Citation: Application by Ali Hussein pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1855
Court: Supreme Court of New South Wales
Date: 7 December 2015
Judge(s): Wilson J
Background
The applicant had been convicted by a jury in the District Court of eight offences arising from a coordinated armed robbery operation in August 2011. The offences involved an attempt to steal vehicles at a service station, the armed robbery of a car at gunpoint, and the aggravated robbery of a Pantech truck on the Pacific Highway near Bulahdelah. The applicant was one of four co-offenders who acted together throughout the night.
At first instance, the sentencing judge imposed an aggregate sentence of 12 years imprisonment with an eight-year non-parole period. The applicant appealed both conviction and sentence to the Court of Criminal Appeal (CCA).
The CCA allowed the conviction appeal in respect of three counts, entering verdicts of acquittal. It also resentenced the applicant on two remaining counts, ultimately reducing the overall sentence to nine years imprisonment with a non-parole period of six years and six months. The applicant then brought this further application to the Supreme Court under s 78 of the Crimes (Appeal and Review) Act 2001, seeking referral of his case back to the CCA to be dealt with again as a sentence appeal.
Legal Issues
- Whether the applicant's case raised a "doubt or question" as to a mitigating circumstance sufficient to satisfy the gateway requirements of s 79(2) of the Crimes (Appeal and Review) Act 2001, so as to warrant referral to the CCA.
- Whether the CCA, when resentencing the applicant following his successful conviction appeals, had properly accounted for the reduced scope of his criminal liability.
- Whether the CCA had given adequate weight to the conclusion that general deterrence was not an appropriate sentencing consideration for the applicant.
Decision
Wilson J considered whether the applicant had established the threshold for referral under the Act. That threshold, sometimes called the "gateway", requires that there be a doubt or question as to a mitigating circumstance in the case. It is a relatively demanding standard: mere dissatisfaction with the outcome of prior proceedings is insufficient.
The applicant argued that the CCA, when resentencing him following the quashing of three convictions, had failed to adequately reduce the overall sentence to reflect his diminished role. He contended that the resentenced terms did not sufficiently account for the fact that he had been acquitted of personally possessing and firing the gun during the truck robbery. Wilson J examined the CCA's reasoning in detail, noting that the CCA had explicitly acknowledged the applicant could not be held personally responsible for certain uses of the firearm, while still taking into account the objective gravity of the joint criminal enterprise as a whole.
Turning to the general deterrence point, the CCA had previously concluded that the applicant was not an appropriate vehicle for general deterrence, a finding that would ordinarily reduce the sentence. Wilson J found that, reading the CCA judgment as a whole and comparing the applicant's sentence with that imposed on his co-offender, the sentences imposed were relatively modest given the seriousness of the crimes. This indicated that the CCA had, in practice, given full effect to its conclusion on general deterrence.
Wilson J was not left with any sense of doubt or question as to the sentences imposed. The gateway provisions of s 79(2) had not been satisfied, and the application was refused.
Orders Made
- Application refused.
Key Takeaways
- Under s 78 of the Crimes (Appeal and Review) Act 2001, an applicant must establish a genuine "doubt or question" as to a mitigating circumstance before the Supreme Court will refer a matter back to the CCA; dissatisfaction with a prior appellate outcome does not meet this threshold.
- Where a successful conviction appeal reduces the scope of an offender's criminal liability, the resentencing court must account for that reduced liability, but is not required to ignore the objective gravity of the joint criminal enterprise in which the offender participated.
- A conclusion that general deterrence has no real role to play in sentencing will satisfy the gateway test only if the sentence ultimately imposed does not appear to reflect that principle; a relatively modest sentence compared with co-offenders may itself demonstrate that the principle was applied.
- Comparing sentences across co-offenders is a legitimate tool when assessing whether a particular sentence reflects error or warrants further review.
- The process of instinctive synthesis in sentencing requires identification of all relevant factors followed by a value judgment as to the appropriate outcome; it does not permit the isolation of individual factors to argue that insufficient weight was given to any one of them in isolation.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes Act 1900 (NSW), ss 97(2), 117, 154A(1)(a), 195(1)(b)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW)
- Criminal Law Amendment Act 1883 (NSW)
- Firearms Act 1996 (NSW), s 7(1)
Cases
- Manly; Hussein; Barghachoun v R [2014] NSWCCA 59
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Henry (1996) 46 NSWLR 346
- Zreika v R [2012] NSWCCA 44
- PK v Regina [2012] NSWCCA 263
- Sinkovich v Attorney General for the State of New South Wales [2013] NSWCA 383; (2013) 85 NSWLR 783
- Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30