Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Alvi v R [2014] NSWCCA 191 Hearing dates: 4 August 2014 Decision date: 01 October 2014 Before: Hoeben CJ at CL at [1] McCallum J at [2] Bellew J at [3] Decision: (1) Leave to appeal is granted; (2) The sentence in respect of count 7 is quashed and in lieu thereof the applicant is sentenced to a non-parole period of 2 years and 3 months imprisonment commencing on 8 November 2011 and expiring on 7 February 2014 and an additional term of 9 months imprisonment commencing on 8 February 2014 and expiring on 7 November 2014. (3) The appeal is otherwise dismissed. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996 Cases Cited: Collier v R [2012] NSWCCA 213 Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Forbes v R [2009] NSWCCA 292 Giles v DPP [2009] NSWCCA 308 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 KAF v R [2009] NSWCCA 184 KC v R [2009] NSWCCA 110 Leddin v R [2008] NSWCCA 242 Leslie v R [2009] NSWCCA 283 Mill v R (1988) 166 CLR 59 Pearce v The Queen [1988] HCA 57; (1998) 194 CLR 610 R v Franks [2005] NSWCCA 196 R v Hamied [2007] NSWCCA 151 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Sharma [2002] NSWCCA 142 R v Thomas (1992) 64 A Crim R 269 Category: Principal judgment Parties: Ammar Khalid Alvi - Applicant Regina - Respondent (Crown) Representation: Counsel: M Crawford-Fish - Applicant N Williams - Respondent (Crown) Solicitors: Legal Aid New South Wales - Applicant S Kavanagh Solicitor for Public Prosecutions - Respondent (Crown) File Number(s): 2011/357222 Publication restriction: Nil Decision under appeal Date of Decision: 2013-06-14 00:00:00 Before: Payne DCJ Judgment 1HOEBEN CJ at CL: I agree with Bellew J. Given the level of criminality involved in these offences and their number, Grounds of Appeal 2 and 3 were quite misconceived. 2McCALLUM J: I agree with Bellew J. 3BELLEW J: On 8 February 2012 Ammar Khalid Alvi ("the applicant") pleaded guilty in the Local Court to the following offences: (i)robbery armed with a dangerous weapon on 25 September 2011 (count 1); (ii)robbery armed with a dangerous weapon on 4 October 2011 (count 2); (iii)robbery armed with a dangerous weapon on 9 October 2011 (count 3); (iv)robbery armed with a dangerous weapon on 17 October 2011 (count 4); (v)robbery armed with a dangerous weapon on 18 October 2011 (count 5); (vi)robbery armed with a dangerous weapon on 30 October 2011 (count 6); (vii)possess unauthorised pistol on 8 November 2011 (count 7); and (viii)possess unregistered firearm (pistol) on 8 November 2011 (count 8). 4The offences in each of counts 1 to 6 were contrary to s. 97(2) of the Crimes Act 1900, the maximum penalty for which is 25 years imprisonment. The offences in counts 7 and 8 were contrary to ss. 7(1) and 36(1) respectively of the Firearms Act 1996. Each offence carries a maximum penalty of 14 years imprisonment. The offence in count 7 carries a standard non-parole period of 3 years. 5On 14 June 2013 her Honour Judge Payne imposed the following sentences: (i)in respect of each of counts 1, 2, 7 and 8, imprisonment for a fixed term of 3 years commencing on 8 November 2011 and expiring on 7 November 2014; (ii)in respect of each of counts 3 and 4, imprisonment for a fixed term of 3 years commencing on 8 May 2013 and expiring on 7 May 2016; (iii)in respect of each of counts 5 and 6, imprisonment for 4 years and 6 months commencing on 8 May 2016 and expiring on 7 November 2020 with a non-parole period of 6 months, expiring on 7 November 2016. 6The overall sentence imposed by her Honour was one of 9 years imprisonment with a non-parole period of 5 years. The applicant is eligible for release on parole on 7 November 2016. 7The applicant now seeks leave to appeal on the following grounds: (1)her Honour breached s. 45(1) of the Crimes (Sentencing Procedure) Act 1999 in failing to impose a non-parole period in respect of count 7; (2)her Honour failed to properly apply the principle of totality; (3)the sentences imposed are manifestly excessive. THE FACTS 8Her Honour found the following facts. Count 1 9At about 8:55pm on Sunday 25 September 2011 Arjun Vykuntam, an attendant at a BP Service Station in Silverwater, was at work when the applicant walked to the front counter and enquired about the price of a packet of cigarettes. The applicant left without purchasing them, but returned at about 9:25pm, at which time Mr Vykuntam was alone. The applicant approached him and said: "Open your till and give me all the cash because I have a gun". 10The applicant placed his right hand into the pocket of his hooded jumper and partially removed a small silver revolver before putting it back into his pocket. At that time, he was standing about one metre away from Mr Vykuntam on the opposite side of the counter. 11Mr Vykuntam tried to open the cash register but was unsuccessful. The applicant then picked up an item from the counter and waved it past a scanner which caused the drawer of the cash register to open. Mr Vykuntam then handed over a number of notes and coins to the applicant. The applicant then said: "Give me a packet of Winfield Blues". 12Mr Vykuntam handed the applicant a packet of cigarettes. The applicant left the service station and was last seen walking towards Parramatta Road. 13The proceeds of the robbery were $500.00 in cash and a packet of cigarettes. Count 2 14At about 2:15am on 4 October 2011 a 7-Eleven store attendant, Syed Tasawar, saw the applicant standing outside his store in Parramatta. At about 2:30am the applicant entered the store. As he did so, he placed a bin between the entry doors to prevent them from closing, before approaching Mr Tasawar. He removed a silver coloured gun from his pocket, although Mr Tasawar could see only the trigger and handle. The applicant then put the gun back into his pocket and said: "Give me the cash or I will shoot you". 15Mr Tasawar then walked to the cash register and removed the drawer, placing it on the counter. The applicant began removing notes from the drawer and said: "Don't try and push the panic button". 16The applicant then left the store. As he walked out the exit door said: "Don't try calling the police". 17The proceeds of the robbery were $1500.00 in cash. Count 3 18At about 12:35am on Sunday 9 October 2011 a 7-Eleven store attendant, Minhaj Mohammed, saw the applicant enter his store at Artarmon. The applicant approached Mr Mohammed and removed a silver coloured revolver from his pocket. He then put it back in his pocket and said: "Give me the money". 19Mr Mohammed pressed the till release button and removed the drawer from the cash register before placing it on the counter. The applicant took the money from the drawer and walked out of the store. 20The proceeds of the robbery were $400.00. Count 4 21At about 3:00am on Monday 17 October 2011 a 7-Eleven store attendant, Saqib Husain, saw the applicant enter his store in the city. Mr Husain said to the applicant: "How can I help you?" 22The applicant replied: "I've got this". 23At that point the applicant removed a silver coloured revolver from the pocket of his hooded jumper and held it out for a few seconds before putting it back into his pocket. He then said to Mr Husain: "Open the till and do not raise the alarm. Hand over all the cash you've got in there." 24Mr Husain removed the drawer from the cash register and placed it on the counter. The applicant began to remove money from the drawer before saying: "I want 6 packets of Peter Jackson Blues". 25Mr Husain handed over a number of packets of cigarettes to the applicant who put them down his jumper before walking out of the store. 26The proceeds of the robbery were about $195.00 and 6 packets of cigarettes. Count 5 27At about 10:45pm on Tuesday 18 October 2011 a 7-Eleven store attendant, Dhrunal Patel, was preparing to close the store. The applicant entered and enquired about the price of a packet of cigarettes. The applicant then said to Mr Patel: "I need money". 28When Mr Patel directed the applicant to a nearby ATM, the applicant replied: "No, give me all your money". 29At that point, the applicant removed a silver coloured revolver from his pocket. Mr Patel then removed the drawer from the cash register and placed it on the counter in front of the applicant who took the money from it and walked out of the store. 30The proceeds of the robbery were $500.00. Count 6 31At about 4:50am on 30 October 2011 a 7-Eleven store attendee, Bhaumik Patel, was working in his store in Surry Hills. The applicant entered the store and said: "Come outside, I need your help." 32Mr Patel replied: "No, I can't come outside". 33The applicant then left the store but returned a short time later and asked Mr Patel for two packets of cigarettes. Mr Patel turned his back on the applicant to retrieve the cigarettes and when he turned around again the applicant said: "I have a gun. Give me whatever you have in the till." 34The applicant then reached into his right pocket and removed a silver revolver, the barrel and handle of which were observed by Mr Patel. The applicant then placed the revolver back into his pocket and said: "Open the till and just give me the money, otherwise I will shoot you. I give you 30 seconds." 35Mr Patel removed the money from the till and placed it in a plastic bag which he handed to the applicant. The applicant then walked out of the store. 36The proceeds of the robbery were $400.00 in cash. 37On the morning of 8 November 2011 police attended the applicant's workplace and arrested him. A search warrant executed at the applicant's residence resulted in the seizure of a silver revolver from his bedroom. It was not in working order at the time and the sentencing judge noted (at ROS 7) that the Crown could not establish that it was working at the time of the commission of any of the offences. 38When he was first arrested, the applicant denied being responsible for the robberies. In a subsequent record of interview, he admitted responsibility but said that he had committed the offences under duress, having been forced to do so by an acquaintance who was "on the run". The sentence proceedings 39The sentence proceedings extended over several days. The applicant gave evidence and initially asserted that the offences were committed under duress. However, he later withdrew that assertion. 40A Pre-Sentence Report tendered before the sentencing judge noted that the applicant was 25 years of age. He was born in Pakistan, and married an Australian citizen in 2009. He and his wife separated some 18 months later. 41The applicant undertook his entire education in Pakistan, completing the equivalent of Year 12 at the age of 18 in 2005. He undertook a short period of employment with friends and family in Pakistan prior to arriving in Australia in 2006 on a student visa. He had been employed as a machine operator for a period of 2 years and was in this employment when arrested. 42A psychological report prepared by Raymond Hudd was tendered before the sentencing judge. Mr Hudd concluded that the applicant was exhibiting symptoms which were consistent with chronic post-traumatic stress disorder. Mr Hudd concluded that the applicant required ongoing psychological counselling to assist him to resolve the severity of his symptoms. 43A number of testimonials were tendered before the sentencing judge. The applicant's former employer described him as a person who had a good work ethic and who was well liked by his work colleagues. He expressed surprise at the applicant's involvement in the offending. The applicant's uncle also provided a testimonial in which he said that although he had lost touch with the applicant at or about the time of his marriage (the marriage apparently not having met with the approval of the applicant's family) he was nevertheless willing to support him. Written testimonials were also provided by the applicant's father, mother, brother and sisters, all of whom pledged ongoing support for the applicant. The findings of the sentencing judge 44The sentencing judge found (at ROS 9) that the applicant's pleas were entered at a "very early" stage. Her Honour considered whether the utilitarian value of those pleas had been eroded by the fact that the applicant had asserted that he was acting under duress, only to later withdraw such assertion. She ultimately concluded (at ROS 9) that a reduction of 25 percent remained appropriate. However her Honour said: "...but I certainly do see the way the matter was conducted and what (the applicant) purported to do in terms of moving responsibility from himself as an impact upon considerations of contrition and remorse and this is a matter to which I will turn later in these remarks." 45Her Honour then said (at ROS 12): "As I understand it, the Crown's submission is as a result there should be a moderation of the utilitarian discount. In my view, the most appropriate way to deal with this is not in terms of utilitarian aspect (sic) but in relation to the impact on his contrition and remorse, because clearly what he was attempting to do was to move blame elsewhere. It is though the position that he now accepts responsibility and this feature, that is that he is now accepting of that responsibility, will assist him in his rehabilitation." 46Her Honour took into account (at ROS 10-11) the testimonial material. She accepted (at ROS 12) a submission by the Crown that general deterrence was a primary consideration but was not persuaded that there was a particular need for specific deterrence. 47Her Honour found (at ROS 12) that the applicant's prospects of rehabilitation were "very good" and that there was "very good potential that the applicant would, in due course, resume a law abiding life". Her Honour also took into account (at ROS 13) the fact that apart from the presence of his uncle, the applicant was in a country away from his family and that as a consequence his conditions of custody were rendered more onerous. 48Finally, her Honour concluded (at ROS 13) that a finding of special circumstances was warranted on the basis that: (i)this was the applicant's first period in full time custody; (ii)there was a requirement for partial accumulation; (iii)there was a requirement for some assistance upon release from custody; and (iv)that the applicant had very good prospects of rehabilitation. 49Her Honour made specific reference to the principle of totality (at ROS 13) before proceeding to impose the sentences I have outlined. The Grounds of appeal Ground 1 - Her Honour breached s. 45(1) of the Crimes (Sentencing Procedure) Act 1999 in failing to impose a non-parole period in respect of count 7 Her Honour's reasons 50As I have previously noted, the offending in count 7 attracted a maximum penalty of 14 years imprisonment, with a standard non-parole period of 3 years. At ROS 13-14, her Honour said: "...In relation to counts 1, 2,7 and 8, the sentence I would have imposed prior to reduction for utilitarian considerations of twenty five percent is one of four years, reduced to three years. Each of those sentences will be fixed terms and I decline to specify a non-parole period because of the sentences I intend to impose in respect of counts 5 and 6." 51Section 45 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") is in the following terms: 45 Court may decline to set non-parole period (1) When sentencing an offender to imprisonment for an offence or, in the case of an aggregate sentence of imprisonment, for offences (other than an offence or offences set out in the Table to Division 1A of this Part), a court may decline to set a non-parole period for the offence or offences if it appears to the court that it is appropriate to do so: (a) because of the nature of the offence to which the sentence, or of each of the offences to which an aggregate sentence relates, or the antecedent character of the offender, or (b) because of any other penalty previously imposed on the offender, or (c) for any other reason that the court considers sufficient. (2) If a court declines to set a non-parole period for a sentence of imprisonment or an aggregate sentence of imprisonment, it must make a record of its reasons for doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence. Submissions of the parties 52Counsel for the applicant submitted that because the offence in count 7 carried a standard non-parole period, the sentencing judge had erred in imposing a fixed term. The Crown conceded that error but submitted that it could be properly rectified by this Court in either of two ways. 53Firstly, the Crown submitted that it was open to treat the fixed term as a non-parole period and then impose an additional term. Such an approach was adopted by this Court in Leddin v R [2008] NSWCCA 242; KC v R [2009] NSWCCA 110; Leslie v R [2009] NSWCCA 283 and KAF v R [2009] NSWCCA 184. Alternatively, the Crown submitted that it was open to regard the fixed term as the total sentence, from which a non-parole period and additional term could be calculated. Such an approach was adopted by this Court in Forbes v R [2009] NSWCCA 292. 54Whilst conceding that it was open to the Court to follow either approach, the Crown submitted that the former would be more appropriate. It was submitted that this approach better reflected the apparent intention of the sentencing judge, and was also consistent with the principle that when accumulating multiple sentences the fixed term should reflect the appropriate minimum term or non-parole period: R v Thomas (1992) 64 A Crim R 269; Giles v DPP [2009] NSWCCA 308. 55Counsel for the applicant accepted either alternative was open but submitted that the second was preferable. He pointed to the applicant's plea as a factor which rendered the standard non-parole period of less significance and also relied upon the fact that the applicant's possession of the firearm count was an aggravating element of the offending in counts 1 to 6. He also pointed to the fact that it could not be established that the firearm was in working order when the offending in counts 1 to 6 took place. The essence of counsel's submission, as I understood it, was that the imposition of a total term of imprisonment of 3 years was consistent with the fact that the offending fell towards the lower end of the scale. Consideration and conclusion 56The offence in count 7 attracted a standard non-parole period. As a consequence, it is one of the offences in the table which is contained in Division 1A of Part 4 of the Sentencing Act. Accordingly, in view of the provisions of s. 45 of that Act, the sentencing judge erred in imposing a fixed term for that offence. 57It will be apparent from the Crown's submissions that differing approaches have been adopted when this Court has been asked to correct an error of that nature. Those approaches were the subject of discussion by R A Hulme J in Collier v R [2012] NSWCCA 213 commencing at [52]. His Honour (at [55]) pointed out that where a fixed term of imprisonment is erroneously imposed, and absent any reason or other indication being given, this Court is left to speculate as to whether the sentencing judge intended the fixed term to represent a non-parole period or the total sentence. 58In the present case, the sentencing judge stated that she imposed the fixed term in count 7 having regard to the sentences in respect of counts 5 and 6. That may indicate that her Honour regarded the fixed term as being the equivalent of a non-parole period. However, there is considerable force in the submissions advanced by counsel for the applicant that the offending was towards the lower end of the scale, such that a total sentence of 3 years imprisonment would be appropriate. 59In my view, this Court should rectify the error by treating the fixed term as the total sentence, from which a non-parole period can be calculated. I should make it clear that I have come to that view having regard to the circumstances of the present case. It may well be that the facts and circumstances of other cases where the Court is asked to intervene to correct an error of this kind would warrant the alternative approach being adopted. Ground 2 - Her Honour failed to properly apply the principle of totality Her Honour's reasons 60At ROS 13 her Honour said: "The principle of totality must be given consideration to (sic) and in relation to that principle, the matter of concurrence and accumulation. In my view, in this case, totality looms large in respect of this sentencing exercise. The effective non-parole (period) imposed in this case is the one which in my view appropriately reflects the objective seriousness of the offending, the requirement for general deterrence and the subjective matters." 61Her Honour then proceeded to impose the sentences I have previously outlined. Submissions of the applicant 62In written submissions counsel for the applicant pointed to the fact that despite the offending in counts 5 and 6 being almost identical in criminality to that in counts 1,2,3 and 4, the sentences which had been imposed by her Honour in respect of counts 5 and 6 were significantly different. It was submitted that this was indicative of a failure on the part of the sentencing judge to properly assess the criminality for each of the robbery offences and, in turn, indicative of a failure to properly apply the principle of totality. Submissions of the Crown 63The Crown submitted that the applicant's complaint ignored the structure of the sentences which her Honour had imposed. Moreover, the Crown submitted that the sentencing judge's remarks made it clear that she was mindful of the principle of totality in exercising her sentencing discretion, having made specific reference to it. Consideration and conclusion 64The totality principle requires a sentencing judge to (inter alia) evaluate the overall criminal responsibility: Mill v R (1988) 166 CLR 59. It also requires a sentencing judge to be mindful of the fact that in circumstances where an offender stands to be sentenced in respect of offences containing common elements, it would be wrong to punish the offender twice for the commission of those elements: Pearce v The Queen [1988] HCA 57; (1998) 194 CLR 610; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616. 65Her Honour made express reference to the principle of totality. It is evident that she was mindful of the need to apply it. 66Moreover, the submission advanced by counsel for the applicant, tends to overlook the fact that in cases of multiple offending, it is open to a sentencing judge to treat the latter offences more seriously and to impose lengthier sentences. In oral argument counsel for the applicant fairly accepted that such a course was open in the present case. 67For these reasons ground 2 is not made out. Ground 3 - The sentences imposed are manifestly excessive Submissions of the applicant 68The submissions of counsel for the applicant in support of this ground concentrated upon the guideline judgment of this Court in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. In particular, counsel submitted that the present offending was characterised by the circumstances referred to by Spigelman CJ (at [162]; 380) as being those which might attract the application of the guideline: (i)a young offender with no or little criminal history; (ii)a weapon, like a knife, capable of killing or inflicting serious injury; (iii)a limited degree of planning; (iv)limited, if any, actual violence but a real threat thereof; (v)a vulnerable victim such as a shopkeeper or taxi driver; (vi)a small amount taken; (vii)a plea of guilty. 69In terms of these factors, counsel for the applicant pointed out that: (i)the applicant was aged 24 with no prior criminal history; (ii)it had not been established that the firearm was working at the time of the offending; and (iii)the total taken across 6 robberies was 7 packets of cigarettes and $3,495.00 in cash. 70Further, counsel drew attention to the fact that the guideline in Henry assumed a late plea of guilty attracting a discount of 10 percent, whereas her Honour had found that the applicant's pleas in the present case (having been entered in the Local Court) attracted a discount of 25 percent. This, he submitted, made the manifest excess of the sentences imposed even more apparent. 71Finally, and in addition to all of these matters, it was submitted that the sentences were unreasonable or plainly unjust having regard to: (i)the available maximum penalties; (ii)the fact that the offences contrary to the Firearms Act related to a firearm, the applicant's possession of which had aggravated the robbery offences, (iii)the applicant's favourable prospects of rehabilitation; and (iv)the absence of any need for specific deterrence. Submissions of the Crown 72The Crown submitted that the applicant's offending was distinguishable in material respects from offending which might attract the application of the Henry guideline. In particular, the Crown submitted that: (i)the applicant's offending was not limited to a single instance and could not be regarded as arising from a single criminal enterprise; (ii)the applicant's use of the weapon involved, at the very least, exposing its existence to the various victims; (iii)the total amount taken could not be properly described as "small". 73The Crown acknowledged that the applicant was relevantly young at the time of his offending. However, the Crown submitted that the nature of the offending attracted a particular need for general deterrence and that the applicant's initial assertion of duress meant that there was a total absence of remorse and contrition. Finally, the Crown submitted that her Honour's finding of special circumstances resulted in a generous reduction in the non-parole period which was reflected in the overall aggregate sentence. Consideration and conclusion 74In order to succeed in establishing this ground, the applicant must establish that the overall sentence imposed was unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321. For the reasons that follow, I have come to the view that this ground is not made out. 75Although the guideline judgment in Henry was expressed to be applicable to an offence contrary to s. 97(1) of the Crimes Act 1900, a sentencing judge is entitled to take it into account, as a means of assessing the seriousness of an offence contrary to s. 97(2): R v Franks [2005] NSWCCA 196 at [32]; R v Hamied [2007] NSWCCA 151 at [11]-[13]. 76The factors identified by Spigelman CJ in Henry as those which would attract the application of the guideline were present, to varying degrees, in the applicant's offending. However, the emphasis placed by counsel for the applicant upon the decision in Henry tended to overlook the fact that the offending in the present case was not a single episode of criminality. It involved the commission of multiple offences, over several weeks, involving six separate victims. General deterrence was, as her Honour pointed out, an important consideration: R v Sharma [2002] NSWCCA 142 at [74] per Spigelman CJ. 77Further, absent a finding of special circumstances, the application of the statutory ratio to a total sentence of 9 years imprisonment would have resulted in a non-parole period of 6 years and 9 months imprisonment. Her Honour's finding of special circumstances reduced that non-parole period to one of 5 years. Whilst I do not suggest that the finding was not open, the practical effect of it was particularly generous from the applicant's perspective. 78For these reasons, I do not consider that the sentences imposed were manifestly excessive. It follows that this ground is not made out. ORDERS 79In view of the foregoing, and bearing in mind the conclusion reached in respect of ground 1, I propose the following orders: (1)Leave to appeal is granted; (2)The sentence in respect of count 7 is quashed and in lieu thereof the applicant is sentenced to a non-parole period of 2 years and 3 months imprisonment commencing on 8 November 2011 and expiring on 7 February 2014 and an additional term of 9 months imprisonment commencing on 8 February 2014 and expiring on 7 November 2014. (3)The appeal is otherwise 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: 01 October 2014