Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Couloumbis v R [2012] NSWCCA 264 Hearing dates: 3 December 2012 Decision date: 11 December 2012 Before: McClellan CJ at CL at [1]; Harrison J at [2]; Adamson J at [41] Decision: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed by Sorby DCJ on 11 November 2011. 4. In lieu of the sentence imposed by Sorby DCJ sentence the applicant to a term of imprisonment of 3 years and 9 months commencing on 4 May 2011 and expiring on 3 February 2015 with a balance of term of 1 year and 3 months commencing on 4 February 2015 and expiring on 3 May 2016. Catchwords: CRIMINAL LAW - sentence - conspiracy to commit aggravated armed robbery - appeal against sentence - whether sentencing judge erred in holding that the offence was a mid range offence - whether sentencing judge double counted as an aggravating factor fact that offence committed for financial gain - whether sentence manifestly excessive Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Elyard v R [2006] NSWCCA 43 Gurney & Willetts v R [2011] NSWCCA 48 Hili v The Queen [2010] HCA 45; (2010) 85 ALJR 195 House v R [1936] HCA 40; (1936) 55 CLR 499 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Mulato v R [2006] NSWCCA 282 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Category: Principal judgment Parties: Nicholas Couloumbis (Applicant) Crown (Respondent) Representation: Counsel: K Earl (Applicant) F Veltro (Crown) Solicitors: AHA Taylor Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/382477 Decision under appeal Date of Decision: 2011-11-11 00:00:00 Before: Sorby DCJ File Number(s): 2010/382477 Judgment 1McCLELLAN CJ at CL: I agree with Harrison J. 2HARRISON J: The applicant seeks leave to appeal against a sentence imposed upon him by his Honour Sorby DCJ in the District Court at Sydney on 11 November 2011. The applicant pleaded guilty to one count of the common law offence of conspiracy to commit aggravated armed robbery. The substantive offence is to be found in s 97(2) of the Crimes Act 1900, which carries a maximum penalty of 25 years imprisonment. 3Three additional offences were taken into account on a Form 1. These were another offence of conspiracy to commit aggravated armed robbery, and two offences of contravene an apprehended domestic violence order. 4His Honour imposed a sentence of imprisonment of 7 years to date from 4 May 2011 and to expire on 3 May 2018 with a non-parole period of 5 years to expire on 4 May 2016. His Honour did not specifically refer to any circumstances warranting an adjustment of the s 44(2) statutory ratio but nevertheless imposed a non-parole period that was 71 percent of the head sentence. He included a discount of 25 percent in respect of the applicant's early plea of guilty. The sentence was backdated to take account of the applicant's time in custody. 5The applicant's appeal was filed out of time but an application for an extension of time is not opposed and should be granted. Background 6The applicant met Linda Gouveia at a methadone clinic in Marrickville in 2009/2010. Ms Gouveia subsequently introduced the applicant to Matthew Crowe, who was at the time supplying heroin and other drugs to Ms Gouveia and later to the applicant from his premises in Dulwich Hill. The applicant explained to Ms Gouveia and Mr Crowe that he had devised a plan to commit an armed robbery on an acquaintance who he believed would have a substantial sum of cash in his possession as the takings from his business. 7Ms Gouveia met Mr Crowe at his home on 20 October 2010 and disclosed the applicant's plan. Mr Crowe and the applicant later spoke on the phone and the applicant subsequently attended the Dulwich Hill premises to talk about it. The applicant explained how he knew that the business owner did his banking and that he would make an easy target for a robbery. 8The applicant explained that he knew the intended victim through the Greek community and that the daily takings from his health food businesses in Sydney could be as much as $35,000. The victim resided in Hurstville with his mother. 9It was agreed that the three of them would carry out the armed robbery together. Ms Gouveia would be the driver for the group in her vehicle to and from the Hurstville premises. The applicant and Mr Crowe would enter the victim's home and rob him at gunpoint. Mr Crowe possessed a pistol that he was to use for that purpose. Balaclavas would be worn. The applicant believed that Mr Crowe had previously committed armed robberies. 10Police became aware of the conspiracy on 22 October 2010 following a lawful telephone intercept. Information gathered in this way confirmed the plan for an armed robbery, despite the careful and guarded nature of the intercepted conversations and text messages. In due course the police identified and contacted the intended victim and his brother and discerned a history of the relationship between the applicant and the victim. Police established that the applicant, Mr Crowe and Ms Gouveia had prepared to carry out the robbery more than once but had not gone through with their plans for various reasons. 11On 26 October 2010, police were apparently detected carrying out surveillance on Mr Crowe's home. He subsequently gave the pistol to Ms Gouveia for safekeeping. Mr Crowe moved to a motel at Glebe and urged that the robbery be postponed until the risk of detection had passed. The applicant told Ms Gouveia that if Mr Crowe were no longer prepared to assist with the robbery he would find someone else. 12Mr Crowe returned home to Dulwich Hill on 29 October 2010. He was arrested and charged with supplying heroin four days later. On 5 November 2010 the applicant and Ms Gouveia learned of Mr Crowe's arrest. On the following day they spoke about carrying out the armed robbery without him. They decided to do it on 8 November 2010. 13On 7 November 2010 the applicant told Ms Gouveia about another plan. He knew of a place to carry out a robbery in the Bankstown area where they could get about five or six thousand dollars. The applicant told Ms Gouveia that she should deliver the firearm that she was holding for Mr Crowe to him that evening. 14On 8 November 2010 the applicant rang his mother and told her that Ms Gouveia was supposed to bring him something, a gun, but that she forgot it at her home. The planned robbery of the applicant's acquaintance on that day did not proceed. Later that same day the applicant spoke to Ms Gouveia and told her that they could carry out the Bankstown robbery on the following Saturday morning. He told her that it would be easy because there would only be a few people at the intended location. The applicant convinced Ms Gouveia to join the Bankstown robbery plan. She told him that she was putting her trust in the applicant. 15On Saturday 13 November 2010 the applicant obtained employment working on a building site and could not carry out the robbery as planned. That evening Ms Gouveia told the applicant that she was angry because she had been left without money and that she still wanted to carry out their plan. The applicant agreed and said that they could do it later in the week. 16On Tuesday 16 November 2010 the applicant and Ms Gouveia were arrested. The applicant said that he did not know Mr Crowe and denied speaking with either him or Ms Gouveia in relation to the proposed armed robberies. He confirmed that he knew the intended victims and confirmed that they were in fact friends of his. Mr Crowe's mobile phone number was listed as a contact in the applicant's mobile phone. 17A search warrant executed at the homes of the applicant and Ms Gouveia recovered a replica chrome plated semi automatic .765 PPK pistol with magazine in a handbag at Ms Gouveia's home. Police also found a filofax containing details of the intended victims in the applicant's bedroom. Ms Gouveia initially denied the offences but later made a full confession when she was informed that the pistol had been recovered from her premises. She provided a full account of her dealings with the applicant and Mr Crowe. 18Ms Gouveia confirmed that she had received the pistol from Mr Crowe when he suspected that he was under police surveillance and that she had later told the applicant of this. She indicated that the applicant had then told her to take the pistol to him in a telephone conversation in which the pistol was referred to in code. The applicant declined to answer any questions when interviewed by police. 19The applicant had a long history of drug use including cannabis, amphetamines, cocaine and heroin. He had also been charged with a number of drug offences including possession of a commercial quantity of a prohibited narcotic in 1999 for which he received 10 years' imprisonment with a non-parole period of 7 years. He was 40 at the date of his arrest. He was educated to Year 10 and enrolled at TAFE to become a plumber. He has worked as a plumber sporadically over the years. He supported his sister, who lived with his mother. His sister suffers from cystic fibrosis, epilepsy and breast cancer. Remarks on sentence 20His Honour outlined the facts. He went on to say the following in his remarks on sentence: "These facts outlining what the offender was planning to do, in company, reveal objectively a very serious offence. Armed robbery is an offence of the utmost gravity. The offender planned to enter the victim's house and rob him at gunpoint. The offender and the co-conspirator Crowe planned to wear balaclavas to disguise themselves. Not only was what was planned against property, but also an offence against the person, in this case the victim who owned the health food bars in the CBD of Sydney. General deterrence must loom large in the sentencing exercise as well as specific deterrence. ... The factors of aggravation and mitigation under s 21A of the Crimes (Sentencing Procedure) Act 1999, other than those which are referred, are as follows: in aggravation, that the offence was committed for financial gain. There are no further factors in mitigation. I now turn to the appropriate sentence. The offence was objectively serious. This offender thought and planned to rob the victim, somebody he knew and had known for a very long time in the Greek community. The plan involved the offender and the co-offender Crowe entering the victim's house, wearing balaclavas and robbing the victim at gunpoint. The plan was cowardly. Specific but importantly general deterrence, as I have said, is very important as a sentencing exercise as a warning to other like-minded individuals in the community. This is a conspiracy offence, the essential feature of which is the agreement by the offender to participate in organised criminal activity... Weighing up the objective seriousness of the offence with the factors outlined earlier, and taking into account the early plea, the offender's record and the similar matters in the Form 1, I consider the appropriate overall sentence to be one of seven years, with a non-parole period of five years." 21Neither party sought to draw particular attention to any other portions of his Honour's sentencing remarks. Grounds of appeal 22In these circumstances the applicant relies upon the following grounds of appeal: 1. The learned sentencing judge erred in holding that the offence was a mid range offence. 2. The learned sentencing judge erred in holding that it was a circumstance of aggravation (under s 21A of the Crimes (Sentencing Procedure) Act 1999) that the offence was committed for financial gain. 3. The sentence of seven years with a non-parole period of five years is manifestly excessive. Ground 1 23His Honour did not in fact hold that the offence was a mid range offence. Instead his Honour held that the offence was "objectively a very serious offence". The only reference to a "mid range offence" appears in the course of an exchange between counsel and the bench at the proceedings on sentence. Such an exchange does not form part of the remarks on sentence: Gurney & Willetts v R [2011] NSWCCA 48 at [58]. 24Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing tribunal in finding facts and drawing inferences from those facts. This Court should accordingly be slow to set aside a judgment at first instance of a judge exercising a broadly based discretion. The question must be whether the particular characterisation adopted by the sentencing judge was open: Mulato v R [2006] NSWCCA 282 at [37], [46] - [47]. 25It goes without saying that expressions such as "objectively serious" or "objectively very serious" contain the implied qualifying words such as "for offences of this type". Any characterisation of the seriousness of the offence must be made in the context of where on a notional scale of like offences the particular offence can be said to fall. It should not be understood as a characterisation of where the offence lies in the general calendar of criminal conduct. 26The facts referred to earlier do not suggest a trivial offence. The offence with which the applicant has been charged and to which he pleaded guilty was certainly not trifling. It is a mistake to confuse the fact that the conspiracy was never acted upon with the idea that it was for that reason somehow less serious or not serious at all. The offence of conspiring to commit aggravated armed robbery is a manifestly serious criminal offence, and a description of it as objectively very serious does neither injustice to the expression in the context of this case nor to the applicant in this appeal. I do not think that his Honour erred in his use of that term as a formulation suitably describing the applicant's offence. 27I would dismiss the first ground of appeal. Ground 2 28It is well understood that an aggravating factor identified in s 21A(2) of the Act cannot be taken into account in formulating a sentence if that matter is already an inherent element of the offence under consideration. It is the applicant's contention that "financial gain" is an element of the offence of conspiracy to commit aggravated armed robbery, so that his Honour has fallen foul of the relevant proscription. I disagree. 29The applicant's argument proceeds upon a misunderstanding of the difference between what is an element of the offence and what may possibly be described as its motive or its inspiration. Proof of financial gain is not a prerequisite to proof of the crime charged. Reasons inspiring the commission of this offence are wholly beside the point. 30It was argued on behalf of the applicant that financial gain was "an inherent characteristic" of the offence charged. That description finds expression in the reasons of Howie J in Elyard v R [2006] NSWCCA 43 at [39] - [40] as follows: "[39] It is unfortunate indeed that those responsible for drafting s 21A of the Crimes (Sentencing Procedure) Act have made the task of sentencing courts more difficult, or at least more prone to error (either real or apparent), by what was in my opinion a needless attempt to define relevant factors into categories of aggravation or mitigation and yet apparently without the intention of altering the common law as it was applied to sentencing before the advent of the section. One has only to look back over sentence appeals determined by this Court over the last two years to see the impact that this section has had upon the work of this Court. And yet, as I pointed out in R v Tadrosse [2005] NSWCCA 145, if sentencing judges simply take into account the relevant sentencing factors that were taken into account before the introduction of the section, they will inevitably comply with the section's demands. [40] There is now another unnecessary complication fully identified as arising from the introduction of the section that will plague sentencing judges and this Court: not only must the sentencing court not take into account as an aggravating feature an element of the offence, it also must not take into account as an aggravating feature an inherent characteristic of the class of offence of which the offence before the court is an example. Yet this must be so in order to avoid either real or apparent double counting of aggravating features. As Basten JA points out, this matter was referred to in R v Way (2004) 60 NSWLR 168 at [172], it was identified in R v McMIllan [2005] NSWCCA 28 at [38] and it was considered in R v Ancuta [2005] NSWCCA 275 at [11]. The fact that there is an apparent inconsistency in approach between the view taken in McMillan and that taken in Ancuta in relation to dangerous driving under the influence of alcohol shows how difficult it is to determine whether it is permissible to take into account the aggravating factor that "the offence was committed without regard for public safety" in any particular case." 31An inherent characteristic suggests something that is always present as a permanent and essential attribute of the thing under consideration. As counsel for the applicant quite properly conceded in this Court, examples of the subject offence in which financial gain was wholly absent could readily be identified. It follows that financial gain is no more an inherent characteristic of the offence than it is an element of the offence. 32His Honour decided to describe or characterise as an aggravating feature the fact that the applicant committed the offence for financial gain by reference to s 21A(2)(o). That reference was in my view unexceptionable. His Honour did not fall into the error of impermissibly double counting an element of the offence in so doing. 33It follows that I would also dismiss this second ground of appeal. Ground 3 34The applicant's written submissions in this Court did not develop this ground of appeal in any detail. Those submissions appeared instead to emphasise what might be described as the applicant's subjective case. Counsel for the applicant in this Court was invited to make submissions upon the question of whether or not his Honour may possibly have failed to take account of some matters particularly affecting the applicant, and whether his Honour may thereby erroneously have given inadequate and correspondingly improper consideration to the applicant's subjective case, amounting to a failure to take into account some material consideration in the way explained in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5. However, that invitation was not taken up and no application to augment the grounds of appeal was made. 35In order to establish that his Honour's sentence was manifestly excessive it is necessary for the applicant to demonstrate that the sentence under challenge is unreasonable or manifestly unjust: Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [27]. Appellate intervention is not justified simply because the result arrived at below is or may be markedly different from other sentences that have been imposed in other cases. Intervention is only warranted where the difference is such that in all of the circumstances the appellate court concludes that there must have been some misapplication of principle, even if it its precise manifestation cannot be identified or determined: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [58]; Hili v The Queen [2010] HCA 45; (2010) 85 ALJR 195 at [58] - [59]. That this Court may have exercised the sentencing discretion differently is not the test: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. 36It was submitted on behalf of the Crown that the sentence was not manifestly excessive. The Crown pointed to a number of factors alive in this case to support that contention. First, there is no prescribed maximum penalty for the offence although the maximum penalty for the substantive offence may operate, in effect, as a guide. Secondly, the Form 1 offences required that a penalty greater than that otherwise to be imposed for the single offence was appropriate. Thirdly, that the applicant's criminal antecedents were such that he was not entitled to leniency that might otherwise be afforded to someone with a different criminal background. Finally, that a less severe sentence would fail to reflect the objective seriousness of the offence and the purposes of sentencing, including both specific and general deterrence. The Crown contended in this last respect that there was nothing exceptional to be found in the applicant's subjective circumstances that would warrant any less severe sentence. 37It is urged upon this Court by the Crown that it involved considerable planning over the course of three weeks. In my view that somewhat overstates the position. The three co-conspirators engaged in a series of ill-directed and haphazard negotiations concerning an opportunity that the applicant appears with very little precision to have identified with respect to one of his acquaintances in the Greek community who he thought was likely to have cash in his possession. The whole enterprise was in due course fatally compromised by police surveillance, which Mr Crowe detected at his premises. Before that occurred, Ms Gouveia was chosen to be the driver of the getaway car. Somewhat extraordinarily it was proposed that she should use her own car for that purpose. On one occasion the proposed robbery had to be aborted as Ms Gouveia forgot to turn up with the replica pistol when it was required. On another occasion, the applicant told the others that the planned robbery had to be postponed because it conflicted with his work commitments. Neither the applicant nor Ms Gouveia apparently gave sufficient thought to the police surveillance about which Mr Crowe had alerted them, and certainly not enough to convince them to cease their conspiratorial activities. None of the conspirators appeared to appreciate or understand that the risk of detection was never likely to pass, as Mr Crowe had hopefully but unrealistically predicted, once the group had already become the subject of active police surveillance. Instead they plodded on regardless. 38Counsel for the applicant in this Court referred to the whole operation as a "shemozzle". Accepting that any resort to the vernacular is potentially imprecise at best, I have some considerable sympathy for that description of the conspiracy charged in this case. The applicant became involved in a very unsophisticated agreement with a woman he met at a methadone clinic and their dealer, to rob a known victim of his daily takings. None of them appears to have contributed any relevant experience or useful skills to the enterprise. The timing of the robbery was never settled and yielded more than once to personal commitments or forgetfulness. The original plan even became the subject of a much less ambitious proposal to rob someone else, this time at an undisclosed location at Bankstown. The precise details of that proposal have never clearly emerged, although they make up one of the offences on the Form 1. There is certainly no evidence of detailed or sophisticated planning concerning that offence. 39To the extent that anyone possibly minded to commit a similar offence might be informed about the wisdom of doing so by the outcome of these proceedings, I accept that the sentence imposed upon the applicant is an important consideration for the sentencing tribunal. I am not satisfied however that the objectively detectable criminality in this case warrants a non-parole period of 5 years imprisonment. I have already indicated that the offence of conspiracy to commit aggravated armed robbery is a serious offence. I do not resile from that view. However, I consider that the sentence imposed upon the applicant in this case is manifestly excessive. A lesser sentence is warranted in law. 40In these circumstances I would propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed by Sorby DCJ on 11 November 2011. 4. In lieu of the sentence imposed by Sorby DCJ sentence the applicant to a term of imprisonment of 3 years and 9 months commencing on 4 May 2011 and expiring on 3 February 2015 with a balance of term of 1 year and 3 months commencing on 4 February 2015 and expiring on 3 May 2016. 41ADAMSON J: I agree with Harrison 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. 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 December 2012