Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Zuhaib Shahzad v R [2016] NSWCCA 94 Hearing dates: 27 April 2016 Decision date: 22 July 2016 Before: Hoeben CJ at CL at [1] Campbell J at [2] N Adams J at [3] Decision: (1) Leave to appeal granted. (2) Appeal allowed. (3) Quash the sentence of Frearson DCJ imposed on 20 March 2015. (4) Sentence the applicant to a period of imprisonment for eight years and nine months to date from 13 March 2011 and expiring on 12 December 2019 with a non-parole period of five years and six months. The applicant will become eligible for parole on 12 September 2016. Catchwords: CRIMINAL LAW – application for leave to appeal sentence – parity of sentence between co-offenders – justifiable sense of grievance – leave granted – appeal allowed Legislation Cited: Crimes Act 1900 (NSW), ss 97(1), 97(2), 154A(1)(b) Crimes (Sentencing Procedure) Act 2001 (NSW), ss 3A, 32 Firearms Act 1996 (NSW), s 7(1) Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Lam v R [2014 NSWCCA 50 Loader v R; Dunn v R [2013] NSWCCA 215 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 R v Voss [2003] NSWCCA 182 Tuivaga v R [2015] NSWCCA 125 Category: Principal judgment Parties: Zuhaib Shahzad (Applicant) Regina (Respondent) Representation: Counsel: K Averre (Applicant) N Noman SC (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/00081228 Publication restriction: No Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 20 March 2015 Before: Frearson DCJ File Number(s): 2011/00081228 Judgment 1. HOEBEN CJ at CL: I agree with N Adams J and with the orders which she proposes. 2. CAMPBELL J: I agree that the orders proposed by N Adams J should be made for the reasons her Honour gives. 3. N ADAMS J: The applicant seeks leave to appeal against the severity of the sentence imposed upon him at the District Court at Sydney on 20 March 2015. The sole ground of appeal is that the applicant suffers a justifiable sense of grievance when comparing the sentence imposed upon him with the sentence imposed upon his co-offenders. 4. On 1 May 2014, the applicant and his two co-offenders Wasim Abdul Kherkhah and a juvenile offender who shall be referred to herein as OA were arraigned on an indictment containing two counts of robbery armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW) and one count of conspiracy to commit a robbery whilst armed with a dangerous weapon. The applicant and his two co-offenders all pleaded not guilty. A trial proceeded before Frearson DCJ and a jury of twelve. The jury returned verdicts of guilty in respect of each count against all three offenders on 6 June 2014. 5. The maximum penalty for an offence contrary to s 97(2) of the Crimes Act 1900 is 25 years' imprisonment. Conspiracy is a common law offence for which the penalty is at large. 6. Proceedings on sentence were conducted in relation to all three offenders concurrently and on 20 March 2015 all three offenders were sentenced at the same time. The applicant was sentenced to an aggregate term of imprisonment of nine years and six months with a non-parole period of six years, to date from the day he went into custody on 13 March 2011. 7. The indicative sentence for Count 1 on the indictment ('the Liquorland robbery'), taking into account a Form 1 offence of allowing himself to being carried in a stolen vehicle contrary to s 154A(1)(b) of the Crimes Act 1900, was imprisonment for seven years and four months. For Count 2 ('the Brewhouse robbery') the indicative sentence was imprisonment for seven years and three months. In respect of Count 3, the conspiracy to rob the Prospect Hotel, the indicative sentence was one of imprisonment for five years and three months. 8. The co-offender Mr Kherkhah received an aggregate sentence of imprisonment for eight years and three months with a non-parole period of five years. In sentencing Mr Kherkhah for the Liquorland robbery, his Honour took into account on a Form 1 an unrelated armed robbery contrary to s 97(1) of the Crimes Act 1900 as well as an offence of allowing himself to be carried in a stolen vehicle. He was also sentenced for two offences of possess prohibited pistol contrary to s 7(1) of the Firearms Act 1996 (NSW). The co-offender OA received an aggregate sentence of seven years with a non-parole period of four years and three months. In addition to the offences on the indictment, OA was sentenced in relation to an offence of possess prohibited firearm contrary to s 7(1). Two unrelated offences of armed robbery contrary to s 97(1) and a further offence of possess prohibited firearm were taken into account on a Form 1. 9. The applicant seeks leave to appeal from the sentence imposed upon him on a sole ground of appeal asserting disparity as between the sentence imposed upon him as compared with those imposed upon his co-offenders. Factual background 1. There was no dispute as to the facts on sentence and they are common to each of the offenders. Despite his Honour having heard all of the evidence at the trial, an agreed statement of facts was tendered at the sentence proceedings and formed the basis of the facts as found for the purposes of sentencing. Liquorland robbery (Count 1) 1. At about 8pm on 6 March 2011, the applicant and his co-offenders Wasim Kherkhah and OA drove to Liquorland at Kings Langley in a white Camry sedan and parked in an adjacent car park. 2. Each offender was disguised, wearing dark clothing, a balaclava and gloves. One was armed with a 9mm pistol with a silencer and one with a knife. The third offender was carrying a tartan bag. 3. The offender with the pistol held it to the head of the store attendant Ricky Young and demanded that he open the safe. After being told that it would take four minutes to open the safe, the offenders took cash from the till, as well and cigarettes, before fleeing in the white Camry. As the offenders were leaving, the offender with the pistol told Ricky Young to run to the backroom "or I'll shoot you." 4. In the course of the robbery, the offender with the knife had made two elderly customers at the back of the store sit on the floor. That offender had also told a second male employee, who appeared from the rear storeroom, to sit on the floor. 5. The property stolen had a total value of $3,645. Brewhouse robbery (Count 2) 1. The events the subject of Count 2 on the indictment occurred on 7 March 2011 at Lalor Park. At about 11pm, the applicant, Mr Kherkhah, OA and a fourth co-offender Edris Barez arrived at the car park of the Brewhouse Hotel in the same white Camry that was used in the Liquorland robbery. 2. Three of the offenders entered the Hotel through the rear while the fourth remained in the Camry. Once again, one of the offenders was armed with a pistol while another carried a knife, and the third person carried only a tartan carry bag. The offenders wore dark clothing, balaclavas, hoods and other face coverings. 3. The offenders threatened the staff of the Hotel with the weapons. James Mayol, a security guard, had a gun pointed at him and was ordered to sit on the ground. The offenders took money from the till. The offender with the pistol pointed it at the manager, Tracey Kisiel, and demanded that she lead him to the safe in the manager's office. She did so and that offender obtained approximately $28,000 from the safe. 4. The three offenders fled out the rear of the Hotel and into the waiting car. 5. The money stolen amounted to $31,187. Prospect Hotel conspiracy (Count 3) 1. At around 9pm on 8 March 2011, CCTV captured the applicant, Mr Kherkhah and OA visiting the Prospect Hotel in Prospect. They conducted surveillance for about 20 minutes. 2. On 9 March 2011, the applicant and Mr Kherkhah stopped the applicant's car in area of the M4 adjacent to the Prospect Hotel. They were apparently overheard speaking of needing a torch and about the place being "only two minutes away." 3. At about 8pm on 13 March 2011, the three offenders and other men drove to the same location on the M4 in the applicant's car. Another co-offender Gurbaz Nagi was the driver on this occasion. The applicant, Mr Kherkhah and OA left the vehicle and went into the bushes adjacent to the Hotel. Their movements were monitored by PolAir. Shortly thereafter police arrested the applicant and OA together on Toongabbie Road. Mr Kherkhah was arrested on Blacktown Road. Remarks on Sentence Relative culpability of the three co-offenders 1. The sentencing judge considered that it was not possible to differentiate between the applicant, Mr Kherkhah and OA in terms of their culpability for the offending conduct in Counts 1 and 2. His Honour said of Count 1: "All three offenders will be sentenced on the basis that they were intruders. All bear full responsibility for what took place and this is not one of those cases where a participant in a joint enterprise can be considered less culpable than others by virtue of the role that was played. It is not one of those cases and I treat them all, in terms of the objective gravity, as being similarly culpable." 1. In relation to the Brewhouse robbery, his Honour observed: "This was a particularly serious example of this type of offence. There is no reason to distinguish between the culpability of the offenders. It was a well-planned, thuggish, brazen, and well-organised robbery by young men with weapons." 1. His Honour made no express finding as to relative culpability in relation to the conspiracy charge. Given that no material difference as between the relative culpability of the three offenders can be ascertained from the agreed facts, I am prepared to accept that his Honour sentenced the offenders on the basis that they were also all equally culpable for that offence. Findings in respect of the applicant 1. The applicant was raised in Pakistan. He moved to Australia as part of a sponsored family at the age of 15 whereupon he settled in Wentworthville and later in Granville. His father left the family and was absent for some 10 years. As a consequence, the applicant experienced financial disadvantage. At the age of 13, the applicant and his family were robbed at gunpoint in their home. 2. In 2010, the applicant travelled to Pakistan against his will to marry a cousin as part of an arranged marriage. The applicant was subsequently reported to police for non-consummation of the marriage and was incarcerated for a period of time. The applicant's experiences in custody in Pakistan caused the applicant to develop post-traumatic stress disorder ("PTSD"), a condition for which he has self-medicated with alcohol and illicit drugs. 3. The applicant did not give evidence on sentence. A psychologist's report under the hand of Jason Borkowski was tendered on behalf of the applicant at sentence, which included a diagnosis of PTSD and substance abuse disorder. Mr Borkowski was cross-examined at length in the course of the sentence proceedings. Although his Honour accepted the diagnosis of PTSD, he ultimately rejected the applicant's claim to Mr Borkowski that a drug debt in the amount of $20,000 was a significant motivator of his offending behaviour. 4. Although the sentencing judge recounted the above history in his remarks on sentence, he made no finding as to whether he considered the applicant's subjective circumstances as being disadvantaged in any way. 5. The applicant was 21 years old at the time of Liquorland and Brewhouse robberies. He turned 22 shortly before his arrest for the conspiracy charge. 6. The applicant had only one prior conviction on his criminal record. That conviction was for common assault. The Pre-Sentence Report tendered on his behalf on sentence disclosed that he had an "outstanding work ethic" in custody and showed leadership qualities, although there had been some early misconduct. 7. The sentencing judge found the applicant's prospects of rehabilitation to be "fair" at the highest. He further found that, although the applicant accepted responsibility for his offending behaviour, there was no evidence of genuine remorse. 8. His Honour found special circumstances being the applicant's mental condition and varied the statutory ratio such that the non-parole period represented 63% of the total aggregated sentence imposed on the applicant. Findings in respect of co-offender Mr Kherkhah 1. The co-offender Mr Kherkhah moved with his family from Afghanistan to Australia as a child. He was described as experiencing social isolation and difficulties in his education. He was sexually assaulted while he was in Year 8 and consequently also suffers from PTSD. The sentencing judge made a positive finding that Mr Kherkhah's life had been "quite disadvantaged." 2. He was 18 years old at the time of the commission of the offences. The sentencing judge took into account his "state of maturity," making a finding that he is "…much younger than Mr Shahzad." He had previously been dealt with in the Children's Court for an offence of armed robbery. He was sentenced in relation to matters additional to those upon which the applicant was sentenced, being two further counts of being in possession of a pistol. He also asked for an additional armed robbery offence to be taken into account on a Form 1 in relation to the Liquorland robbery. 3. His Honour could not conclude that Mr Kherkhah was unlikely to re-offend and noted that he had recommenced using drugs in custody. His Honour found that that he presented a moderate to high risk of recidivism and that he exhibited a "low level" of remorse. Findings in relation to the juvenile co-offender 1. The juvenile offender OA was aged 17 years at the time of the commission of the Liquorland and Brewhouse robberies. His father had been murdered by the Taliban in Afghanistan when OA was four years old. As a result his family fled to Pakistan. The applicant moved to Australia at the age of 10, where he was the victim of bullying at school. The sentencing judge found that, "…he has a particularly tragic background and a background of profound, and substantial, and obvious, disadvantage." 2. OA had previously received a sentence of probation in the Children's Court for an offence of robbery in company. At the time of being sentenced for these matters he was also sentenced in relation to an additional count of possessing a weapon. He asked for a further charge of possessing a weapon to be taken into account on a Form 1 in relation to that offence. He also asked that two offences of armed robbery be taken into account when being sentenced for the Liquorland robbery. 3. OA had no drug habit. His prospects of rehabilitation were found to be "at least fair but verging on good." His Honour also found that he was remorseful, exhibited no misconduct in custody, and that had been a "dramatic change in his behaviour in custody." The applicant's submissions 1. The applicant relies upon the difference between the aggregate sentence imposed upon him and those imposed upon co-offenders Mr Kherkhah and OA in circumstances where the sentencing judge declined to differentiate between their respective roles. Further, Mr Kherkhah and OA asked that further offences of armed robbery contrary to s 97(1) of the Crimes Act 1900 be taken into account on Forms 1. It is contended that the difference is such as would give rise to a justifiable sense of grievance on the part of the applicant. 2. On behalf of the applicant it was contended that the only difference between the three young offenders is their age at the time of the commission of the offences: 17 years, 18 years and nearly 22 years respectively. 3. The applicant submits that the co-offenders were, to a large degree, like offenders who ought to be treated in a like manner: per French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28]. 4. Co-offender Eddie Barez was also sentenced in relation to the Brewhouse robbery and Prospect Hotel conspiracy and Gurbaz Nagi in relation solely to the Prospect Hotel conspiracy. The applicant does not rely on any disparity with the sentences imposed upon those offenders. The respondent's submissions 1. The respondent submits that the applicant has not demonstrated error. It is contended that the difference between the aggregate sentences imposed upon the applicant, Mr Kherkhah and OA is explicable by reference to the different subjective findings made in respect of each co-offender. The differentiation is said to give effect to those findings. 2. The respondent relied upon this decision of this court in Tuivaga v R [2015] NSWCCA 125 where Hoeben CJ at CL (with whom RA Hulme and Wilson JJ agreed) observed the following: "[55] It is of significance that the same judge sentenced both the applicant and Barnes. He was fully cognisant of their moral culpability and of their subjective cases. Specifically, his Honour was fully aware of the difference in their subjective cases and he reflected that difference by a reduction of 6 months in the non-parole period of imprisonment to be served by the applicant. [56] In such circumstances, where the primary judge has recognised the importance of the parity principle and has given effect to it, this Court has said that it will be cautious and not overly willing to intervene. Disparity which leads to appellate intervention must be "gross, marked or glaring" (Tan v R [2014] NSWCCA 96 at [39]). In Mammone v R [2013] NSWCCA 95 at [45] – [46] Latham J (with whom Button J and Grove AJ agreed) said: "45 ... The imposition of different sentences does not, without more, raise "equal justice" considerations. Moreover, a sense of grievance is only "justifiable" or legitimate if the application of objective criteria compels the court to that conclusion. The age, background, criminal history and role in the offence of various offenders may justify some disparity: Green v The Queen; Quinn v The Queen [2011] HCA 49 at [31].46 In particular, as the majority in Green & Quinn make clear,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." Consideration 1. It is well established that 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." Green v The Queen; Quinn v The Queen at [31]. 2. As Gibbs CJ observed in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, "…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." 3. As the plurarity observed in Green v The Queen; Quinn v The Queen at [62] (footnotes omitted): "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." 1. The authorities indicate that this Court should be slow to interfere with the discretion of a sentencing judge on the basis of disparity and that such intervention should only be on cases where the disparity is "gross, marked or glaring". This is particularly the case where, as here, the offenders are all sentenced by the same judge: Lam v R [2014 NSWCCA 50 at [42]; Loader v R; Dunn v R [2013] NSWCCA 215 at [91]-[96]. 2. In the present case the sentencing judge was undoubtedly conscious of the issue of parity observing, in the context of referring to s 3A of the Crimes (Sentencing Procedure) Act 2001 (NSW), that "there are also some equal justice considerations." His Honour gave detailed reasons for the sentences imposed, setting out the relevant subjective matters and making specific findings regarding remorse and prospects of rehabilitation. As none of the offenders had pleaded guilty, his Honour was in a position to observe all three offenders through both the trial and sentencing proceedings. Despite this, it is noted that none of the three offenders gave evidence before him. 3. The applicant has not established that the difference between the aggregate sentence imposed upon the applicant and that imposed upon OA gives rise to a justifiable sense of grievance. It is accepted, as is contended by the applicant, that OA had engaged in 'adult behaviour': R v Voss [2003] NSWCCA 182 at [14]. However, OA was still a child at the time of the commission of two of the three offences for which he was sentenced. His background of disadvantage and trauma eclipsed that of both the applicant and Mr Kherkhah. The sentencing judge expressly had regard to s. 6 of the Children (Criminal Proceedings) Act 1997 and the principles relevant to sentencing young offenders as set out in KT v R (2008) NSWCCA 51; 182 A Crim R 571 when he sentenced OA. 4. The differences as between the applicant and Mr Kherkhah are more difficult to identify. As the High Court observed in Green v The Queen; Quinn v The Queen, a difference in sentence can be justified upon the basis of differences as between the co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. 5. As for the part each of the offenders played in the criminal conduct, his Honour sentenced each on the basis that they were equally culpable. No differentiation on the basis of criminality is relevant. I note from the Remarks on Sentence that the evidence tended to suggest that the applicant was the only offender not holding a weapon. Despite this, his Honour assessed the criminality of the co-offenders as equal. 6. Turning to the differences in their subjective cases, I note the following features. 7. First, the applicant was nearly four years older than Mr Kherkhah, the difference being between 18 and nearly 22 years of age. While age is certainly a legitimate basis for differentiation, a young man of 21 years turning 22 years of age may not be considered significantly more mature than a young man of 18 years. The sentencing judge took into account Mr Kherkhah's "state of maturity" and found that he was "…much younger than Mr Shahzad." In circumstances where neither the applicant nor Mr Kherkhah gave evidence and in the absence of any expert evidence to that effect, it appears that such a finding could only have been based on the fact of their relative ages. 8. Second, there was a slight difference in their criminal histories in that the applicant's was less serious. Whereas the applicant only had a prior conviction for common assault, Mr Kherkhah had a prior conviction for armed robbery. 9. Third, the applicant was only being sentenced for the three matters of which he was convicted at trial. Mr Kherkhah was also being sentenced for additional firearms offences. 10. Fourth, whereas the applicant asked that a matter of take and drive conveyance be taken into account on a Form 1 in relation to the Brewhouse robbery pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999, Mr Kherkhah asked that a more serious, and unrelated, matter be taken into account, namely one offence of armed robbery in addition to an offence of deemed larceny. As Spigelman CJ observed in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at 159: "The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence." In these circumstances, it would be expected that the Mr Kherkhah's Form 1 matters would impinge in some way upon his sentence for the offence on the indictment. 1. Fifth, it is difficult to identify any significant differences in the subjective circumstances of the applicant and Mr Kherkhah. Both were diagnosed as suffering from PTSD. Both have suffered some disadvantage in their childhoods as set out above. Although his Honour expressly made a finding that Mr Kherkhah's life had been "quite disadvantaged," he made no finding either way on that issue in relation to the applicant. 2. Sixth, the sentencing judge found the applicant's prospects of rehabilitation to be "fair" at the highest and that there was no evidence of genuine remorse. His Honour observed that he could not make a finding that Mr Kherkhah was unlikely to re-offend. Moreover, he found that he presented a moderate to high risk of recidivism and exhibited a "low level" of remorse. 3. Overall, putting to one side the three to four year age gap, all of the differences as between the applicant and Mr Kherkhah pointed towards, if anything, the applicant's subjective features being more favourable than those of Mr Kherkhah. In circumstances where there was found to be no difference in their culpability, it is difficult to see how the applicant received a head sentence one year and three months longer and a non-parole period one year longer than that imposed on Mr Kherkhah. 4. A court will not intervene to re-sentence an offender based on perceived disparity unless the difference is "gross, marked or glaring." The question as to whether a difference in sentence is "marked" is one upon which reasonable minds may differ. For my part I accept that a difference in the non-parole period of twelve months and a difference in the head sentence of one year and three months are sufficiently marked as to warrant the intervention of this court. I accept that the disparity between the sentences imposed upon the applicant and Mr Kherkhah is such as would tend to give rise to justifiable sense of grievance on the part of the applicant. 5. I consider that the applicant has established error. Re-sentence 1. Error having been established, it is necessary for this Court to exercise afresh the discretion to re-sentence the applicant: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [42]. 2. An affidavit affirmed by the applicant on 7 April 2016 was filed in the application to be read in the event that error was established and the court proceeded to re-sentence. In re-sentencing the applicant I take into account the information contained in that affidavit pertaining to the applicant's commitment to his vocational training as well as his commitment to refrain from substance use. He is apparently managing his symptoms of post-traumatic stress disorder and depression with prescribed medication. 3. For the purpose of re-sentencing I accept the findings made by the sentencing judge. Consistent with the findings I have made above I am mindful of the need in re-sentencing the applicant to achieve parity with the sentence imposed on his co-offender Mr Kherkhah. I have taken into account the differences in the ages as between the applicant and Mr Kherkah. I am satisfied that some disparity as between their sentences is appropriate for that difference. I have taken into account the principle of totality. I make a finding of special circumstances based on the evidence as to the applicant's PTSD. 4. Having regard to the objective seriousness of the offending, the applicant's subjective features and the sentences imposed on his co-offenders, I consider that the appropriate sentence for the applicant is an aggregate sentence of eight years and nine months with a non-parole period of five years and six months. The indicative sentences are six years and nine months (for the Liquorland robbery), six years and eight months (for the Brewhouse robbery) and four years and ten months (Prospect Hotel conspiracy). ORders 1. I propose that the Court make the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentence imposed by Frearson DCJ on 20 March 2015. 4. Sentence the applicant to a period of imprisonment for eight years and nine months to date from 13 March 2011 and expiring on 12 December 2019 with a non-parole period of five years and six months. The applicant will become eligible for parole on 12 September 2016. ********** 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: 22 July 2016