Citation: Ahmed v R [2008] NSWCCA 305
Court: NSW Court of Criminal Appeal
Date: 5 December 2008
Judge(s): McClellan CJ at CL, Grove J, Howie J
Background
The applicant pleaded guilty in the Sydney District Court to robbery whilst armed with an offensive weapon, carrying a maximum penalty of 20 years' imprisonment. The offence involved approaching a pedestrian in Newtown, producing a knife, and demanding and obtaining the victim's backpack containing cash and credit cards. The applicant then used the stolen credit cards at a nearby shopping centre, where he was arrested.
At sentencing, the applicant asked the court to take into account five further offences: three charges of obtaining goods by deception (using the stolen cards), and two vehicle-related charges. Solomon DCJ imposed a total sentence of seven years, comprising a non-parole period of three years and six months and a balance term of equal length.
The applicant sought leave to appeal against the severity of that sentence, appearing without legal representation before the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge erred by failing to give adequate weight to the applicant's positive personal circumstances, including attendance at TAFE and employment
- Whether the applicant's alleged registration under the Mental Health Act was a mitigating factor warranting a reduction in sentence
- Whether the applicant was misrepresented by his solicitor at the sentencing proceedings
- Whether the sentence commencement date should have been backdated further to account for time spent in custody
- Whether the charge dealt with at sentence differed from the charge originally pleaded to
Decision
The Court granted leave to appeal but dismissed the appeal, finding no error in Solomon DCJ's approach to sentencing or in his assessment of the relevant factors.
On the question of personal circumstances, the Court noted that while the sentencing judge made no express reference to the applicant's TAFE attendance and employment, it was apparent from his remarks on rehabilitation that those matters had been taken into account. The applicant's significant criminal record, which included multiple prior armed robbery and robbery offences dating from 1992, and the fact that he was on parole when the current offence was committed, weighed heavily against a reduction.
Regarding the Mental Health Act claim, the Court found there was simply no evidence the applicant was registered under that Act. A psychiatric report before the sentencing court expressed the opinion that the applicant showed no history or symptoms consistent with major mental illness.
On the backdating issue, the Court explained that the sentencing judge exercised a discretion in setting the commencement date. The sentence was ordered to commence on 24 January 2007, providing approximately two months of concurrency with the period the applicant was already in custody following parole revocation. There was no entitlement to have the sentence backdated to the date of arrest. The Court also noted that the applicant's oral submissions expressing a desire to enter a drug rehabilitation program, and his expressed remorse, could not provide a basis for appellate intervention, as the Court of Criminal Appeal is a court of error and not a vehicle for resentencing on new or repeated grounds.
Orders Made
- Leave to appeal against sentence granted
- Appeal dismissed
Key Takeaways
- No error was established in the sentencing judge's approach, even where the judge did not expressly address each mitigating factor in written remarks, provided the remarks as a whole indicated those factors had been considered.
- A self-represented applicant's claim of registration under mental health legislation will not assist a sentence appeal without evidentiary foundation; an uncontradicted psychiatric report finding no major mental illness carried dispositive weight here.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge has a discretion over the commencement date of a sentence and that a period of concurrency, however partial, is a benefit rather than an entitlement.
- The Court of Criminal Appeal reiterated that it is a court of error: expressions of remorse and aspirations for rehabilitation made at the appeal hearing, while noted sympathetically, cannot independently attract appellate intervention.
- Where an offender has a substantial prior history of similar offending and was on parole at the time of the index offence, the sentencing court's decision to impose what the Court of Criminal Appeal described as a sentence already reflecting "significant leniency" will be difficult to disturb on appeal.
Legislation and Cases Referenced
Legislation:
- No specific legislation cited in the decision text beyond reference to the Mental Health Act (NSW) and the prescribed maximum penalty of 20 years for armed robbery.
Cases:
- No cases were cited in the judgment.