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Court of Criminal Appeal 17 April 2014

Manly v R; Hussein v R; Barghachoun v R

[2014] NSWCCA 59

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL SENTENCE

Citation: Manly v R; Hussein v R; Barghachoun v R [2014] NSWCCA 59
Court: NSW Court of Criminal Appeal
Date: 17 April 2014
Judges: Hoeben CJ at CL, Adams J, Bellew J (judgment delivered by Bellew J, with whom the others agreed)

Background

Four co-accused were convicted in the District Court following a jury trial before Judge Murrell. The Crown's case was that the group had devised a plan to steal a vehicle in Sydney, drive it to the Bulahdelah area, and rob a truck carrying mobile telephone equipment on the evening of 19 August 2011. The prosecution's case rested entirely on circumstantial evidence, and the theory of liability was joint criminal enterprise (a doctrine under which each participant in a common criminal plan can be held liable for offences committed in furtherance of that plan, even if they did not personally carry out each act).

The offences spanned a range of conduct that evening, including attempted vehicle theft, armed robbery, firearm offences, and property destruction. Three of the four co-accused (the applicants in this appeal) received sentences totalling between approximately six and ten years' imprisonment. The fourth co-accused, Riley, did not appeal.

Three applications were brought to the Court of Criminal Appeal. One applicant challenged his convictions on the basis that the jury's verdicts were unreasonable and unsupported by the evidence. Another challenged both his convictions and his sentence. The third challenged his sentence only.

  • Whether certain jury verdicts were unreasonable and could not be supported by the evidence, such that convictions should be quashed and acquittals entered
  • Whether the sentencing judge erroneously imposed fixed terms of imprisonment for an offence carrying a standard non-parole period under the Firearms Act 1996, and what consequences followed
  • Whether the sentences imposed on the applicants adequately reflected the distinction between criminal responsibility (being legally liable for an offence) and criminal culpability (the degree of moral blameworthiness each offender bore for the conduct)

Decision

Manly's convictions: The Court granted leave to appeal and allowed the conviction appeal in respect of all five counts against Manly (counts 1, 2, 3, 6 and 9). The Court found that the jury's verdicts on those counts were unreasonable and could not be supported by the evidence. Acquittals were entered on each count, and the associated sentences were quashed.

Hussein's convictions: The Court also granted leave and allowed Hussein's conviction appeal in respect of three counts (counts 4, 7 and 8), entering acquittals on each. In addition, the Court identified a sentencing error: the judge had imposed a fixed term of imprisonment for the firearms offence under s 7(1) of the Firearms Act 1996, which carries a standard non-parole period. The law does not permit a fixed term to be substituted where a standard non-parole period is prescribed, and the imposition of one was therefore an error requiring correction.

Sentence appeals (Hussein and Barghachoun): The Court allowed both sentence appeals. A central principle in the Court's reasoning was the distinction between criminal responsibility (the fact of liability, which may be identical across joint participants) and criminal culpability (the degree of individual moral fault, which may vary significantly). Sentences must reflect that variation in culpability, even where multiple offenders are equally liable in law for the same offence. The Court resentenced both Hussein and Barghachoun, reducing the sentences imposed for the armed robbery and aggravated robbery counts to better reflect each offender's individual role and culpability within the joint enterprise.

Orders Made

Manly:
- Leave to appeal against convictions on counts 1, 2, 3, 6 and 9 granted; appeals allowed
- Convictions and sentences on counts 1, 2, 3, 6 and 9 quashed; verdicts of acquittal entered

Hussein:
- Time for filing the notice of appeal extended to 12 December 2013
- Leave to appeal against convictions on counts 4, 7 and 8 granted; appeals allowed; acquittals entered
- Leave to appeal against sentence granted; appeal allowed
- Sentences on counts 3 and 6 quashed and replaced: count 3 (armed robbery) fixed term of 5 years from 11 October 2012; count 6 (aggravated robbery) non-parole period of 4 years from 11 April 2014 with a balance of term of 2 years and 6 months
- Total effective sentence: 9 years, comprising a non-parole period of 6 years and 6 months from 11 October 2011, with a balance of 2 years and 6 months expiring 10 October 2020

Barghachoun:
- Leave to appeal against sentence granted; appeal allowed
- Sentences on counts 3 and 6 quashed and replaced: count 3 (armed robbery) fixed term of 4 years from 20 February 2012; count 6 (aggravated robbery) non-parole period of 3 years and 6 months from 20 August 2013 with an additional term of 2 years and 6 months
- Total effective sentence: 8 years, comprising a non-parole period of 5 years and 6 months from 20 August 2011, with an additional term of 2 years and 6 months expiring 19 August 2019

Key Takeaways

  • Where the Crown's case against an accused rests entirely on circumstantial evidence within a joint criminal enterprise, the Court of Criminal Appeal will set aside convictions that a jury could not reasonably have reached on that evidence, and will enter acquittals rather than order a retrial where the evidence is insufficient.

  • A sentencing court has no power to impose a fixed term of imprisonment for an offence that carries a prescribed standard non-parole period under the Crimes (Sentencing Procedure) Act 1999; the error established in this case is consistent with a series of earlier CCA authorities on the same point.

  • The distinction between criminal responsibility and criminal culpability is critical in joint enterprise cases. All participants may bear equal legal liability for an offence, but their sentences must individually reflect the degree of moral fault each brought to the enterprise.

  • Resentencing on appeal in joint enterprise matters requires a careful assessment of each participant's role, not simply a uniform application of the same penalties across co-offenders found guilty of the same counts.

  • In dismissing the Crown's appeal against Manly's sentences (which became moot once his convictions were quashed), and in reducing sentences for the two remaining applicants, the Court reinforced that sentencing in multi-offender cases is not a mechanical exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(2), 117, 154A(1)(a), 93G(1)(b), 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45(1)
- Firearms Act 1996 (NSW), s 7(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)

Cases:
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2
- Collier v R [2012] NSWCCA 213
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Iskandar v R [2013] NSWCCA 235
- KR v R [2012] NSWCCA 32
- Lipchin v R [2013] NSWCCA 77
- M v R [1994] HCA 63; (1994) 181 CLR 487
- Mammone v R [2013] NSWCCA 95
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- R v Engert (1995) 84 A Crim R 67
- R v Henry (1996) 46 NSWLR