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Court of Criminal Appeal 9 June 2005

Regina v Amani SUAALII

[2005] NSWCCA 206

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING SPECIAL CIRCUMSTANCES SENTENCE MANIFESTLY EXCESSIVE.

Citation: Regina v Amani Suaalii [2005] NSWCCA 206
Court: New South Wales Court of Criminal Appeal
Date: 9 June 2005
Judge(s): James J, Hislop J, Hall J

Background

The appellant pleaded guilty in the District Court to robbery in circumstances of aggravation under s 95(1) of the Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment. The offence involved a planned armed robbery at a hotel in Rydalmere, carried out with a co-offender in the early hours of the morning. The appellant and his co-offender entered the premises wearing balaclavas and gloves, each armed with a knife, and took approximately $31,500 from the hotel safe.

The victims, including a six-months-pregnant woman, were forced to the floor, bound with duct tape, and falsely told that bombs had been placed in the hotel. The robbery had been planned using insider knowledge of the premises, as two co-offenders had previously worked there as security guards. The appellant, born in 1982, had no relevant prior convictions at the time of the offence.

The District Court sentenced the appellant to a total of 9 years imprisonment, with a non-parole period of 6 years and 6 months. The appellant sought leave to appeal, contending the sentence was excessive and that several errors had been made in its construction.

  • Whether the sentencing judge erred by treating the actual or threatened use of violence as an aggravating factor under s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, given that such violence may already be an element of the offence of robbery in circumstances of aggravation
  • Whether the sentencing judge erred by treating abuse of a position of trust or authority as an aggravating factor under s 21A(2)(k), given the nature of the appellant's connection to the premises
  • Whether the sentencing judge erred in failing to give effect to a finding of special circumstances when fixing the non-parole period
  • Whether the overall sentence was manifestly excessive

Decision

On the first ground, the Court considered whether the use or threat of violence was an element of the charged offence, which would preclude its use as a separate aggravating factor under s 21A. The Court examined the terms of the indictment and the definition of the offence, concluding that the manner in which the charge was particularised meant that threatened or actual violence was indeed an element, and the sentencing judge should not have given additional weight to this factor.

On the trust and authority ground, the Court found that the appellant's prior work in the security industry at other venues did not establish a sufficient position of trust or authority in relation to the victims at the Family Inn Hotel. The co-offenders Mauai and Certoma had worked there, but the appellant had not. The Court therefore found that this aggravating factor should not have been applied to the appellant.

On special circumstances, the Court accepted that the sentencing judge had identified special circumstances but appeared not to have given effect to them in constructing the non-parole period. The standard proportion between non-parole period and total sentence under the legislation was not varied as it should have been.

On manifest excess, the Court accepted that the sentence placed the offence within the top three per cent of cases of this type, which the Court considered unwarranted when the appellant's youth, the first-time nature of this category of offending, limited prior record, and prospects of rehabilitation were properly weighed. The Court reduced the non-parole period from 6 years and 6 months to 4 years and 6 months, with a balance of 2 years and 2 months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence quashed and replaced with imprisonment comprising a non-parole period of 4 years and 6 months, commencing 2 September 2003 and expiring 1 March 2008, with the balance of 2 years and 2 months commencing 2 March 2008 and expiring 1 May 2010
  • Earliest eligible parole date: 1 March 2008

Key Takeaways

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, a court cannot treat a matter as an aggravating factor if it is already an element of the offence charged; the terms of the indictment are relevant to this analysis.
  • The aggravating factor of abusing a position of trust or authority requires a sufficient connection between the offender and the specific victims; a general background in an industry does not automatically establish such a position in relation to victims at premises where the offender has not personally worked.
  • Where a sentencing court identifies special circumstances justifying a departure from the standard non-parole ratio, that finding must be given effect in the actual construction of the sentence, not merely noted.
  • In assessing whether a sentence is manifestly excessive, the Court of Criminal Appeal will consider the relative seriousness of the offence across the spectrum of cases of that type, and will intervene where the sentence places the offence at a level of seriousness the circumstances do not support.
  • Mitigating factors such as youth, a limited prior record, and demonstrated prospects of rehabilitation carry significant weight in sentencing, even for serious and planned violent offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 95(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Security Industry Act 1997 (NSW), ss 7, 15 and 16

Cases:
- R v Foster (1995) 78 A Crim R 517
- R v Holder (1983) 3 NSWLR 245
- R v Simpson (2001) 53 NSWLR 704
- R v Tait (1979) 46 FLR 386
- R v Tobar [2004] NSWCCA 391
- Whittaker v The King (1928) 41 CLR 230
- R v Wickham [2004] NSWCCA 193