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Court of Criminal Appeal 17 November 2004

R v Tarek Mohamadin

[2004] NSWCCA 401

DrugsTheft & property
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE DRUG DEPENDENT YOUNG OFFENDER AGGRAVATING FACTORS TAKEN INTO ACCOUNT

Citation: Tarek Mohamadin v R [2004] NSWCCA 401
Court: NSW Court of Criminal Appeal
Date: 17 November 2004
Judge(s): Bell J, Buddin J

Background

The applicant, a young man of Egyptian descent born in Australia, pleaded guilty in the District Court to three counts of armed robbery and asked that four further offences (two armed robberies and two robberies in company) be taken into account on sentencing. The offences followed a consistent pattern: the applicant and associates would order food for home delivery, lure the delivery person to a location near a park, and rob them at knifepoint. Seven offences were committed over approximately four months, with more than $800 in cash and two mobile phones taken in total.

The applicant was just under 19 at the time of the first offence, had no prior convictions, and had otherwise led an exemplary life. He had, however, developed a serious drug dependency beginning with cannabis at age 14 and progressing to cocaine, amphetamines, and ecstasy. He told the sentencing court he committed the offences to fund his drug use.

The sentencing judge in the District Court imposed an overall effective head sentence of 8 years imprisonment, with a non-parole period of 5 years, after applying a 25% discount for early guilty pleas. The applicant sought leave to appeal on the ground that the sentences were manifestly excessive and that the sentencing judge made several errors of principle.

  • Whether the sentencing judge erred by failing to treat the applicant's drug dependency as a mitigating factor.
  • Whether the overall sentence was manifestly excessive given the applicant's favourable subjective circumstances, the unsophisticated nature of the offences, and the short period over which they occurred.
  • Whether the sentencing judge erred by treating aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (use of violence, use of a weapon, and commission in company) as additional aggravating factors when those elements were already inherent in the offences charged.

Decision

Drug dependency as mitigation: The Court considered the principles from R v Henry (1999) 46 NSWLR 346, which confirm that drug dependency is not automatically mitigating but can be relevant to factors such as the degree of planning, the offender's state of mind, and prospects for rehabilitation. The Court found the sentencing judge's approach consistent with those principles and identified no error in declining to treat drug dependency as a straightforward mitigating factor in the circumstances.

Manifest excess: The Court rejected the submission that the overall sentence was manifestly excessive. Each individual offence, considered alone, fitted the profile described in Henry as typically attracting 4 to 5 years (based on a late plea). The applicant committed seven such offences involving planning, vulnerable victims, and a sustained period of offending. Taking the favourable subjective features into account, the Court was not persuaded the sentences were outside the appropriate range.

Aggravating factors under s 21A(2): The Court accepted that the sentencing judge had fallen into error by referring to the use of violence, the use of a weapon, and commission in company as aggravating factors, when these were elements of the offences themselves. Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 expressly prohibits a court from treating as an additional aggravating factor something that is already an element of the offence.

Effect of the error: Despite accepting the s 21A(2) error, the Court was not satisfied that a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912. The objective gravity of the conduct, the multiplicity of offences, and the other circumstances meant the sentences would have been the same absent the error.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must not treat as an aggravating factor any circumstance that is already an element of the offence charged, and doing so constitutes error.
  • Establishing a sentencing error does not automatically produce a different outcome: where the Court of Criminal Appeal is not satisfied that a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912, the appeal will be dismissed despite the error being accepted.
  • The principles in R v Henry confirm that drug dependency does not, of itself, mitigate an armed robbery offence, though it may be relevant to questions of planning, state of mind, and rehabilitation prospects.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that the multiplicity of offences and their sustained character can support a substantial aggregate sentence even where subjective circumstances are favourable.
  • A 25% discount for early guilty pleas was upheld as appropriate where pleas were entered at the earliest available opportunity.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Morgan (1993) 70 A Crim R 358
- R v Wickham [2004] NSWCCA 193
- R v Cramp [2004] NSWCCA 264