Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Yousif v R [2014] NSWCCA 180 Hearing dates: 06/08/2014 Decision date: 12 September 2014 Before: Hoeben CJ at CL at [1] Adamson J at [39] Bellew J at [40] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - offence or robbery in company contrary to s97(1) Crimes Act 1900 - co-offenders charged with same offence - different sentences imposed - whether unjustified disparity in sentences - significant difference in subjective cases of offenders - disparity in sentences justified by differences between co-offenders. Legislation Cited: Crimes Act 1900 - s97(1) Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 463 Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 Kelso v R [2010] NSWCCA 34 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Jones (unreported, NSWCCA, 30 June 1994) Wong v R [2001] HCA 64; 207 CLR 584 Category: Principal judgment Parties: Ali Yousif - Applicant Regina - Respondent Crown Representation: Counsel: D O'Neil - Applicant C Everson - Respondent Crown Solicitors: SE O'Connor, Legal Aid NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2012/70671 Decision under appeal Date of Decision: 2013-08-26 00:00:00 Before: Craigie DCJ File Number(s): 2012/70671 Judgment 1HOEBEN CJ at CL: Offence and sentence The applicant pleaded guilty to one count of robbery in company contrary to s97(1) Crimes Act 1900 for which the maximum penalty is imprisonment for 20 years. 2On 26 August 2013 he was sentenced by Craigie DCJ SC to imprisonment with a non-parole period of 2 years 1 month and 20 days to date from 23 September 2012 and expire on 11 November 2014 with an additional term of 2 years 1 month and 20 days to expire on 31 December 2016. 3The applicant seeks leave to appeal from that sentence on the following ground: The applicant has a justifiable sense of grievance due to the disparity in the sentence imposed upon the applicant and that imposed upon the co-offender. Factual Background 4At approximately 11pm on Sunday 5 February 2012 the complainant boarded a train from Wynyard to Parramatta. He was listening to music through his iPhone with headphones on and was carrying a backpack containing a number of personal items, a credit and debit card, a packet of cigarettes and approximately $180 in cash. 5At around 11.25pm while the train was somewhere between Strathfield and Lidcombe, he was approached by two males. One stood in front of him and the other stood beside him. The one who stood in front of him was the co-offender, Mahmoud Allam. The applicant was the person who stood beside him. 6Allam demanded cigarettes and the mobile phone from the complainant. When the complainant refused, he produced a knife, which appeared to be a domestic cooking knife, some 4 inches in length. The knife was pressed against the complainant's left thigh. At this point the complainant shouted for help and was punched, although it is not known by whom. 7Thereafter, Allam began hitting the complainant's head with the butt end of the knife handle. The complainant also received several punches to the front, back and side of his head with most of those blows landing on the right hand side. Again it is not known who was doing the punching. 8While he was being punched, the complainant's mobile phone was removed from his hand by one of the offenders, who also demanded that he give up his wallet. The complainant covered his face and head while continuing to scream for help. He heard the words "Give me your wallet" repeated several times. While this was happening, Allam started to poke the complainant with the knife point, pressing it into his left thigh, and saying that he would stab him. 9As the complainant tried to stand up and continued shouting for help, his backpack was ripped from his shoulder and one of the offenders said to the other "There's someone let's go, go, go". 10It was common ground that apart from the possession of the knife by Allam, it was not known which of the offenders punched the complainant. The Crown accepted that it was unable to prove that the applicant actually struck the complainant at any time. The Crown noted, however, that by his plea the applicant accepted responsibility for the violence which was administered to the complainant. 11When apprehended by the police, the applicant denied that he was involved in the offence and maintained that denial during the course of an ERISP. Upon the completion of the ERISP as he was being walked outside for a cigarette, the applicant said to the officer in charge of the investigation: "We robbed the wrong bloke, it was meant to be a bloke carrying money for the Rebels. We thought it was him. We got the wrong bloke." Despite that admission, the applicant maintained his denial of liability until the first day of the trial when he pleaded guilty to the offence. 12Allam came before Woodburne DCJ SC on 26 April 2013 for sentence. Allam had been convicted by her Honour after a judge alone trial. Her Honour concluded that there was a level of pre planning because Allam had a small knife held in his hand when he approached the complainant. Her Honour characterised the offence as serious because it involved an unprovoked and unwarranted attack by two men on one who was unarmed and who was doing no more than travelling on a train. The offence was committed for no other reason than for financial gain. 13In relation to Allam's subjective case, her Honour noted that he had been convicted on 14 September 2007 of an identical offence, i.e. robbery in company. Her Honour also noted that Allam was on bail for the offence of resist officer in execution of duty and destroy/damage property. Allam was aged 24 at the time of the offence and 25 at the time of sentence. In his favour, her Honour found that he had a good employment record and that he had successfully completed a rehabilitation program. He had also accepted responsibility for his offending which her Honour found was consistent with remorse. Nevertheless, her Honour regarded his prospects of rehabilitation as guarded. 14When imposing a sentence for this offence, her Honour took into account an offence on a Form 1. The facts of that offence were that when arrested Allam threatened that he would find the police officer concerned and kill him. Her Honour regarded that as a serious instance of intimidation of a police officer. 15Her Honour found special circumstances because of the need to promote rehabilitation, particularly in relation to his poly-substance abuse and anger management issues. The sentence imposed was imprisonment with a non-parole period of 2 years and 6 months with a balance of term of 2 years and 6 months, i.e. a total sentence of 5 years. Proceedings before sentencing judge 16His Honour in this case had regard to the maximum penalty for this offence, which he regarded as a clear signal of Parliament's view of the seriousness of this kind of offence. By comparison with the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 his Honour noted the following similarities - a young offender, a weapon like a knife capable of killing or inflicting serious injury, a limited degree of planning, limited actual violence, a victim in a vulnerable position, a small amount taken and a plea of guilty. The differences were that this applicant had a very significant criminal record, albeit sustained as a juvenile, and was on parole at the time for an identical offence, i.e. robbery in company. Taking those matters into account, together with the late plea of guilty, this offence was more serious than that envisaged in the Henry guideline judgment. 17In relation to the late plea of guilty, his Honour determined the appropriate discount to be 10 percent. 18When considering the applicant's subjective circumstances, his Honour noted that his youth had been disrupted in that he was a refugee from Iraq and his family had suffered persecution under Saddam Hussein in the course of which his father had been executed. His Honour also took into account that he had a truly appalling criminal record, having been convicted on 14 previous occasions of offences of robbery in company, armed robbery, and steal from the person. There were numerous other convictions of lesser seriousness. 19His Honour took into account the pre-sentence report which stated: "Having displayed negative behaviour towards staff and other inmates, he incurred numerous institutional misconduct charges resulting in periods of segregation. Whilst on parole, breach action was initiated on three occasions for ongoing illicit drug use, failure to comply with directions in regards to intervention strategies and re-offence". By reference to his imprisonment on this occasion, the pre-sentence report recorded 42 conduct breaches, including entries for intimidation, fighting, possessing drugs, damaging property and failing to comply with the custodial institution's routine. 20His Honour noted that the applicant was released to parole on 26 July 2011, about three weeks before his nineteenth birthday, and that this offence which was of the same kind occurred a little over 7 months later. In evidence before his Honour the applicant admitted that he had been a party to the initial plan to rob an individual who was thought to be carrying money for the Rebels motorbike group. He denied punching the victim, but accepted his complicity in the robbery. 21The applicant gave evidence which was consistent with some psychiatric problems, including hallucinations and depression. The veracity of these complaints, however, was rejected by Dr Keller, a psychiatrist from Justice Health, who examined the applicant and whose report was before the sentencing judge. His Honour rejected any psychiatric condition but accepted that the offending took place in the setting of an entrenched drug abuse habit. His Honour considered that this explained the offending rather than excused it. 22In relation to parity, his Honour said: "As to the issue of parity: there are a number of disparate features in relation to the co-offender. That offender did not plead guilty, consequently he was afforded no reduction for utility that would flow from the plea and was afforded no allowance for contrition, that being inconsistent with defending the matter. It is not disputed that it was also the co-offender who was the initiator of the offence. There was also, in his case, a Form 1 to be taken into account and to be reflected in the severity of the overall sentence. The co-offender was in his mid twenties and therefore older than the present offender. His background was not disadvantaged but he, like the offender, had entries for prior robbery offences, including one robbery in company that was dealt with in this court when he was an adult in 2007. I conclude therefore that in each of the relevant respects, the co-offender's position was distinguishable from that of this offender, who has both pleaded guilty and expressed contrition over and above that that is inherent in a guilty plea. ... I do have regard to the degree of violence that cannot be specifically sheeted home to him and which was at a greater level as established as against the co-offender Allam, who was also the principal initiator and planner of the robbery of an intended victim and in producing the knife with which he struck Mr Singh, a target and victim of opportunity. His conduct was certainly of a higher level. Accordingly, this is a matter where parity, as opposed to some appropriate measure of proportion, will not be applied." 23His Honour also had regard to the revocation of parole on 9 March 2012. His Honour took that into account by moderately backdating the commencement of the sentence. It was for that reason that his Honour specified the commencement date of the sentence as 23 September 2012. Allowing for that backdating, the effective non-parole period of imprisonment to be served by the applicant directly referable to this offence was 1 year, 11 months and 20 days and the total effective sentence was 4 years, 1 month and 9 days. Submissions 24The applicant submitted that when one looked at the starting point for the sentences imposed on each of the offenders, the starting point for Allam's term of imprisonment was 60 months and that of the applicant 57 months before the 10 percent discount. The applicant submitted that such a comparison revealed a marked disparity which would lead an objective observer to conclude that the applicant would have a justifiable sense of grievance given the different roles and circumstances of the two offenders. 25The applicant submitted that although the sentencing judge had concluded that the conduct of Allam was of a higher level of seriousness than that of the applicant, this was not reflected in the sentences imposed in that there was only a difference of 3 months in the starting point for the head sentences. The applicant submitted that given that Allam initiated the offence, produced a knife during the robbery, was in his mid twenties and did not have a disadvantaged background, the starting point for the sentence imposed on the applicant should have been significantly lower than the starting point for Allam so as to meet the principle of equal justice. Consideration 26The doctrine of parity on sentencing is a norm of equal justice and an essential element of the rule of law: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 463 at [28]. The principle of equal justice requires as far as the law permits that like be treated alike and that differential treatment be meted out to reflect differences between those that are relevantly different: Green and Quinn at [28]; Wong v R [2001] HCA 64; 207 CLR 584 at 608; Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540. 27In Green and Quinn, the plurality (French CJ, Crennan and Kiefel JJ) said at [31] and [32]: "31 Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may "reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender." The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: "the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done." The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. 32 A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment." 28Applying those principles to the facts of this case, it is apparent that the differences and similarities are such that when looked at objectively, there is no basis for any justifiable sense of grievance on the part of the applicant. As was said McClellan CJ at CL (with whom Howie and Harrison JJ agreed) in Kelso v R [2010] NSWCCA 34 at [22] - [23]: "22 The principles must be considered when complaint is made of disparate sentences are well understood. It is not enough that there is disparity in the sentences. Some disparities are inevitable. In Postiglione v R (1996-1997) 189 CLR 295 at 301 Kirby J at 338 remarked that "mere disparity is not enough to justify intervention by an appellate court." Before this Court will intervene, the disparity of the sentences must be such "as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done." Lowe v R (1984) 154 CLR 606. 23 The principles were recently reviewed by Howie J in England & Phanith v R [2009] NSWCCA 274 at [62] where his Honour said: "It should be borne in mind that the High Court's decisions on this area of appellate intervention speak of 'gross', 'marked', 'glaring', or 'manifest' disparity. These terms are used throughout the judgment in Lowe v R. Another way of considering the issue is to ask whether the two sentences give rise to an appearance that justice has not been done per Gibbs CJ at 610 and Dawson at 623."" 29A comparison of the subjective features of the two offenders illustrates the point. Apart from the fact that the applicant had a disadvantaged background and was younger, (although both offenders were young), Allam had a much stronger subjective case than the applicant. The applicant had a significantly worse criminal record than Allam, including as it did 14 prior convictions for robbery in company, armed robbery and steal from the person, compared with 2 robberies by Allam many years before. Moreover, the applicant was still on parole for a prior robbery in company. The applicant had been released to parole in respect of that robbery in company only seven months before this offence. His Honour quite correctly took this into account as "a significant aggravating factor". 30Such a repetition of offending has been treated as a matter of "major aggravation" by this Court. In R v Jones (unreported, NSWCCA, 30 June 1994) Finlay J (with whom Carruthers and Badgery-Parker JJ agreed) said at p 6: "Here the applicant committed this offence while on conditional liberty following his conviction for an identical offence. That is, undoubtedly a matter of major aggravation. When offenders are given conditional liberty - be it on parole or when they are subject to periodic detention orders, community service orders or on recognisance to be of good behaviour or, indeed, on bail for alleged offences - the commission of additional offences is a serious matter." 31The applicant's prospects of rehabilitation were virtually nil. Not only did the applicant concede in evidence that he had a "bad attitude" and had a recalcitrant habit of consuming illicit substances, his conduct while in custody awaiting sentence, demonstrated a complete absence of any intention to change his behaviour. As the author of the pre-sentence report observed, his behaviour while in custody was "abysmal". Forty two misconduct charges while in custody before sentencing including intimidation, fight/combat, possess drug, damage/destroy property and failure to comply with prison routine is demonstrative of an absence of any intention to change behaviour. 32With regard to the objective seriousness of the offending of each offender, there is little to differentiate their behaviour during the offence. Both were aware of a plan to rob a person associated with the Rebels motorbike gang. While it is true that Allam had the knife, the applicant was standing next to the victim throughout the offending and in so doing, played an important role in the intimidation of the victim. Implicit in his plea of guilty is his adoption of the criminal behaviour of Allam. 33The evidence as to the punching of the victim is not to the effect that the applicant did not punch him, rather it is to the effect that it cannot be established which of the offenders (if not both of them) struck the victim. 34Looked at in that way, the only significant point of distinction between the actions of the offenders established by the evidence was that Allam undoubtedly held the knife, otherwise there was little or no difference in the objective seriousness of their offending behaviour. That having been said, his Honour did find that the offending of Allam was objectively more serious than that of the applicant. 35When the sentences imposed on the applicant and Allam are considered against that background, the differences between them do not demonstrate a basis for the applicant having a justifiable sense of grievance. 36When one has regard to the backdating of the commencement date of the applicant's sentence, the difference between his sentence and that of Allam takes into account the modest difference in the criminality of their offending and the substantially stronger subjective case of Allam. This is particularly so when one has regard to the very generous finding of special circumstances made by his Honour in favour of the applicant. Despite there being almost no prospects of rehabilitation on the part of the applicant, the ratio of his non-parole period to the total sentence was 50 percent. 37This ground of appeal has not been made out. 38The orders which I propose are that leave to appeal be granted but that the appeal be dismissed. 39ADAMSON J: I agree with Hoeben CJ at CL. 40BELLEW J: I agree with Hoeben CJ at CL. ********** 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 September 2014