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Court of Criminal Appeal 14 July 2009

REGINA v Fadde ASSAAD

[2009] NSWCCA 182

Assault & violenceTheft & property
CRIMINAL LAW SENTENCES MANIFESTLY INADEQUATE

Citation: Regina v Fadde Assaad [2009] NSWCCA 182
Court: New South Wales Court of Criminal Appeal
Date: 14 July 2009
Judge(s): McClellan CJ at CL, Hidden J, McCallum J

Background

The respondent pleaded guilty to three offences committed in April 2006: robbery in company at a jewellery store in Auburn, armed robbery of a taxi driver, and aggravated taking and driving of the taxi. Both sets of offences involved co-offenders armed with knives, and victims were restrained or threatened during the course of each robbery.

The respondent was not charged until 2007 and 2008, having been identified through DNA evidence and witness photographs. At the time of his arrest, he was already serving a sentence of periodic detention for an earlier offence. He had been addicted to illicit drugs at the time the offences were committed, but accepted evidence indicated he ceased drug use shortly after the offences and maintained sobriety thereafter.

In April 2009, a District Court judge sentenced the respondent to concurrent terms of periodic detention, producing a total effective sentence of three years with a non-parole period of one year and nine months. The Crown appealed, arguing the sentences were manifestly inadequate.

  • Whether the sentences imposed were manifestly inadequate, including by reference to the guideline judgment in R v Henry & Ors (1999) 46 NSWLR 346.
  • Whether the sentencing judge disclosed a proper reasoning process before ordering that imprisonment be served by periodic detention, in accordance with the three-step process described in Douar v R.
  • Whether the Court of Criminal Appeal should exercise its residual discretion to decline to re-sentence the respondent, notwithstanding a finding of manifest inadequacy.

Decision

McCallum J (with whom Hidden J agreed) concluded that the sentences imposed were manifestly inadequate. Whether assessed against the Henry guideline or by general sentencing principles, the terms were excessively lenient. The fact that those already lenient sentences were to be served by periodic detention compounded the inadequacy further.

McClellan CJ at CL also identified a separate error: the sentencing judge's reasoning process did not properly disclose compliance with the three-step approach required before periodic detention can be ordered. After concluding imprisonment was necessary, the judge immediately posed the question of whether periodic detention was appropriate, without first determining the length of the custodial term. The Chief Judge found that compliance with the required process could not be inferred in these circumstances.

Despite finding manifest inadequacy, the Court turned to its residual discretion to decline to intervene. McCallum J identified two compelling considerations: the respondent had undertaken a remarkable course of self-rehabilitation since the offences, having ceased illicit drug use on his own initiative and made considerable progress with underlying psychiatric treatment; and there had been significant delay between the commission of the offences and sentencing. Evidence before the Court indicated that rehabilitation had continued to progress well after sentence was imposed, and that permanent rehabilitation appeared a strong prospect for a relatively young offender.

The Court concluded that the risk of jeopardising an established and exceptional rehabilitation by imposing full-time custody at that stage warranted the exercise of the discretion. The appeal was dismissed.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a finding of manifest inadequacy does not automatically produce re-sentencing; the Court retains a residual discretion to decline to interfere where compelling circumstances exist.
  • Exceptional and well-evidenced rehabilitation, sustained over a significant period on the offender's own initiative, can constitute a compelling basis for exercising that residual discretion in a Crown appeal.
  • Delay between the commission of offences and sentencing, combined with consistent rehabilitative progress throughout that period, reinforced the case for declining to intervene.
  • In dismissing the appeal, the Court applied the principle confirmed in R v Blackman and Walters [2001] NSWCCA 121, where "enormous change" in respondents and elapsed time were regarded as appropriate grounds for the Court to stay its hand.
  • A sentencing judge must disclose a proper three-step reasoning process before ordering that imprisonment be served by periodic detention; the failure to do so may constitute error even where compliance might otherwise be inferred from context.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 154C(2)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Henry & Ors (1999) 46 NSWLR 346 (guideline judgment on robbery sentencing)
- Douar v R (2005) 159 A Crim R 154 (three-step process for periodic detention)
- R v Blackman and Walters [2001] NSWCCA 121 (residual discretion in Crown appeals)
- R v Hernando (2002) 136 A Crim R 451
- R v Zamagias [2002] NSWCCA 187
- Legge v R [2007] NSWCCA 244
- Yardley v Betts (1979) 22 SASR 108