Citation: Regina v Tezay Hasan [2005] NSWCCA 21
Court: NSW Court of Criminal Appeal
Date: 4 February 2005
Judge(s): Dunford J; Bell J
Background
The applicant, a young man aged nineteen at the time of the offences, pleaded guilty in the District Court to two counts of robbery in company. Both offences were committed against taxi drivers on separate nights in December 2002, roughly eight days apart. On each occasion, the applicant and his cousin lured a taxi driver into a dead-end street, after which the applicant grabbed the driver from behind by the throat while his cousin threatened to stab the victim and stole cash and keys.
The applicant's identity was initially unknown to police. He surrendered to police on 4 June 2003, apparently following a conversation with his co-offender after his cousin had been identified. He was charged and released on bail that same day.
At sentencing in the District Court, Judge Dodd imposed two wholly concurrent terms of four years' imprisonment with a non-parole period of two years, applying a 25% discount for the utilitarian value of early guilty pleas. The co-offender received the same sentences, backdated to reflect pre-sentence custody. The applicant sought leave to appeal, contending that the sentences were manifestly excessive and that parity principles required a lesser sentence for him than for his co-offender.
Legal Issues
- Whether the effective sentence of four years with a two-year non-parole period was manifestly excessive, having regard to the objective seriousness of the offences and the applicant's subjective circumstances.
- Whether the sentencing judge erred in the approach to accumulation and concurrency across two separate offences.
- Whether parity principles required the applicant to receive a lesser sentence than his co-offender, given his voluntary surrender to police at a time when his identity was unknown.
- Whether the guilty plea discount of 25% was appropriate, and whether additional weight should have been given to the voluntary disclosure.
- Whether steroid use could be treated as a mitigating factor.
Decision
Objective seriousness and discount: The Court of Criminal Appeal found some technical error in the sentencing judge's approach. Dunford J considered the offences were not at the bottom of the range identified in the guideline judgment of R v Henry, as they each involved an attack on a victim in a particularly vulnerable position and were committed in breach of two recently imposed good behaviour bonds. His Honour would have allowed a discount of approximately 30% to reflect both the utilitarian value of early guilty pleas and the voluntary surrender and disclosure to police.
Accumulation: Dunford J considered that, given the two offences were separate events on separate occasions, the sentences should have been made at least partially cumulative rather than wholly concurrent. This reflected the principle, drawn from Pearce v The Queen, that wholly concurrent sentences for separate offences tend to understate the total criminality involved.
Parity: The applicant argued that his voluntary surrender, occurring at a time when police had no knowledge of his identity, demonstrated greater contrition than his co-offender and warranted a lesser sentence. The Crown accepted there may technically be some merit in the argument, but the Court noted the surrender had been precipitated by the co-offender and occurred some months after the offences. Any sentencing differential on this basis would have been minimal.
Overall result: Despite identifying errors in the sentencing judge's approach, the Court was satisfied that the effective sentence of four years with a two-year non-parole period fell within the appropriate range when all relevant factors were balanced. The errors did not result in a sentence that was manifestly excessive. The Court noted the applicant was making productive use of his time in custody and that his rehabilitation prospects were good, but observed this was no more than the sentencing judge had anticipated when finding special circumstances and reducing the non-parole period to one-half of the head sentence rather than the default three-quarters.
Orders Made
- Extension of time to file the notice of grounds of appeal granted.
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that wholly concurrent sentences for two separate robbery offences committed on separate occasions may understate the total criminality involved, and that partial accumulation would ordinarily be appropriate.
- Where a co-offender's identification of the applicant to police preceded or prompted the applicant's voluntary surrender, the weight to be given to that surrender as a mitigating or parity factor is reduced.
- A voluntary surrender to police at a time when identity was unknown to investigators carries some mitigating weight, but the Court found it did not, on the facts here, require a materially different sentence from that imposed on the co-offender.
- Steroid use was not treated as a mitigating factor where the offences were deliberately planned, the applicant exercised a clear modus operandi on both occasions, and no evidence established a causal link between steroid use and the commission of this type of offence.
- Even where sentencing error is identified on appeal, the Court of Criminal Appeal will dismiss the appeal if the effective sentence imposed remains within the appropriate sentencing range.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company, maximum twenty years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- R v AEM Snr, KEM and MM [2002] NSWCCA 58
- R v Ellis (1986) 6 NSWLR 603
- R v Hammoud (2000) 118 A Crim R 66
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for robbery offences)
- R v Iskander (CCA, 22 July 1996)
- R v Kalache (2000) 111 A Crim R 152
- R v Lynn [2004] NSWCCA 222
- R v Mako [2004] NSWCCA 90
- R v Thomson (2000) 49 NSWLR 383 (guilty plea discounts)