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Court of Criminal Appeal 16 April 2018

R v El Sayah; R v Idaayen; R v Mansaray

[2018] NSWCCA 64

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL CROWN APPEAL THREE CO OFFENDERS PLEAS OF GUILTY

Citation: R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64
Court: Court of Criminal Appeal
Date: 16 April 2018
Judges: Hoeben CJ at CL; White JA; N Adams J

Background

Three co-offenders, each aged 18 at the time of the offence, pleaded guilty to robbery in company under s 97(1) of the Crimes Act 1900 (NSW). The robbery occurred on 4 September 2016 at a tobacconist shop in Yagoona. Four men, including the three respondents, entered wearing disguises and gloves, armed with a kitchen knife and a meat cleaver, and violently assaulted the sole employee before stealing cigarettes. The victim was grabbed, pulled to the ground, sat upon, trodden on, and subjected to continued violence over approximately eight minutes before police arrived and the offenders were found locked inside.

The primary judge sentenced each respondent to a head sentence of 2 years and 8 months with a non-parole period of approximately 11.4 months, representing 35.7 per cent of the total term. The sentences reflected the primary judge's assessment that the offending was at or somewhat toward the mid-range of objective seriousness and that each respondent had a very strong subjective case, including youth, no criminal history, employment, family support, and prospects of rehabilitation.

The Director of Public Prosecutions appealed all three sentences under s 5D(1) of the Criminal Appeal Act 1912 (NSW) on the single ground that both the head sentences and the non-parole periods were manifestly inadequate.

Legal Issues

  • Whether the sentences imposed were manifestly inadequate, having regard to the guideline judgment in R v Henry [1999] NSWCCA 111 and the primary judge's own finding that the offending was more serious than the offending described in that guideline
  • Whether the primary judge erred by applying a two-stage sentencing process, including a separate discount for remorse and quasi-custody after already applying a 25 per cent discount for the utilitarian value of the guilty plea
  • Whether the primary judge erred by imposing a non-parole period of 35.7 per cent of the head sentence without explanation
  • Whether the Court should exercise its residual discretion not to intervene, despite finding the sentences manifestly inadequate

Decision

Ground 1: Manifest inadequacy

The Court of Criminal Appeal found the sentences manifestly inadequate (at [65]). The primary judge had himself concluded that the offending was more serious than the "typical" armed robbery described in R v Henry, which identifies a sentencing range of 4 to 5 years for offences sharing seven common features. All seven of those features were present here, and several additional aggravating circumstances applied, including the nature of the weapons, the vulnerability of the lone victim, the use of actual force, the number of offenders, and the injuries sustained (at [57]-[58]). Despite that finding, the sentence imposed was well below the R v Henry range and was described by the Court as reflecting a significant disconnect between the primary judge's findings on seriousness and the sentence actually imposed (at [59]).

Ground 1(a): Two-stage sentencing error

The Court accepted the Crown's submission that the primary judge erred by applying a two-stage process, effectively allowing a further specific discount for remorse and quasi-custody after a starting point that already incorporated the 25 per cent discount for the early guilty plea (at [64]). Relying on Chung v R [2017] NSWCCA 48, the Court confirmed that double-counting in this manner constitutes an error in the sentencing exercise.

Ground 1(b): Non-parole period without explanation

The Court found that the primary judge provided no adequate explanation for a non-parole period of only 35.7 per cent of the head sentence (at [64]). While a finding of special circumstances may justify departing from the standard one-third ratio, the degree of departure here was extraordinary, particularly in the context of offending the primary judge assessed as more serious than the R v Henry benchmark. The Court noted the obligation, confirmed in R v Thomas [2007] NSWCCA 269, to provide reasons when making such a significant variation to the statutory ratio (at [41]).

Residual discretion

The Court declined to exercise its residual discretion to refrain from intervening (at [69]). It noted that armed robbery is a prevalent offence and that reiteration of the principles in R v Henry was warranted, particularly given JIRS statistics before the primary judge showing that 57 per cent of comparable offenders had received non-custodial sentences (at [73]). No matters of hardship beyond the sentences themselves were identified, and the Crown had not delayed in instituting or prosecuting the appeal (at [68]).

Re-sentence

On re-sentence, the Court took a starting point of 4 years, then applied the 25 per cent discount for the early guilty plea to reach a head sentence of 3 years (at [70]). Accepting the Crown's concession that special circumstances existed, the Court imposed a non-parole period of 1 year and 10 months for each respondent. The Court accepted that each respondent had a strong subjective case by reason of youth, absence of criminal history, employment, family support, and remorse, but noted that the psychological deficits identified for each respondent had no established causal link to the offending, which appeared motivated by revenge and dislike of the victim (at [62]).

Orders Made

  • The Crown appeal in each matter is allowed.
  • The sentences imposed by Acting Judge Williams on 19 October 2017 are quashed.
  • In lieu thereof, each respondent is sentenced to a term of imprisonment with a non-parole period of 1 year and 10 months and a balance of term of 1 year and 2 months:
  • El Sayah: non-parole period commencing 31 October 2017, expiring 30 August 2019; balance of term expiring 30 October 2020.
  • Idaayen: non-parole period commencing 9 November 2017, expiring 8 September 2019; balance of term expiring 8 November 2020.
  • Mansaray: non-parole period commencing 6 October 2017, expiring 5 August 2019; balance of term expiring 5 October 2020.

Key Takeaways

  • A finding by the sentencing judge that the offending is more serious than the benchmark described in a guideline judgment must be reflected in the sentence actually imposed. A significant disconnect between such a finding and the sentence imposed will support a conclusion of manifest inadequacy (at [59], [65]).

  • The Court of Criminal Appeal confirmed that allowances for remorse and quasi-custody cannot be applied as additional deductions after a starting point that already incorporates the utilitarian discount for a guilty plea. Such a two-stage approach constitutes error (at [64]).

  • Where a sentencing court makes a substantial departure from the standard non-parole period ratio, it must provide adequate reasons for doing so. A non-parole period of 35.7 per cent of the head sentence, imposed without explanation in the context of serious and planned armed robbery involving actual violence, was found to be erroneous (at [64]).

  • Strong subjective circumstances, including youth, absence of criminal history, family support, employment, and genuine rehabilitation, remain relevant and can ameliorate sentence, but they do not displace the requirement to give proper weight to deterrence and retribution where the offending involves serious, planned violence against a vulnerable victim (at [60]-[61], [70]).

  • Psychological evidence of deficits affecting offenders carries limited mitigatory weight in the absence of evidence establishing a causal link between those deficits and the offending conduct. Where the proven motivation is revenge or dislike of the victim, unconnected psychological conditions do not materially reduce moral culpability (at [62]-[63]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) – s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) – s 5
- Criminal Appeal Act 1912 (NSW) – s 5D(1)

Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Chung v R [2017] NSWCCA 48
- CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Harris v R [2015] NSWCCA 81
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Perkins v R [2018] NSWCCA 62
- Power v The Queen [1974] HCA 26; 131 CLR 623
- R v Faaoloii, Schaafhausen & Tuala [2016] NSWCCA 263
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Thomas [2007] NSWCCA 269
- R v Tran [1999] NSWCCA 109