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10
Court of Criminal Appeal 27 February 2007

Baroudi v Regina

[2007] NSWCCA 48

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING CROWN CONCESSION ON NON PAROLE PERIOD PROCEDURAL FAIRNESS ARMED ROBBERY

Citation: Baroudi v Regina [2007] NSWCCA 48
Court: NSW Court of Criminal Appeal
Date: 27 February 2007
Judge(s): Sully J, Howie J, Price J (Price J delivering the leading judgment)

Background

The applicant pleaded guilty in the Local Court to six offences: two counts of armed robbery (s 97(1), Crimes Act 1900), one count of robbery while armed with a dangerous weapon (s 97(2), Crimes Act 1900), and three counts of detaining a person in company with intent to obtain an advantage (s 86(2)(a), Crimes Act 1900). The offences were committed between April 2003 and May 2004 and involved the armed robberies of a sports club, a hotel, and a chemist shop, with victims subjected to threats at gunpoint, restraint with cable ties, and forced opening of safes. DNA evidence linked the applicant to both the sports club and the hotel offences.

Sorby DCJ sentenced the applicant in the District Court at Parramatta on 12 May 2006. After partial accumulation of the individual sentences, the total effective sentence was six years with a non-parole period of four years commencing 4 May 2004. The applicant sought leave to appeal against the severity of those sentences.

  • Whether the sentencing judge failed to accord procedural fairness to the applicant by not acting on a Crown concession regarding the length of the non-parole period
  • Whether the judge correctly applied the guideline judgment in R v Henry (1999) 46 NSWLR 346 (the armed robbery guideline)
  • Whether the judge erred in calculating the composite discounts for the applicant's guilty plea, assistance to authorities, and subjective circumstances
  • Whether the judge erred in finding special circumstances and, if so, whether those circumstances were then double-counted in the sentencing structure
  • Whether the total effective sentence was manifestly excessive having regard to the principle of totality

Decision

Procedural fairness. The Court accepted that Sorby DCJ had inadvertently failed to afford the applicant procedural fairness. During the sentencing hearing, the Crown had made a concession that the non-parole period should be no greater than three years and six months, but the judge did not act on that concession or notify the parties that he intended to depart from it. The Court acknowledged this was an error and that the applicant had been denied the opportunity to make submissions that might otherwise have been available to him.

Effect of the error. Despite the procedural fairness error, the Court found that the submissions the applicant could have made would not have produced a materially different outcome. The Crown's concession was described as "remarkably generous" to the applicant. The sentencing judge had properly applied the R v Henry guideline to the armed robbery offences and had taken into account the applicant's pleas of guilty, assistance to authorities, and strong subjective circumstances (including his youth, lack of prior criminal record, drug and alcohol issues at the time of the offences, and family support) in arriving at the total effective sentence.

Special circumstances and double counting. The Court found that the judge had erred in his approach to special circumstances by counting, as a basis for extending the balance of term, matters he had already factored into reducing the head sentence. This constituted impermissible double counting. The Court noted, however, that this error operated in the applicant's favour and did not warrant interference.

Totality. The Court declined to interfere with the total effective sentence of six years with a non-parole period of four years. Although the Court did not endorse the precise structure of the sentences, it was not persuaded that the outcome was manifestly excessive. The non-parole period and balance of term were found to be an appropriate reflection of the total criminality involved, after proper allowance for all mitigating factors.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A procedural fairness error arises where a sentencing judge departs from a Crown concession on the length of a non-parole period without affording the offender an opportunity to address the court on that departure.
  • Identifying such an error does not automatically warrant re-sentencing. Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will only intervene if it forms the opinion that a different sentence is warranted in law and should have been passed.
  • Double counting in the special circumstances analysis occurs where a judge relies on matters already reflected in the reduction of the head sentence as additional grounds for extending the balance of term. The Court of Criminal Appeal confirmed this is an error, citing R v Simpson (2001) 53 NSWLR 704 and related authorities.
  • An error that favours the applicant will not ordinarily ground a successful appeal against severity of sentence.
  • Upholding the sentence in this case, the Court affirmed that the principle of totality requires the aggregate of all sentences to constitute a just and appropriate measure of the total criminality involved, with the non-parole period itself needing to reflect that criminality independently.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(2)(a), 97(1), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Ahmad v Regina [2006] NSWCCA 177
- Parker v DPP (1992) 28 NSWLR 282
- Postiglione v The Queen (1997) 189 CLR 295
- R v Capar (2002) 136 A Crim R 564
- R v Henry (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- R v Knight (2005) 155 A Crim R 252
- R v Lee [2000] NSWCCA 392
- R v Lynn [2004] NSWCCA 222
- R v Mako [2004] NSWCCA 90
- R v Olbrich (1999) 199 CLR 270
- R v Pham [2006] NSWCCA 288
- R v "S" (2000) 111 A Crim R 225
- R v Simpson (2001) 53 NSWLR 704
- R v Sukkar [2006] NSWCCA 92
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Waqa (No 2) [2005] NSWCCA 33
- R v Wilson [2005] NSWCCA 219
- Regina v Fidow [2004] NSWCCA 172
- SZ v R [2007] NSWCCA 19
- The Queen v Watson Ex parte Armstrong (1976) 136 CLR 248
- Vakauta v Kelly (1989) 167 CLR 568