Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ghobrial v R [2012] NSWCCA 221 Hearing dates: 30 July 2012 Decision date: 12 October 2012 Before: Hoeben JA at [1] Johnson J at [2] Button J at [3] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - robbery in company - no exceptional circumstances - no failure to give appropriate weight to mitigating factors - no error in failure to suspend sentences - sentence not manifestly excessive CRIMINAL LAW - sentence appeal - robbery in company - finding of no exceptional circumstances evaluative judgment - whether error to be determined in accordance with House v King principles Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Supreme Court Act 1970 Cases Cited: Aoun v R [2011] NSWCCA 284 Elyard v R [2006] NSWCCA 43 DAO v R [2011] NSWCCA 63; (2011) 278 ALR 765 Hanania v R [2012] NSWCCA 220 House v The King [1936] HCA 40; (1936) 55 CLR 499 Ng v R [2011] NSWCCA 227 R v Blackman and Walters [2001] NSWCCA 121 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Kain [2004] NSWCCA 143 R v Kelly (1993) 30 NSWLR 64 R v Murchie [1999] NSWCCA 424; (1999) 108 A Crim R 482 R v Pham [2005] NSWCCA 94 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Thompson [2005] NSWCCA 340 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Yuksel; R v Sirtlan [2012] NSWCCA 84 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Yang v R [2012] NSWCCA 49 Category: Principal judgment Parties: Benjamin Samy Ghobrial (applicant) Regina (respondent) Representation: Counsel: D Dalton SC (applicant) J Girdham (respondent) Solicitors: Benjamin & Leonardo Lawyers (applicant) Solicitor for Public Prosecutions (respondent) File Number(s): 2011/40414 Decision under appeal Date of Decision: 2011-11-18 00:00:00 Before: Keleman DCJ File Number(s): 2011/40414 Judgment 1Hoeben JA: I agree with Button J and the orders which he proposes. 2Johnson J: I agree with Button J. 3Button J: On 18 November 2011 in the District Court at Parramatta, Judge Keleman SC sentenced Benjamin Samy Ghobrial ("the applicant") for one count of robbery in company. Pursuant to s 97 of the Crimes Act 1900, the applicable maximum penalty was imprisonment for 20 years. There was no standard non-parole period attaching to the offence. His Honour sentenced the applicant to a non-parole period of 1 year 3 months, with a parole period of 1 year 3 months. Accordingly, a head sentence of 2 years 6 months with a non-parole period of 1 year 3 months was imposed. Special circumstances were found that permitted a variation of the statutory ratio; if that had not been the case, the non-parole period would have been 1 year 10 months 2 weeks. 4The applicant seeks leave to appeal against that sentence to this Court. Objective features 5The following summary is based upon findings made in the remarks on sentence, themselves founded upon a statement of facts tendered in the proceedings on sentence and agreed between the parties. 6Put shortly, the applicant and two associates spent the night of Saturday 16 January 2011 gambling at a Leagues Club in the suburbs of Sydney. The Club closed at 6am the following morning. The victim and a friend of his attended the cashier's window in order to collect $900 in fifty dollar notes. 7The applicant and his two associates stood behind the victim and his friend in the queue. The three of them observed the victim to receive his cash. The applicant said to his two associates, "That's him". 8The victim and his friend walked to a nearby carpark. The three men followed them to their car. At that point, the applicant struck the victim to the back of his head with his right elbow. One of the associates of the applicant rushed over and assisted the applicant by holding the victim down and taking the $900 in cash. The two men decamped, picked up the third who was nearby, and left by car. The $900 was divided between them. 9The police were contacted and the three men were easily identified by way of CCTV and the fact that they had signed into the Club. 10On 2 February 2011, the applicant was arrested. 11One of the two associates of the applicant had pleaded guilty to concealing a serious indictable offence at the time the applicant stood for sentence before his Honour. The charge against the other associate was unresolved as at that date. Due to the fact that no ground of appeal refers directly or indirectly to their matters, they will not be discussed further. Subjective features 12The applicant engaged in an ERISP with police on arrest in which he made full admissions. He also expressed remorse at that point. 13The applicant pleaded guilty in the Local Court. He received a 25 per cent discount on his sentence in order to reflect the utilitarian value of that plea. That discount is not a point of contention in this Court. 14The applicant was born on 5 September 1989. Accordingly he was aged 20 as at the date of the offence and 21 as at the date of sentence. A happy and loving childhood had been marred by the gambling of his father and by the fact that the applicant suffered from Attention Deficit Hyperactivity Disorder ("ADHD"). The applicant was an excellent sportsman. However, when the applicant was aged 14 years, an aunt to whom he was so close that he regarded her as second mother attempted suicide. As a result she suffered severe brain damage and was in a vegetative state until she died two years later. The applicant was very badly traumatised by those events. He lost his commitment to sport and his schooling deteriorated markedly. He commenced to use illicit drugs. 15By the time of the commission of the offence, the applicant had moved out of home due to arguments with his father. He was living here and there and abusing drugs freely. On the night of the offence he had consumed, at least, cocaine, Xanax, and a bottle of bourbon. 16By the date of sentence, things had improved markedly. The applicant was living at home and getting along well with both his parents. He had in the previous months sought help from a drug and alcohol service. He had also been referred by the family general practitioner to a psychiatrist who was successfully treating his ADHD and his drug dependence. The applicant at that stage was working as a landscaper. 17The applicant had a very short criminal record, consisting as it did of only one conviction for possessing a prohibited drug and a driving offence. Aspects of sentence 18Senior counsel for the applicant (who also appeared for him in this Court) submitted to his Honour that exceptional circumstances had been made out that would permit the imposition of a sentence other than full-time imprisonment. He raised the possibility of a deferral of sentence pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999. His Honour indicated that he was not attracted to that option. His Honour also made it clear that he had great difficulty in accepting that exceptional circumstances had been established. 19In the remarks on sentence, his Honour found that the criminal record of the applicant did not disentitle him to leniency. His Honour also found that the prospects of rehabilitation of the applicant were, in light of the progress made, good. However, his Honour said: "Despite submissions to the contrary made on behalf of the offender, I am not satisfied that any of the offender's subjective circumstances (including his progress towards and prospects of rehabilitation) either when considered individually or in combination amount to exceptional circumstances that would warrant a course other than the imposition of a full time custodial sentence." Grounds 20Four grounds of appeal have been notified. I shall deal with each of them in turn. Ground One: "His Honour erred in failing to find exceptional circumstances." 21The importance of whether or not exceptional circumstances were found in this matter is that the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 is authority for the proposition that, absent such circumstances, a sentence of full-time imprisonment is to be imposed for the offence of armed robbery. That proposition merely restated what had been said in a long series of decisions of this Court. And that proposition has been long applied to sentencing for other forms of aggravated robbery, at least since the decision of this Court in R v Murchie [1999] NSWCCA 424; (1999) 108 A Crim R 482. 22Senior counsel for the applicant did not deny the parameters imposed by those longstanding authorities. Instead, he impugned the failure of his Honour to find exceptional circumstances. In particular, he submitted orally that the evaluative judgment made by a sentencing judge with regard to whether exceptional circumstances exist in a case such as this can just as easily be made by this Court. Accordingly, he submitted that the approach discussed in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 with regard to appeals to the New South Wales Court of Appeal should be adopted with regard to this question. In other words, senior counsel submitted that the finding made by his Honour could be overturned by this Court without the explicit identification of error at first instance. I will discuss the case to which senior counsel referred in more detail below. 23Counsel for the respondent submitted that the determination by the sentencing judge was a matter of discretion, and should be approached by this Court in the established way. Decision 24For a number of reasons, I respectfully reject the submission of senior counsel for the applicant as to the approach this Court should adopt. 25First, the proposition that this Court is a Court of error is very longstanding and very well established. With regard to appeals against conviction, s 6 of the Criminal Appeal Act 1912 makes it clear that a successful applicant must establish either that the verdict of the jury is unreasonable, or cannot be supported; or that there has been a wrong decision of any question of law in the court below; or that on any other ground whatsoever there was a miscarriage of justice. As for appeals against sentence, it has never been doubted that sentencing is an exercise of discretion with regard to which there is no single correct outcome. Accordingly, appeals against sentence to this Court are founded on the principles with regard to review of exercises of discretion enunciated in House v The King [1936] HCA 40; (1936) 55 CLR 499. That exercise may be sharply contrasted with, for example, appeals against sentence from the Local Court to the District Court of New South Wales. 26Secondly, within the sentencing discretion, there are various evaluative judgments that are made. Whether exceptional circumstances exist that would permit a sentence other than full-time custody with regard to an offence of armed robbery or robbery in company is but one example. Another is whether special circumstances have been demonstrated that permit variation of the statutory ratio between the head sentence and the non-parole period. Over a decade ago, in R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704, Spigelman CJ emphasised at [73] the very limited review of that question that will be undertaken by this Court. 27Thirdly, it is well established that findings of facts by a sentencing judge are reviewed by this Court in a similarly circumscribed way: see R v Kelly (1993) 30 NSWLR 64 and Aoun v R [2011] NSWCCA 284. 28Fourthly, the principles in Warren v Coombes to which this Court was referred arose from the construction of s 75A of the Supreme Court Act 1970, a portion of which is as follows: "(5) Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing." That is a provision that relates to the powers of the Supreme Court when it disposes of appeals against judgments of lower courts, or of single judges of the Supreme Court when it sits as the Court of Appeal. 29The plurality in Warren v Coombes discussed the nature of the rehearing created by s 75A of the Supreme Court Act. It was said at 551: "[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge." 30In short, the plurality judgment stated at 552 that in discharging its obligations, an appellate court must "decide the case - the facts as well as the law - for itself". 31However, an appeal brought pursuant to the Criminal Appeal Act is of a fundamentally different character from appeals from judgments where the civil jurisdiction has been invoked. An appeal pursuant to the Criminal Appeal Act is not a rehearing: see R v O'Donoghue (1988) 34 A Crim R 397. 32Therefore, I do not consider that the jurisprudence interpreting the scope of a "rehearing" provided for by s 75A of the Supreme Court Act supports the applicant's contention with regard to the disposition of an appeal against the severity of a sentence imposed by the District Court. Nor does it inform the disposition of any challenge to the exercise of an evaluative judgment by a sentencing judge such as a finding of exceptional circumstances in the context of this appeal. 33Fifthly, this Court recently moved toward the position that a review of a decision by a trial judge whether to permit a number of counts to appear in the one indictment, founded on the evidence in support of each being admissible in relation to another or others, on the basis of it being tendency or coincidence evidence, is to proceed in accordance with the principles contained in House v The King as opposed to those in Warren v Coombes: see DAO v R [2011] NSWCCA 63; (2011) 278 ALR 765. 34Sixthly and finally, it would be structurally anomalous for this Court to approach the question of whether exceptional circumstances were established on the basis that it is an evaluative judgment for this Court not requiring explicit identification of error at first instance, whilst maintaining the position that all other functions of this Court are to proceed on the basis of the identification of such error. 35It is for those reasons that I approach Ground One in the usual way: namely, by asking whether the applicant has established that it was an error for his Honour not to find exceptional circumstances, in the sense that that finding was not reasonably open. 36The word exceptional is a powerful one. It connotes something remarkable, even extraordinary. Unfortunately, it is not exceptional, or even particularly unusual, for a young man or woman who is suffering from emotional problems caused by events in his or her childhood or adolescence to develop a dependence upon illicit drugs and, in that context, to commit aggravated robberies. 37The steps taken towards treatment and rehabilitation by the applicant were certainly encouraging and commendable. However, I do not consider that his Honour was compelled to characterise them as exceptional. 38Senior counsel referred to decisions of this Court in R v Blackman and Walters [2001] NSWCCA 121 and R v Yuksel; R v Sirtlan [2012] NSWCCA 84. Those were both Crown appeals in which suspended sentences that had been imposed in the District Court for aggravated robberies were impugned by the Crown. In the event, the sentences imposed at first instance were not disturbed. But it seems to me that those cases turned upon their own facts, and are not binding in the sense of supporting, as a matter of principle, the outcome for which senior counsel for the applicant contended. 39In R v Blackman and Walters, the Judge at first instance found that exceptional circumstances had been demonstrated: see [27]. Again, in R v Yuksel; R v Sirtlan, Beech-Jones J found that, on the facts found by the Judge at first instance, the imposition of a suspended sentence did not bespeak manifest inadequacy or other error. 40In my opinion, these were but examples of what must be many cases decided at first instance and on appeal to this Court in which exceptional circumstances have or have not been found that permit the imposition of a sentence other than full-time imprisonment for such offences. Being mere examples, they are not determinative of the outcomes in these proceedings. 41In short, I consider that the decision not to find that exceptional circumstances existed in this matter was reasonably open to the evaluative judgment of his Honour. It follows that I would not uphold Ground One. Ground Two: "His Honour's starting point was excessive." 42In support of this ground, senior counsel for the applicant invited attention to the objective and subjective features that I have summarised above. He emphasised that the offence was unprofessional, very briefly planned (if at all), and featured limited violence and no injury to the victim. He emphasised that the offender was virtually free of prior criminality, young, traumatised during his adolescence, and had taken notable steps towards rehabilitation. 43Senior counsel did not rely on statistics of sentences imposed at first instance or other decisions of this Court by way of comparison, other than the two to which I have already made reference. 44Counsel for the respondent invited attention to the quantum proposed in the guideline judgment of R v Henry, and submitted that this error had not been established. Decision 45Adopting the approach of senior counsel for the applicant, and reapplying the 25 per cent discount, the starting point reflecting all objective and subjective features was a head sentence of 40 months, or 3 years 4 months, with a non-parole period of 20 months, or 1 year 8 months. 46Such a starting point needs to be considered in the context of a maximum penalty of imprisonment for 20 years. It also needs to be considered in the context of the very well-known passages from R v Henry at [162] and [165]: "[162] It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline: (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. ... [165] In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term." 47It is also well known that in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [161] it was said that those portions of R v Henry should be understood on the basis that they are founded on a late plea of guilty. 48It should be remembered that what is under consideration is a starting point without any utilitarian discount for an early plea of guilty. 49In light of the application of R v Henry to the offence of robbery in company by way of R v Murchie and subsequent decisions of this Court, it does not seem to me that it has been established that the starting point in this case was excessive. A comparison to what was promulgated in R v Henry suggests that the starting point was well within range. 50It follows that I would not uphold Ground Two. Ground Three: "His Honour failed to give appropriate weight to the relevant provisions of s21A(3) of the Crimes (Sentencing Procedure) Act, 1999." 51In written submissions, senior counsel for the applicant submitted that his Honour had not given appropriate weight to various mitigating features referred to in s 21A(3) of the Crimes (Sentencing Procedure) Act, including lack of any injury to the victim. He placed emphasis on two exchanges that had occurred between himself and his Honour during the making of the plea in mitigation. The first was with regard to the age of the applicant. His Honour enquired how old the applicant was, presumably as at the date of the offence. Senior counsel informed his Honour that the offender was 21 years of age, presumably referring to his age at the date of sentence rather than at the date of the offence. The exchange ended with his Honour saying "[w]ell he's young but not as young as others." The second exchange occurred when senior counsel enquired whether his Honour wished to be taken to the aggravating and mitigating circumstances of the matter pursuant to s 21A. His Honour requested that senior counsel deal with the question as if dealing with common law aspects of aggravation and mitigation, in order to avoid error such as erroneous double counting. 52It was submitted that these exchanges supported the proposition that his Honour had not accorded appropriate weight to mitigating factors pursuant to the section. 53Counsel for the respondent submitted that his Honour undertook a thorough review of all of the objective and subjective features in the matter, the latter comprising five pages of the remarks on sentence, and that his Honour noted a multiplicity of favourable aspects. Decision 54In Hanania v R [2012] NSWCCA 220, I queried whether an assertion of inadequate weight having been given to a factor or factors by a sentencing judge should be dealt with as a separate ground of appeal at all, or rather regarded as a particular of a ground asserting that a sentence was manifestly excessive. 55I also drew attention to the line of authority extending over a decade as to the limitation inherent in such a ground, and summarised in Yang v R [2012] NSWCCA 49 at [25]. I will not repeat here what I said in that judgment. 56I shall approach the question on the basis that this is an appropriate separate ground. I shall also assume, for the sake of argument, that it is fruitful to examine the exchanges between a sentencing judge and counsel for an offender that are not part of the remarks on sentence (as to which see R v Kain [2004] NSWCCA 143 at [56]; R v Pham [2005] NSWCCA 94 at [11]; R v Thompson [2005] NSWCCA 340 at [32]; Ng v R [2011] NSWCCA 227 at [41]; and Geddes v R [2012] NSWCCA 94 at [42], all of which support the proposition that this Court would not usually find an error of principle from exchanges between counsel and the Bench). 57Even making those assumptions in favour of the applicant, I do not discern error. It was objectively true that the applicant was a young man, but not an adolescent or juvenile when he committed the offence. Furthermore, there is authority of this Court to the effect that approaching s 21A in accordance with the common law may be a useful way of avoiding error by way of double counting: see the judgment of Howie J in Elyard v R [2006] NSWCCA 43. 58Quite apart from the correctness of what his Honour said in the exchanges with senior counsel for the applicant, in the remarks on sentence his Honour reviewed the objective and subjective features in some detail. Favourable findings were made on the basis of those features. On two occasions, his Honour recounted the fact that violence was used, but made no erroneous reference to any injury having been occasioned to the victim. I do not consider that it was incumbent upon his Honour to state explicitly in the remarks on sentence that no injury was alleged to have been occasioned to the victim, especially since that was the undoubted implication of the recounting of acts of violence without any mention of physical consequences. After all, a sentencing judge is surely not required to recount in remarks on sentence aggravating features that are absent from the matter. 59I would not uphold Ground Three. Ground Four: "His Honour erred in not imposing a suspended sentence pursuant to s12 Crimes (Sentencing procedure) Act, 1999." 60Senior counsel for the applicant submitted that, in truth, a starting point of no more than 32 months or 2 years 8 months was called for. Once reduced for the utilitarian value of the early plea of guilty, that would result in a head sentence of imprisonment for 2 years. Thereafter, it was submitted, the sentence should have been suspended. 61Counsel for the respondent submitted that in truth the general complaint of the applicant was that the subjective features of the matter had not been given more weight, leading to a less severe sentence. She submitted that all of those aspects were matters within the discretion of his Honour, and it had not been shown that the discretion of his Honour miscarried by not imposing a shorter sentence and then suspending it. Decision 62It is conceivable that other sentencing judges would have imposed a suspended sentence in this matter, although, in accordance with authority, that would have needed to be predicated on an evaluation that exceptional circumstances had been demonstrated. 63However, it is one thing to say that such an outcome may have been open on the facts of this case. It is quite different to find that his Honour fell into error by imposing a sentence of full-time imprisonment, or was somehow compelled to impose an alternative. In light of the maximum penalty, the applicable guideline judgment, the limited but not non-existent planning, and the degree of force used, I do not consider that these propositions can be sustained. 64No doubt the outcome of the proceedings on sentence was disappointing to the applicant and his family, and no doubt his incarceration had the potential to disrupt the constructive and admirable steps towards rehabilitation that the applicant had already undertaken. But I am not persuaded that it was inherently erroneous for his Honour to fail to impose a suspended sentence. 65It follows that I am not of the opinion that Ground Four has been made out. Orders 66Accordingly, I propose the following orders: (1)Leave to appeal 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. Decision last updated: 12 October 2012