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Court of Criminal Appeal 26 June 2009

R v Fadi JAJOU; R v Maher JEBARA; R v Sam LAFTA

[2009] NSWCCA 167

Also reported as 196 A Crim R 370
Theft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE WHETHER MANIFESTLY INADEQUATE SENTENCES MANIFESTLY INADEQUATE OFFENDERS RESENTENCED TO EFFECTIVE NON PAROLE PERIODS OF 18 MONTHS

Citation: R v Fadi JAJOU; R v Maher JEBARA; R v Sam LAFTA [2009] NSWCCA 167
Court: New South Wales Court of Criminal Appeal
Date: 26 June 2009
Judge(s): Campbell JA; Latham J; Harrison J

Background

Three respondents were each convicted on two counts of armed robbery of a convenience store. The District Court sentenced each respondent to two years' imprisonment on each count, to be served concurrently, with the sentences wholly suspended.

The Crown appealed each sentence, arguing that wholly suspended terms were manifestly inadequate for this type of offending. The appeals were heard together, with all three respondents represented by the same counsel.

The offending fell within the category of armed robbery addressed by the guideline judgment in R v Henry (1999) 46 NSWLR 346, which sets a sentencing range of between four and five years for the full term in cases bearing seven defined characteristics, including a young offender, use of a weapon capable of causing serious injury, limited planning, and a vulnerable victim.

  • Whether the wholly suspended sentences of two years were manifestly inadequate for two counts of armed robbery of a convenience store
  • Whether the sentencing judge demonstrated error by departing from the Henry guideline ranges
  • Whether any features of the individual cases, including bail conditions served by the respondents, justified the departure from the Henry guidelines
  • How the Henry guideline judgment interacts with other sentencing factors under the Crimes (Sentencing Procedure) Act 1999

Decision

The Court of Criminal Appeal held that the wholly suspended sentences were manifestly inadequate and that the sentencing judge had fallen into error. The sentences imposed fell well below the range indicated by the Henry guidelines, and no features of the cases sufficiently justified that departure.

On the question of bail conditions, the Court found that Henry's silence on bail conditions did not mean that time spent on restrictive bail could displace the guideline range. Ordinary sentencing principles applied to matters not specifically addressed in Henry, but those principles operated alongside the guideline rather than as a basis for wholesale departure from it. Campbell JA emphasised that under section 42A of the Crimes (Sentencing Procedure) Act 1999, a guideline judgment must be taken into account in addition to all other sentencing matters, and it significantly bears on the sentencing process.

The Court also clarified the status of Henry as a guideline judgment. Although it was delivered in 1999 before guideline judgment powers were expressly conferred by statute, sections 37 and 37A of the Crimes (Sentencing Procedure) Act 1999 (enacted in 2001) operate retrospectively and remove any doubt about the Court's authority to have delivered that judgment.

Each sentence was quashed and the respondents were resentenced to terms of imprisonment with an effective non-parole period of 18 months, structured by staggering the non-parole periods for the two counts.

Orders Made

In each of the three matters:

  • Appeal allowed
  • Sentences imposed by Tupman DCJ on 6 March 2009 quashed
  • On the first charge: non-parole period of 12 months commencing 26 June 2009, with a balance of term of 12 months commencing 26 June 2010
  • On the second charge: non-parole period of 12 months commencing 26 December 2009, with a balance of term of 12 months commencing 26 December 2010
  • Effective non-parole period of 18 months commencing 26 June 2009 and expiring 25 December 2010
  • Earliest release date for each respondent: 25 December 2010

Key Takeaways

  • The Court of Criminal Appeal confirmed that wholly suspended sentences of two years for armed robbery of a convenience store, in circumstances meeting the Henry criteria, are manifestly inadequate and constitute demonstrated sentencing error.
  • Under section 42A of the Crimes (Sentencing Procedure) Act 1999, a guideline judgment must be taken into account in addition to other sentencing factors. It operates as a significant constraint on the sentencing discretion, not merely as one consideration among many equals.
  • A guideline judgment's silence on a particular factor, such as restrictive bail conditions, does not permit that factor to displace the guideline range. Ordinary sentencing principles fill the silence, but operate alongside the guideline.
  • Sections 37 and 37A of the Crimes (Sentencing Procedure) Act 1999 operate retrospectively, confirming the validity of Henry as a properly constituted guideline judgment notwithstanding that it predated the express statutory empowerment.
  • Staggered non-parole periods across concurrent sentences can produce an effective aggregate non-parole period that exceeds the non-parole period on any single count, as the Court demonstrated by structuring the resentencing in each matter to achieve an 18-month effective minimum term.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 21A, 36, 37, 37A, 42A
- Criminal Appeal Act 1912 (NSW)

Key Cases:
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (the armed robbery guideline judgment)
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
- DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300
- R v Chamma [2009] NSWCCA 92
- R v Tortell; R v Tsegay [2007] NSWCCA 313
- R v AEM [2002] NSWCCA 58