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11
Court of Criminal Appeal 20 April 2005

R v Ibrahimi

[2005] NSWCCA 153

Assault & violenceTheft & property

Citation: R v Ibrahimi [2005] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 20 April 2005
Judge(s): Grove J, Barr J, Latham J

Background

The applicant pleaded guilty in the Parramatta Local Court to one count of robbery in company under s 97(1) of the Crimes Act, with a second, almost identical offence taken into account on a Form 1. Both offences occurred in January 2003 at suburban railway stations in western Sydney, where the applicant approached victims at night with another male and demanded wallets, cash, and personal items by threatening to hurt them.

At sentence in the District Court, Judge Delaney imposed a four-year term of imprisonment with a two-year non-parole period. The applicant was 19 years old at the time of the offences, had a limited prior record, and was in full-time employment at the date of sentence. He was also subject to a conditional liberty bond at the time of the second offence.

The applicant sought leave to appeal, contending that the sentencing judge fell into error on three distinct grounds and that the resulting sentence was manifestly excessive.

  • Whether the sentencing judge wrongly treated threatened violence as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act, when threat of force is an element of robbery
  • Whether the sentencing judge erred in treating the vulnerability of the victims as an aggravating factor under s 21A(2)(l)
  • Whether the sentencing judge gave insufficient weight to the guilty plea and improperly reduced the utilitarian discount because of the strength of the Crown case
  • Whether the sentence of four years imprisonment with a two-year non-parole period was manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal found that the sentencing judge did err by expressly treating threatened violence as an aggravating factor under s 21A. Under s 21A(2), a court cannot apply additional weight to a factor that already forms an element of the offence being sentenced. Some degree of threat or force is an element of robbery, so this consideration should not have been separately counted against the applicant. The Court accepted that this ground was made out.

On the vulnerability issue, the Court declined to rule definitively on the precise scope of s 21A(2)(l). It noted, however, that the applicant's proposed interpretation of vulnerability as limited to personal attributes or occupational characteristics would be unduly narrow, and that waiting alone at a railway station late at night was capable of engaging the provision. This ground was not upheld.

Regarding the guilty plea, the Court was satisfied that the sentencing judge had correctly treated the acknowledgment of guilt and the expression of remorse as separate bases for a discount, rather than conflating them. The reference to the strength of the Crown case was treated as bearing on the utilitarian value of the plea, not as negating a discount altogether. The Court found a composite discount in excess of 20 per cent had been applied, which fell within the sentencing discretion.

Although the applicant established error on the first ground, s 6(3) of the Criminal Appeal Act 1912 required the Court to resentence only where a different sentence was warranted in law. The Court concluded that no lesser sentence was justified. The offence was objectively serious, the applicant was the principal aggressor, he committed the offence while subject to a conditional liberty bond, and the second offence on the Form 1 occurred just one week earlier. General deterrence, punishment, and denunciation were properly reflected in both the head sentence and the non-parole period.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act, a sentencing court cannot treat a factor as aggravating if it is already an element of the offence being sentenced. Threatened violence cannot be separately aggravated in a robbery sentence on that basis.
  • Establishing error in the sentencing process does not automatically lead to resentencing. Section 6(3) of the Criminal Appeal Act 1912 requires the appellate court to be satisfied that a different sentence is actually warranted in law before it will intervene.
  • In dismissing the appeal despite confirmed error, the Court of Criminal Appeal applied the principle from R v Henry that commission of a robbery while on conditional liberty, combined with a further offence on a Form 1, justifies a sentence above the guideline's "narrow range."
  • The utilitarian value of a guilty plea may legitimately be assessed in light of the strength of the Crown case, including the existence of CCTV footage and full admissions. This does not amount to an improper reduction of the discount; it reflects the limited practical benefit the plea provided to the administration of justice.
  • Contrition and the utilitarian value of a guilty plea are recognised as distinct bases for a sentencing discount and should be considered separately when formulating the appropriate reduction.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act (NSW), s 21A (aggravating and mitigating factors)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Henry & ors [1999] NSWCCA 111
- R v Wickham (2004) NSWCCA 193
- R v Scott [2003] NSWCCA 286
- R v Carter [2001] NSWCCA 245
- R v Sutton [2004] NSWCCA 255
- R v Tran [2004] NSWCCA 366
- Ranse, NSWCCA (unreported, 8 August 1994)