. In discussing the method of entry and the execution of the robbery, the group is said to have "pressured" Iose to take the knife and go into the store first. He ultimately declined. 15On the evening of 24 November 2009 Sergeants Friend and Pilarski were patrolling the Prospect area. While driving west along Clare Street at around 12.05am on 25 November, they saw a white coloured motor vehicle parked parallel to the kerb outside 75 Clare Street. 16They observed a number of persons in the vehicle. They saw a person described as being of Islander appearance approach the vehicle. That person was the Applicant. They noticed a white coloured cloth around his right hand. There was an exchange between the police and the occupants of the vehicle relating to what they were doing. They informed the police that they were helping someone to move from Guildford to Seven Hills. The police informed the group that they had reasonable suspicions about their intentions and intended to search the motor vehicle. Police located the black balaclava, a number of pairs of Ansell high flex gloves and two knives. One was 30 cms in length and the other had a blade that was 20 cms in length. The occupants of the vehicle were placed under arrest and taken to Blacktown Police Station. 17Iose was interviewed twice. He admitted to being involved in the planning of the robbery and he told the police who was driving, who purchased the gloves, where they were purchased, who brought the balaclava, who brought the mask and about stopping at someone's house for the purpose of getting a change of clothing which was said to be at the initiative of the applicant. He told the police about the applicant's contribution to the planning, namely that all participants were to enter the service station at the same time so as to bombard the service station attendant, the general whereabouts of the people involved, what times they joined the enterprise and the amount of time spent planning, namely 30 to 40 minutes. 18When the applicant was interviewed he denied the allegations when they were put to him. When Faleono was interviewed, he stated that he parked where he had because he needed to rest. He said that he had been driving for some time and had a headache. He denied knowledge of the items found in the car. When the allegation that he was involved in the planning of the robbery was put to him, he stated that he did not wish to talk about it. Remarks on sentence 19Her Honour noted that the applicant was 20 years of age at the time of sentence, having been born in November 1990. He was 19 at the time of the offence. The applicant gave evidence in the sentence proceedings. At the time of the offence, he was on probation in relation to an earlier offence. 20The applicant had a bad criminal record. On 17 March 2009 in the Parramatta Children's Court he was convicted of one count of assault with intent to rob, one count of affray and four counts of robbery in company. He received a probation order, a community service order and a suspended sentence in respect of those matters. On 2 February 2010 he was sentenced in the Parramatta Children's Court in respect of two counts of robbery in company. He was called up in respect of these counts when arrested for this offence and sentenced to a non-parole period of 3 months commencing 24 November 2009 and expiring 23 February 2010. 21The applicant was arrested on 20 December 2008 and held in custody until granted bail on 21 December 2008. He re-entered custody on 24 November 2009 and has remained in custody since then. 22In relation to his subjective case, her Honour noted that the applicant had been born in New Zealand and came to Australia when he was aged 15. He arrived with his father and stepmother. Before his incarceration he had been living with friends, having been asked to leave the family home because he was unemployed and was not actively seeking employment. 23The applicant completed his year 10 certificate at TAFE. He has performed casual labouring work in factories in the past. He was unemployed at the time of the offence. He had been abusing alcohol since the age of 15 and admitted to binge drinking. He had been smoking cannabis since the age of 17. 24His motivation for committing the offence was because "he just needed money". Since he has been in custody, he has been participating in drug and alcohol counselling and anger management programs, but has been reported as being disruptive at times. 25Her Honour noted from the Probation and Parole report that he had "little insight" into the impact of his offending behaviour on the potential victims. By the time he came before her Honour, however, he said that he appreciated how serious the offence was. In that regard, her Honour found that he was remorseful and contrite. Because he pleaded guilty at the earliest opportunity, her Honour allowed a 25 percent discount for that plea. Her Honour found that his prospects of rehabilitation were reasonable. She opined: "It just may well be that his time spent in adult custody has been the wake up call that he needs ..." 26In relation to the part played by the applicant, her Honour found: "This offender was clearly the instigator of this conspiracy on the night. It was his idea to carry out the armed robbery, he was a passenger in a vehicle driven by a co-offender. It was this offender who instructed the driver where to go. It was this offender who instructed the driver to stop at Woolworths for the purpose of purchasing gloves. It was he who instructed Mr Lima to supply clothing for the purpose of disguise. It was he who chose the Quix Service Station and directed the others where to park in order to observe the comings and goings of the customers at the service station and it was he who was first approached by police and who already had something wrapped around his hands, no doubt to prevent finger prints being left on any surface which may have been touched." (ROS 10.5) 27Her Honour used as her start point the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; 106 A Crim R 149. She noted that the judgment related to a young offender with little or no prior criminal antecedents, the use of a weapon capable of inflicting serious injury, a limited degree of planning, a real threat of violence, a vulnerable victim being a service station attendant or the like, a late plea of guilty and a strong Crown case. Her Honour noted that for such persons Henry suggested a head sentence of 4 to 5 years. 28Her Honour found that there were distinguishing features between the guideline judgment and this offence. On the one hand, her Honour noted that she was considering a conspiracy, where the planned offence was not in fact carried out. On the other hand, the applicant had significant criminal antecedents and was on conditional liberty at the time. In view of his record, her Honour observed that any leniency extended towards him must be tempered. Her Honour found that although there was some degree of planning, it was not particularly sophisticated. 29In relation to parity, her Honour said: "The issue of parity creates some difficulty. Mr Iose received a benefit for assistance given to police. His head sentence, before discount, was one of 4 years imprisonment. Mr Isaia and Mr Tuigamala were dealt with in the Children's Court. Both received custodial penalties. Mr Faleono suffers from a significant brain injury which reduces his moral culpability. Mr Auimatagi was the instigator and the main driving force, he was on conditional liberty at the time and had significant juvenile antecedents and a not particularly impressive past in abiding by orders of the Children's Court. Taking all those matters into account, only sentences of custody will satisfy the requirements of general and in respect of Mr Auimatagi special deterrence. The role of Mr Faleono was similar to that of Mr Iose, however, the nature of his intellectual impairment reduces his moral culpability as I have said. That is a matter I have taken into account. Mr Auimatagi's culpability, however, was much greater." (ROS 12.3) 30Her Honour made a finding of special circumstances in favour of the applicant because this was his first time in adult custody. Grounds of Appeal 1, 4 and 5 31In relation to Ground 1, the applicant focused on the following statement by her Honour when setting out those matters which distinguished this case from the guideline judgment in Henry: "There are distinguishing features between the guideline judgment and this offence of course because this offence is one of conspiracy to commit an offence which was not in fact carried out. It was fortunately foiled by the police. This offence was also an offence committed in company. " (ROS 11.4) 32The applicant submitted that this comment revealed error in that her Honour took into account as a matter of aggravation something which was an element of the offence. The applicant submitted that a conspiracy of its nature involved being in company with at least one other person. 33In relation to manifest excess, the applicant submitted that when one made allowance for the 25 percent discount for the early plea, the start point for the head sentence must have been 5 years. He submitted that such a head sentence was excessive in that it failed to take into account that the offence had not actually occurred, his age, his contrition and remorse and his reasonable prospects of rehabilitation. Consideration 34In relation to Ground of Appeal 1, it is correct that more than one person is needed for a conspiracy to take place. Here, however, the applicant was charged with conspiracy to commit a robbery while armed with an offensive weapon. He was not charged with conspiracy to commit a robbery while in company. In those circumstances, the fact that the robbery (had it proceeded) was to be committed "in company", was a matter which could be properly taken into account by her Honour as a matter of aggravation. 35In R v Sok [2000] NSWCCA 121, RS Hulme J (with whom Dowd J agreed) said: "17 But there are also some features of the applicant's offence which do not fall within the seven characteristics adopted in R v Henry and which tend to aggravate her criminality. There were two offenders, not just one. The presence of either company or an offensive weapon distinguishes an offence under s97 from the lesser offence of simple robbery under s94. Other things being equal, the presence of both might reasonably be thought to make an offence worse than one where only one was present. ..." 36There is another line of authority which supports her Honour's approach. In Regina v Yildiz [2006] NSWCCA 97, (2006) 160 A Crim R 218 Simpson J (with whom Adams and Hoeben JJ agreed) said: " 37 ... By s21A(2), the fact that an offence is part of a planned or organised criminal activity is a matter that a sentencing court is obliged to take into account as an aggravating feature. But, by the suffix to that subsection, the court is expressly enjoined against taking into account any aggravating feature if it is an element of the offence charged. That injunction has been extended to circumstances that are "an inherent characteristic" of the offence charged (see, for example, Elyard v The Queen [2006] NSWCCA 43; per Howie J. An example is the disregard for public safety implicit in dangerous driving offences. But this principle does not mean that the degree to which the "inherent characteristic" exists in relation to a particular offence may not, where it exceeds the norm, be taken into account as an aggravating factor. ... " 37It follows that this was a matter which her Honour could properly take into account as an aggravating feature. This ground of appeal has not been made out. 38In relation to manifest excess, the relevant test was set out by McCallum J (with whom Simpson and Johnson JJ agreed) in R v Hayek [2010] NSWCCA 139 where her Honour said: "37 The principles to be applied in determining whether a sentence is manifestly excessive are well known. As noted in the written submissions on behalf of the Crown, the task is not for this Court to decide whether it would have exercised its discretion differently. The applicant must demonstrate that the sentence was "unreasonable or plainly unjust": Vuni v R [2006] NSWCCA 171 at [33], citing Dinsdale (2002) 202 CLR 321 at 325; endorsed in Stewart v R [2009] NSWCCA 152 at [16] - [17]." 39When one has regard to the applicant's leadership role in the offence, that he was on conditional liberty when he committed the offence and his relatively unimpressive subjective case, that test is not met. This is particularly so when one has regard to his poor criminal record where many chances of rehabilitation were given to him which he did not take up. In those circumstances, one has to give considerable weight to the protection of the community, which in this case makes personal deterrence an important factor. 40It is clear from that part of her Honour's remarks on sentence, on which the applicant relied for Ground of Appeal 1, that her Honour clearly understood and took into account the difference between a circumstance where the offence has actually occurred and a conspiracy to commit an offence which has been foiled by the police. It cannot be said that her Honour was unaware of or failed to take into account that distinction. 41This ground of appeal has not been made out. 42Ground of Appeal 5 was but faintly pressed. There were good reasons for this. Having found special circumstances, her Honour set the ratio between the non-parole period and the head sentence at 53 percent. Quite clearly, her Honour gave effect to that finding. This ground of appeal has not been made out. Ground of Appeal 2 43In relation to the commencement date for his sentence, her Honour said: "He did not go into custody on 25 November 2009. He was called up in respect of an earlier robbery in company offence and he was ordered to serve a 3 month non-parole period which expired on 23 February 2010. The Magistrate took into account one day in custody and backdated the sentence to commence therefore on 24 November 2009. This offence was committed 6 months after Mr Auimatagi had been extended significant leniency by the Children's Court when he was placed on probation and a suspended control order. It is therefore appropriate that he serve the non-parole period imposed before he commences to serve the sentence to be imposed for this offence. His sentence in respect of this matter will therefore commence on 24 February 2010." (ROS 13.1) 44The applicant submitted that there was an internal inconsistency in her Honour's reasoning in that earlier in her remarks on sentence she had said that his juvenile record did not "aggravate this offence" but then when considering the commencement date for the sentence, had taken into account his earlier offending. Consideration 45There is no inconsistency in her Honour's approach. In her earlier observation her Honour was commenting generally on the overall effect of his poor criminal record. When dealing specifically with the commencement date of the sentence, her Honour took into account the important fact that on a date only 6 months before the commission of this offence, the applicant had been sentenced for another robbery offence and had received considerable leniency from that sentencing court. This was a relevant consideration and one which her Honour could properly take into account. 46While it was open to her Honour, had she so chosen, to backdate the commencement date of the applicant's sentence to 24 November 2009 she was not obliged to do so. No sentencing principle required such an approach. In choosing the commencement date for the applicant's sentence her Honour set out reasons which were logical, compelling and relevant. 47This ground of appeal has not been made out. Ground of Appeal 3 48When putting his submissions as to lack of parity, the applicant accepted that there were difficulties in making that argument. The co-offender, whose sentence was said to give rise to a justifiable sense of grievance, was Iose. He was 18 at the time of the offence and was given a sentence of 1 year and 7 months imprisonment, suspended by way of a s12 bond. 49The applicant submitted that there was a significant difference between the start point for the head sentence awarded to Iose (4 years) and that awarded to the applicant (5 years). The applicant submitted that even allowing for the greater part played by the applicant in the offence, the disparity in head sentences of 12 months was not justified and that the principle of parity had not been observed. Consideration 50The applicant's submission is not made out. The difference in roles between the applicant and Iose was substantial. In addition, Iose's subjective case was much stronger than that of the applicant. He had no criminal record. In her remarks on sentences (p7, 30.8.2010) when sentencing Iose her Honour said: "He was a person of good character and whilst that is a matter referred to in the guideline judgment I find in the unusual circumstances of this case he is entitled to call into account that otherwise good character and that is because he had taken steps to disengage himself by refusing to carry the knife into the premises and by trying to dissuade the others from carrying out the crime." 51Despite these important differences, there was only a 12 month difference in the starting points for the sentences passed on each of them. Accordingly, there was no basis for any justified sense of grievance on the part of the applicant and this ground of appeal has not been made out. Conclusion 52The orders which I propose are: (i) Leave to appeal be granted. (ii) The appeal be dismissed.