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Court of Criminal Appeal 12 October 2012

Ghobrial v R

[2012] NSWCCA 221

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL ROBBERY IN COMPANY NO EXCEPTIONAL CIRCUMSTANCES SENTENCE APPEAL ROBBERY IN COMPANY

Citation: Ghobrial v R [2012] NSWCCA 221
Court: Court of Criminal Appeal, New South Wales
Date: 12 October 2012
Judge(s): Hoeben JA, Johnson J, Button J (unanimous)

Background

The applicant, a 20-year-old man, pleaded guilty in the District Court at Parramatta to one count of robbery in company under s 97 of the Crimes Act 1900. The offence arose from an incident in January 2011 when the applicant and two associates followed the victim from a Leagues Club to a carpark after observing him collect $900 in cash. The applicant struck the victim from behind and an associate held the victim down while the money was taken. The three men were quickly identified from CCTV footage.

The sentencing judge imposed a head sentence of 2 years 6 months with a non-parole period of 1 year 3 months, finding special circumstances that justified a variation to the standard statutory ratio. Despite significant mitigating factors, including a 25 per cent discount for an early guilty plea, full admissions to police, genuine remorse, and meaningful steps toward rehabilitation, the sentencing judge declined to find "exceptional circumstances" that would justify a non-custodial outcome.

The applicant sought leave to appeal on the grounds that the sentencing judge had erred in refusing to find exceptional circumstances, in failing to give adequate weight to his subjective circumstances, in not treating the offence as less serious, and in declining to impose a suspended sentence.

  • Whether the sentencing judge erred in finding no "exceptional circumstances" that would justify a non-custodial sentence, as required by the guideline judgment in R v Henry (1999) for armed and aggravated robbery.
  • Whether this Court could overturn that finding without identifying specific error at first instance, by applying the Warren v Coombes (1979) approach of independent appellate evaluation rather than the House v The King (1936) error-based approach.
  • Whether the sentencing judge gave insufficient weight to the applicant's subjective circumstances, including his youth, ADHD, drug dependence, and rehabilitation progress.
  • Whether the offence should have been treated as less serious due to the absence of a weapon or physical injury to the victim.
  • Whether the sentencing judge should have imposed a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999.

Decision

Exceptional circumstances and the applicable appellate standard

Button J, with whom Hoeben JA and Johnson J agreed, firmly rejected the applicant's argument that this Court could simply substitute its own evaluation of whether exceptional circumstances existed, without first identifying error below. The Court of Criminal Appeal is a court of error, and appeals against sentence are governed by the principles in House v The King (1936). A finding about whether exceptional circumstances exist is itself an evaluative judgment made within the sentencing discretion, and is therefore subject to the same error-based review as any other aspect of that discretion. The Warren v Coombes approach, developed for civil appeals on questions of fact, does not apply to criminal sentence appeals before this Court.

Mitigating factors and weight given to subjective circumstances

The Court found no error in the weight the sentencing judge assigned to the applicant's subjective circumstances. Those factors, including youth, ADHD, drug use, traumatic personal history, and genuine rehabilitation progress, were all acknowledged and taken into account. The Court noted that the sentencing judge expressly considered them, both individually and in combination, before concluding they did not reach the threshold of exceptional circumstances. No error in that evaluative judgment was demonstrated.

Objective seriousness and the absence of a weapon or injury

The Court rejected the submission that the absence of a weapon or significant physical injury made the offence appreciably less serious. The guideline in R v Henry and related authorities did not require a weapon to be present before the exceptional circumstances rule applied. Button J observed that a sentencing judge is not required to address the absence of aggravating features that simply were not part of the offence.

Suspended sentence

The Court accepted that another sentencing judge might, in principle, have imposed a suspended sentence on these facts. However, it declined to find that the sentencing judge was compelled to do so or that declining to suspend the sentence constituted error. Given the maximum penalty, the applicable guideline, the degree of planning involved, and the force used, the imposition of full-time imprisonment fell within the available range.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A finding of "exceptional circumstances" in the context of aggravated robbery sentencing is an evaluative judgment within the sentencing discretion, reviewable only on House v The King error-based principles, not by independent appellate re-evaluation.
  • The rule requiring full-time imprisonment for armed or aggravated robbery absent exceptional circumstances, established in R v Henry (1999) and extended to other forms of aggravated robbery in R v Murchie (1999), was reaffirmed and applied.
  • Substantial mitigating factors, including youth, mental health diagnosis, drug dependence, traumatic personal history, early guilty plea, and genuine rehabilitation progress, do not automatically constitute "exceptional circumstances" permitting a non-custodial sentence.
  • The absence of a weapon or physical injury does not, without more, render an aggravated robbery offence sufficiently less serious to displace the full-time imprisonment requirement under the relevant guideline judgments.
  • In dismissing the appeal, the Court reiterated that while another outcome may have been open on the facts, a sentence is not erroneous merely because an alternative was available to the sentencing judge.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 12
- Criminal Appeal Act 1912 (NSW), s 6
- Supreme Court Act 1970 (NSW)

Cases
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Murchie [1999] NSWCCA 424; (1999) 108 A Crim R 482
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- Aoun v R [2011] NSWCCA 284
- DAO v R [2011] NSWCCA 63; (2011) 278 ALR 765
- Hanania v R [2012] NSWCCA 220
- Yang v R [2012] NSWCCA 49
- R v Yuksel; R v Sirtlan [2012] NSWCCA 84
- Elyard v R [2006] NSWCCA 43
- Ng v R [2011] NSWCCA 227
- R v Blackman and Walters [2001] NSWCCA 121
- R v Kelly (1993) 30 NSWLR 64
- R v Kain [2004] NSWCCA 143
- R v Pham [2005] NSWCCA 94
- R v Thompson [2005] NSWCCA 340