Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Baghdadi v R [2012] NSWCCA 212 Hearing dates: 18 September 2012 Decision date: 30 November 2012 Before: Macfarlan JA at [1] Johnson J at [2] Davies J at [3] Decision: (1) Extend the time for the Applicant to appeal against the sentence imposed by Judge Armitage to 14 September 2012. (2) Grant leave to appeal. (3) Allow the appeal. (4) In lieu of the sentence imposed by Judge Armitage in respect of Count 3 sentence the Appellant to a non-parole period of 5 years commencing 9 March 2011 and expiring 8 March 2016 with a balance of term of 3 years expiring 8 March 2019 (5) Grant leave to appeal from the sentences imposed by Judge Finnane. (6) Appeal allowed. (a) In lieu of the sentence for Count 1 sentence the Appellant to a non-parole period of 5 years to commence 9 March 2012 and expiring 8 March 2017 with a balance of term of 3 years to expire 8 March 2020; (b) In lieu of the sentence for Count 2 sentence the Appellant to a fixed term of 2 years imprisonment to commence 9 March 2012 and expiring 8 March 2014; (c) In lieu of the sentence for Count 3 sentence the Appellant to a non-parole period of 5 years to commence 9 March 2014 and expiring 8 March 2019 with a balance of term of 3 years expiring 8 March 2022; (d) In lieu of the sentence for Count 4 sentence the Appellant to a fixed term of 2 years imprisonment to commence 9 March 2014 and expiring 8 March 2016; (e) In lieu of the sentence for Count 5 sentence the Appellant to a non-parole period of 4 years to commence 9 March 2016 and expiring 8 March 2020 with a balance of term of 4 years expiring 8 March 2024. Catchwords: CRIMINAL LAW - sentence - carjacking offences - applicant incarcerated for similar offences at time of sentence for present offences - finding of special circumstances - effect of accumulation on ratio between non-parole period and total sentence - principle of totality - relevance of all sentences to totality principle and effect on statutory ratio - supervision on parole of serious offender Legislation Cited: Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Administration of Sentences) Regulation 2008 Criminal Appeal Rules Cases Cited: Arnold v R [2011] NSWCCA 150 Baghdadi v R [2011] NSWCCA 234 Baghdadi v R (No. 2) [2012] NSWCCA 77 Connelly v R [2012] NSWCCA 144 Jinnette v R [2012] NSWCCA 217 R v Baghdadi [2008] NSWCCA 239 R v MAK (2006) 167 A Crim R 159 Wakefield v R [2010] NSWCCA 12 Category: Principal judgment Parties: Abdul Baghdadi (Applicant) Crown Representation: Counsel: S Odgers SC & K Edwards (Applicant) S Dowling (Crown) Solicitors: Elie Rahme & Associates (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2009/9151 Decision under appeal Date of Decision: 2010-06-29 00:00:00 Before: Armitage DCJ Finnane DCJ File Number(s): 2009/9151 Judgment 1MACFARLAN JA: I agree with Davies J. 2JOHNSON J: I agree with Davies J. 3DAVIES J: On 15 February 2010 the Applicant pleaded guilty to five offences as follows: Count 1: Aggravated assault with intent to take or drive a motor vehicle on 18 August 2006 contrary to s 154C(2) Crimes Act 1900. The maximum penalty for this offence is 14 years imprisonment and there is a standard non-parole period of 5 years. Count 2: Fire a firearm in a public place on 18 August 2006 contrary to s 93G(1)(b) Crimes Act 1900. The maximum penalty for this offence is 10 years imprisonment. Count 3: Aggravated assault with intent to take or drive a motor vehicle on 22 August 2006. Count 4: Fire a firearm in a public place on 22 August 2006. Count 5: Aggravated assault with intent to take or drive a motor vehicle on 23 August 2006. 4On 29 June 2010 the Applicant was sentenced by Judge Finnane as follows: Count 1: A non-parole period of five years to commence on 8 March 2014 and expiring on 7 March 2019 with a balance of term of three years to expire on 7 March 2022. Count 2: Fixed term of two years imprisonment to commence 8 March 2014 and expire 7 March 2016. Count 3: Non-parole period of five years to commence 8 March 2016 and expire 7 March 2021 with a balance of term of three years to expire on 7 March 2024. Count 4: Fixed term of two years imprisonment to commence 8 March 2016 and expire 7 March 2018. Count 5: Non-parole period of five years to commence 8 March 2018 and expire 7 March 2023 with a balance of term of three years to expire on 7 March 2026. 5There was therefore a total period of imprisonment of 12 years consisting of a non-parole period of nine years commencing 8 March 2014. 6The reason for the commencement of the first of the sentences on 8 March 2014 was that the applicant was then serving sentences imposed by Judge Ellis in the District Court and, later, by Judge Armitage. The history in relation to the prior offences is of relevance to the determination of the present appeal. 7On 18 December 2007 the Applicant was sentenced by his Honour Judge Ellis at the Parramatta District Court following pleas of guilty to two counts of armed robbery, aggravated carjacking (armed with an offensive weapon), aggravated armed robbery and specially aggravated break, enter and steal. The Crown appealed against the sentences imposed. On 14 October 2008 this Court upheld the appeal and imposed an aggregate sentence of 13 years with an effective non-parole period of nine years. The eligible parole date was 8 March 2015: R v Baghdadi [2008] NSWCCA 239. 8On 21 August 2009 Judge Armitage sentenced the Applicant after trial for one count of assault with intent to rob while armed with a dangerous weapon, and robbery whilst armed with a dangerous weapon. In respect of the first count he was sentenced to a fixed term of 4 years to commence on 9 March 2011. In respect of the second count he was sentenced to a non-parole period of five years to commence on 9 March 2012 and expire 8 March 2017 with a balance of term to expire on 8 March 2020. 9The Applicant was also sentenced in respect of a third charge of armed robbery on a separate indictment to which he had pleaded guilty. He was sentenced in relation to that count to a non-parole period of five years to commence on 9 March 2013 and expire 8 March 2018 with a balance of term of four years to expire on 8 March 2022. 10The Applicant appealed against the convictions after trial for which he was sentenced by Judge Armitage. On 26 October 2011 this Court ordered that the appeal be allowed, that the convictions be set aside and that the matter be remitted to the District Court for a new trial: Baghdadi v R [2011] NSWCCA 234. 11Thereafter, on 3 May 2012, this Court delivered judgment on an application by the Applicant under r 50C Criminal Appeal Rules in respect of the judgment delivered on 26 October 2011. The Court set aside some of the orders it had earlier made and in lieu thereof entered a verdict of acquittal on each of the charges: Baghdadi v R (No. 2) [2012] NSWCCA 77. 12The effect of that judgment was that the only remaining sentence of Judge Armitage was in relation to the armed robbery count to which the Applicant had pleaded guilty. For that offence he had been sentenced to a non-parole period of five years commencing on 9 March 2013 with a balance of term of three years expiring in 8 Mar 2021. The relevance of this is that the non-parole period was commenced on that date because Judge Armitage had commenced the non-parole periods for the two other offences, on which the Applicant was ultimately acquitted, on two earlier dates. 13The Notice of Application for Leave to Appeal against the sentences imposed by Judge Finnane was filed on 27 April 2012. There were six grounds of appeal five of which complained of the approach of the Sentencing Judge to the standard non-parole period and to the assessment of the objective seriousness of the offences, of his failure to deal with special circumstances, and of his approach to subjective features and prospects for rehabilitation. There was an additional ground complaining that the sentences both individually and in their total effect were manifestly excessive. 14In the week before the present appeal came to be heard the Applicant filed further submissions abandoning all of the these grounds of appeal and seeking leave to replace them with one ground of appeal as follows: The Sentencing Judge erred in failing properly to take into account the impact of cumulation of sentence on the relationship between the overall non-parole period and the overall term. 15In short, the Applicant submitted that there should be a parole period of six years whereas the Crown submitted it should be three years. The facts of the offences 16The first count relates to an offence on 18 August 2006. The victim was driving his Subaru WRX into Bankstown to do some banking. As he drove into South Terrace he was followed very closely by another vehicle in which the Applicant was seated with two other people. The Applicant's vehicle cut him off. 17The Applicant alighted from the rear driver's side of that vehicle, produced a black coloured hand gun, ordered the victim to get out of the car and invited him to consider whether he wanted to die. He then fired the gun that he was holding into the ground. That was the second count on the indictment. 18The Applicant then went to the driver's side of the vehicle, pointed the gun at the victim's head and demanded to know the PIN to operate the car. The victim gave a random number. The victim got out of the vehicle and the Applicant drove away. Because the wrong PIN was entered the vehicle stopped a short distance later and the Applicant disappeared. 19The third count occurred on 22 August 2006. Two men, who had finished work at a cinema complex at Auburn, walked to their car which parked in an underground car park in the complex. It was also a high performance car. One of them started the car. At that point the Applicant appeared with a handgun which he pointed at the driver and then fired a number of shots at the bonnet of the vehicle. That action constituted the fourth count. The driver managed to drive away in the vehicle and call the police. 20The fifth count occurred at a carwash on 23 August 2006. A Ford Ghia was being cleaned by an employee of the carwash. The Applicant and another man walked up to an employee who was cleaning and drying the car. The Applicant ordered him to get out of it otherwise he would blow his head off. The other man with the applicant was holding a gun. The other man also threatened the owner of the carwash with this gun. The Applicant and the other man then got into the car and drove it away. Remarks on Sentence 21His Honour first characterised the sentences as mid-range offences but at a later point in his Remarks described them as worse than mid-range offences. 22His Honour made reference to the Applicant's subjective circumstances including the fact that he had been in trouble with the law since 2001. At some point he became involved with drugs as a teenager. That led to his involvement in robberies and other serious offences. 23His Honour made reference to evidence from the Applicant's brother who his Honour thought was genuine and would do his best to assist the Applicant. He made reference to two reports from psychologists which demonstrated some motivation for changing his behaviour and also some remorse. In relation to rehabilitation his Honour said: There has to be some hope for rehabilitation as there is for anybody, I cannot say that I could quantify that. 24He also said that because the Applicant was a relatively young there was a need to ensure that he did not serve too long a sentence. Accordingly, his Honour decided to impose a non-parole period of 5 years for each of the aggravated assaults. In doing so he said that he would have imposed a significantly longer non-parole period had the Applicant been convicted after a trial. As the firearm offences were committed whilst the other offences were being committed his Honour made those entirely concurrent with the more serious offences in each case. 25His Honour then proceeded to impose the sentences I have set out earlier. The Applicant's submissions 26The Applicant submitted that the overall sentence imposed by Judge Finnane was a non-parole period of nine years with an additional term of three years. The ratio between those is 75%. However, in relation to the individual offences his Honour had achieved a ratio of 62.5%. The Sentencing Judge did not advert to the impact of accumulation of the sentences on the ratio he had thought appropriate to the individual sentences and the Applicant submitted that this supported an inference of error. 27The Applicant further submitted that the pre-existing overall sentence at the time the Sentencing Judge sentenced the Applicant was 12 years non-parole with an additional term of four years. The ratio in relation to that pre-existing overall sentence was therefore 75%. 28The Applicant further submitted that as a result of the successful appeal by the Applicant against the convictions in the trial heard before Judge Armitage the commencement date of the third sentence imposed by Judge Armitage would have to be adjusted from 9 March 2013 to 9 March 2011. Due to the need to adjust the commencement date of the sentence imposed by Judge Armitage it was necessary for the Applicant to file a further Application for Leave to Appeal in relation to that sentence. Such leave was granted at the hearing. 29The Applicant submitted that if and when the commencement date was adjusted it would mean that the pre-existing sentence would then be 10 years non-parole with an additional term of four years producing a ratio of 71%. The Applicant submitted that if the current overall sentences were then adjusted the overall sentence would then be 15 years non-parole with an additional term of three years producing a ratio of 83%. 30The Applicant pointed to what was said by the Crown Prosecutor at the sentencing hearing before Judge Finnane that the period on parole should be increased from the four years established by the existing sentences. In fact, it appears that by reason of his existing sentences at that time the period on parole was fixed at 5 years. Nothing in particular turns on that error apart from the support it provides to the Applicant for a longer parole period for the present sentences. 31There is no challenge to the overall head sentence imposed by Judge Finnane. Is error shown? 32This Court has said on a number of occasions that where the effect of accumulating the sentences results in an increase in the statutory ratio a failure of the Sentencing Judge to advert to the matter in his Remarks on Sentence will lead to an inference that the matter has been overlooked: Wakefield v R [2010] NSWCCA 12 at [26]; Arnold v R [2011] NSWCCA 150 at [32]-[33] and Connelly v R [2012] NSWCCA 144 at [32]. 33Further, Judge Finnane had made reference to the fact of the Applicant's rehabilitation, to what he had told the psychologist about being prepared to engage in illicit drug intervention and to the assistance that his Honour thought that his brother would be able to provide. It seems likely from those matters and the variation to the statutory ratio his Honour imposed in respect of the individual offences that his Honour overlooked the arithmetical effect of accumulation. In doing so, there has been an error in the way the sentences have been accumulated. Is any lesser sentence warranted? 34The abandonment of all but one of the grounds of appeal means that there are now only two matters for consideration by this Court. First, whether an order should be made to bring forward the one remaining sentence imposed by Judge Armitage by reason of the acquittal of the Applicant on the other two counts of which he had been found guilty at trial. Flowing from that determination is whether the sentences imposed by Judge Finnane should similarly be brought forward. Secondly, whether there should be a reduction in the overall non-parole period imposed by Judge Finnane. 35Judge Armitage must have had regard to the totality principle when sentencing the applicant for all three offences. The Applicant was, at the time those sentences were directed, already serving sentences imposed by this Court on 14 October 2008. Judge Armitage structured his sentences so that the first of them, a fixed term, commenced one year after the last sentence imposed by this Court. The second commenced a year later and the third a year after the second commenced. 36It seems plain, therefore, that if he had been sentencing only for the third offence that sentence would have commenced one year after the last offence in respect of which this Court had earlier sentenced. 37Similarly, Judge Finnane commenced his sentence for Counts 1 and 2 one year after the commencement of Judge Armitage's third sentence. 38Where there has been a subsequent acquittal on two charges, and the sentences in respect of those charges occupied a middle period in a long succession of sentences, it will ordinarily be appropriate as a proper application of the totality principle to advance the commencement date for the following sentences for a period equal to the effective period of imprisonment represented by those offences. That effective period here was two years. 39Accordingly, the sentence for the third count before Judge Armitage will be varied to commence 9 March 2011 and expire 8 March 2016 with a balance of term of four years to expire 8 March 2020. 40Similarly, each of the sentences imposed by Judge Finnane will be varied to commence two years earlier. 41The effect of that variation is that the Applicant's overall non-parole period will now expire 8 March 2021 with a balance of term to expire 8 March 2024. 42It is in those circumstances that consideration must be given to the issue of the ratio of the non-parole period to the head sentence. 43In R v MAK (2006) 167 A Crim R 159 at [15] - [18] the Court identified two matters that are considered under the totality principle. First, severity may increase at a greater rate than an increase in the length of the sentence. Secondly, the principle is designed to avoid a crushing sentence. However, the Court warned also against giving the impression that "there is some kind of discount for multiple offending" (at [18]). 44The Applicant is a relatively young man being now aged 26 years. As noted earlier he has a wife and a young child. There are, and were before Judge Finnane, two reports from psychologists which, as his Honour noted, demonstrated some motivation for changing the Applicant's behaviour. Both of those psychologists encouraged a maximising of opportunity for the Applicant to be supervised in the community to ensure his rehabilitation. 45Under the existing sentencing regime the Applicant will be under supervision for three years. Ordinarily, there is a practical limit of three years' parole supervision which the Applicant may receive: Clause 228 Crimes (Administration of Sentences) Regulation 2008; Jinnette v R [2012] NSWCCA 217 at [107]. However, the position is otherwise if the Applicant is a serious offender. Section 3(1) Crimes (Administration of Sentences) Act 1999 defines "serious offender" relevantly as: (c) an offender who is serving a sentence (or one of a series of sentences of imprisonment) where the term of the sentence (or the combined terms of all of the sentences in the series) is such that the offender will not become eligible for release from custody, including release on parole, until he or she has spent at least 12 years in custody, 46The Applicant entered custody on 9 March 2006. Even with the bringing forward by two years of the sentences imposed by Judge Finnane he will not be released until 8 March 2021. Indeed, he becomes a serious offender if not released by 8 March 2018. Clause 228(2) provides: In the case of a serious offender, the Parole Authority may while the parole order is in force extend the period of supervision by, or impose a further period of supervision of, up to 3 years at a time. 47Accordingly, a shortening of the non-parole period would not be futile in terms of supervision to assist the Applicant's rehabilitation. 48The offences were very serious ones involving firearms which were fired at two of the incidents. The offences involved threats of violence which, given the firearms, are likely to have caused considerable fear in the victims. They were committed in company. They were part of a series of criminal acts committed over a two year period. Some offences for which he was sentenced by Judge Ellis and Judge Armitage involved carjacking using a similar modus operandi. Firearms were often involved. 49A reduction of the non-parole period by three years, which the Applicant seeks, would mean that Counts 3,4 and 5 would be served concurrently. There can be no justification for such a course. Count 5 was a separate offence. Its only ameliorating feature was that on that occasion the gun held by the co-offender was not fired. Such a reduction of the non-parole period would give a clear impression of discounting for multiple offending. 50In my opinion, it would be appropriate to reduce the non-parole period by one year in order to have regard to the first of the matters referred to in R v MAK concerning the increase in severity of the length of the sentence. That will result in an overall non-parole period of 8 years with the head sentence remaining at 12 years. When all sentences are considered together the Applicant will serve a non-parole period of 14 years with a head sentence of 18 years. 51This variation will enable an extra year's supervision to aid the Applicant's rehabilitation. Rehabilitation and adjustment may take time. The Applicant will be aged 33 at the expiry of his non-parole period having spent 14 years in custody. He is likely to be institutionalised. 52Matters of both general and personal deterrence are adequately accommodated in such a varied sentence. That is reinforced when the totality of the sentences imposed on the three separate occasions are regarded. Conclusion 53I propose the following orders: (1)Extend the time for the Applicant to appeal against the sentence imposed by Judge Armitage to 14 September 2012. (2)Grant leave to appeal. (3)Allow the appeal. (4)In lieu of the sentence imposed by Judge Armitage in respect of Count 3 sentence the Appellant to a non-parole period of 5 years commencing 9 March 2011 and expiring 8 March 2016 with a balance of term of 3 years expiring 8 March 2019 (5)Grant leave to appeal from the sentences imposed by Judge Finnane. (6)Appeal allowed. (a)In lieu of the sentence for Count 1 sentence the Appellant to a non-parole period of 5 years to commence 9 March 2012 and expiring 8 March 2017 with a balance of term of 3 years to expire 8 March 2020; (b)In lieu of the sentence for Count 2 sentence the Appellant to a fixed term of 2 years imprisonment to commence 9 March 2012 and expiring 8 March 2014; (c)In lieu of the sentence for Count 3 sentence the Appellant to a non-parole period of 5 years to commence 9 March 2014 and expiring 8 March 2019 with a balance of term of 3 years expiring 8 March 2022; (d)In lieu of the sentence for Count 4 sentence the Appellant to a fixed term of 2 years imprisonment to commence 9 March 2014 and expiring 8 March 2016; (e)In lieu of the sentence for Count 5 sentence the Appellant to a non-parole period of 4 years to commence 9 March 2016 and expiring 8 March 2020 with a balance of term of 4 years expiring 8 March 2024. ********** 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. Decision last updated: 03 December 2012