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Court of Criminal Appeal 15 April 2010

R v Abdisimi Hersi, R v Abdirazak Hersi

[2010] NSWCCA 57

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE CROWN APPEAL WHETHER SENTENCES MANIFESTLY INADEQUATE RESPONDENTS RESENTENCED

Citation: R v Abdisimi Hersi, R v Abdirazak Hersi [2010] NSWCCA 57
Court: New South Wales Court of Criminal Appeal
Date: 15 April 2010
Judge(s): McClellan CJ at CL, Howie J, Harrison J

Background

Two brothers were each convicted after trial of robbery in company under s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. The offence involved a group of five or six people surrounding a victim near his home in Homebush West, assaulting him, threatening him with what appeared to be a weapon, and stealing his wallet, phone, and cash. Neither respondent was individually identified as the person who physically assaulted the victim, though both were present and participating.

In the District Court, Knox DCJ sentenced each respondent to a non-parole period of 12 months. One respondent received the balance of his term as a conventional custodial sentence; the other was ordered to serve his sentence by periodic detention. One respondent had already been released to parole before the Crown appeals were heard.

The Crown appealed both sentences on the ground that they were manifestly inadequate. The appeals were delayed by constitutional questions arising from the introduction of s 68A of the Crimes (Appeal and Review) Act 2001, which required determination by a specially constituted five-judge bench before the present appeals could proceed.

  • Whether the sentences imposed by the District Court were manifestly inadequate for the offence of robbery in company
  • Whether the sentencing judge adopted a proper method in determining and pronouncing sentence
  • What weight should be given to delay, double jeopardy considerations, and post-sentencing rehabilitation when resentencing on a successful Crown appeal

Decision

Howie J (with McClellan CJ at CL and Harrison J agreeing) found the sentences were so inadequate they could not be allowed to stand. The Court identified two significant procedural concerns with the way the District Court had approached sentencing. First, the sentencing judge appeared to fix the non-parole period before receiving all relevant material, including psychological reports, and then worked backward to calculate the head sentence. Second, the sentencing remarks contained no statement of the underlying facts, instead incorporating earlier dialogue between the bench and counsel. The Court stated that both offenders and members of the public should be able to understand the basis for a sentence from what is said at the time it is pronounced.

On the question of resentencing, the Court acknowledged the considerable delay caused by the s 68A constitutional proceedings, which was not the fault of either respondent. The Court also noted that one respondent had already been released to parole because the non-parole period was so short, and that both respondents had made progress toward rehabilitation. As a concession for the delay, the Court applied the new sentences from the same commencement dates originally fixed by the District Court, effectively giving the respondents the benefit of time already served under the inadequate sentences.

The Court did not expressly set out the precise reasoning on the appropriate sentencing range, but the new sentences imposed were significantly longer than those originally given, reflecting the seriousness of the offence.

Orders Made

  • The Crown appeals were allowed and the District Court sentences were quashed.
  • Abdirazak Hersi was resentenced to a non-parole period of 3 years with a balance of term of 2 years, commencing 20 August 2008, with eligibility for release to parole on 19 August 2011.
  • Abdisimi Hersi was resentenced to a non-parole period of 2 years and 6 months with a balance of term of 18 months, commencing 7 August 2009, with the non-parole period expiring 6 February 2012.

Key Takeaways

  • Sentences of 12 months non-parole period for robbery in company, an offence carrying a maximum of 20 years, were found to be manifestly inadequate on the particular facts of this case.
  • A sentencing court adopts an improper method when it pre-determines the non-parole period before receiving all relevant material and then calculates the head sentence by working backward from that figure.
  • Sentencing remarks must contain a statement of facts and explain the basis for the sentence at the time of pronouncement; requiring an appellate court to reconstruct reasoning from earlier transcript is not an acceptable approach.
  • Where delay in finalising a Crown appeal is not caused by the respondents, the Court of Criminal Appeal may account for that delay by backdating the new sentence to the original commencement date, effectively giving the respondents credit for time already served.
  • The constitutional validity of s 68A of the Crimes (Appeal and Review) Act 2001, which retrospectively removed the court's discretion to apply double jeopardy considerations in Crown appeals, had required resolution by a specially constituted five-judge bench before these appeals could proceed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(1), 21A(3)(a)

Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Murchie [1999] NSWCCA 424; 108 A Crim R 482
- R v Stanley [2008] NSWCCA 233
- Legge v R [2007] NSWCCA 244
- R v Nair [2003] NSWCCA 368
- R v JW [2010] NSWCCA 49