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Court of Criminal Appeal 29 June 2001

Regina v Wahabzadah [2001] NSWCCA 253 revised - 6

[2001] NSWCCA 253

Theft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE

Citation: Regina v Wahabzadah [2001] NSWCCA 253
Court: New South Wales Court of Criminal Appeal
Date: 29 June 2001
Judge(s): Wood CJ at CL; Howie J

Background

The applicant pleaded guilty in the District Court to armed robbery with a dangerous weapon under s 97(2) of the Crimes Act 1900, after he and a co-offender robbed a costume shop in Gladesville on 20 April 2000. The applicant confronted the victim at gunpoint while wearing a balaclava, and was identified as the more aggressive of the two men throughout the offence. The weapon was later found to be a replica pistol.

District Court Judge Phegan sentenced the applicant to four years imprisonment with a non-parole period of three years. The co-offender, Fusitua, received three years imprisonment with a non-parole period of only 18 months, a difference explained partly by Fusitua's more conciliatory conduct during the robbery, his assistance to police in locating the weapon, and a finding that special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 existed in his case but not the applicant's.

The applicant sought leave to appeal, arguing that the disparity in non-parole periods gave rise to a justifiable sense of grievance, and separately that the sentencing judge erred by failing to consider that the applicant was being held in protective custody when assessing whether special circumstances existed.

  • Whether the disparity between the applicant's and Fusitua's sentences, particularly the difference in non-parole periods, gave rise to a justifiable sense of grievance on the applicant's part.
  • Whether Judge Phegan erred by failing to take into account the applicant's placement in protective custody when determining whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999.
  • Whether fresh evidence about the impact of protective custody on the applicant's access to rehabilitation programmes was relevant to re-sentencing.

Decision

The Court accepted that the disparity in the head sentences was justifiable. The differences between the two offenders were significant: Fusitua had no prior criminal record, assisted police, and behaved in a notably less threatening manner toward the victim. By contrast, the applicant had a prior record that included demanding money with menaces and carrying a cutting weapon, indicating that his conduct during the robbery was not an aberration.

However, the Court found error in Judge Phegan's treatment of the special circumstances question. Protective custody is a recognised factor that can lengthen the burden of a custodial sentence, and it was therefore a matter the sentencing judge was required to consider when deciding whether a non-parole period shorter than the statutory proportion was warranted. Because the applicant was serving his first term in custody in protective custody, the failure to refer to this at all made it unsafe to assume it had been taken into account. That omission justified granting leave to appeal.

Fresh evidence placed before the Court of Criminal Appeal reinforced the case for special circumstances. The material demonstrated that the applicant's placement in protective custody was actively impeding his access to drug rehabilitation programmes, which was directly relevant to addressing the addiction that underlay his offending. A shorter non-parole period would allow him to be released into a more intensive community-based rehabilitation setting sooner, subject to the Parole Board's assessment.

The Court allowed the appeal and reduced the non-parole period from three years to two years and three months, while leaving the four-year head sentence intact.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The non-parole period imposed by Judge Phegan was quashed.
  • In lieu, a non-parole period of 2 years and 3 months was specified, expiring on 19 July 2002, being the date upon which the applicant would become eligible for release to parole.

Key Takeaways

  • A sentencing court is required to consider whether a custodial offender is held in protective custody when assessing special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999, because protective custody can significantly increase the hardship of imprisonment.
  • The Court of Criminal Appeal confirmed that failure to refer to protective custody in sentencing remarks, where it is a material factor, constitutes an error that may justify appellate intervention, even where the overall sentence is not manifestly excessive.
  • Disparity between co-offenders' sentences does not automatically give rise to a justifiable sense of grievance: differences in role, criminal history, assistance to authorities, and subjective circumstances can all justify divergent outcomes.
  • Where fresh evidence demonstrates that custodial conditions are actively preventing access to rehabilitation, that material is relevant to the appropriate length of a non-parole period on re-sentencing.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, the weight given to special circumstances depends on the objective seriousness of the offence and the extent to which deterrence must be reflected in the non-parole period, meaning the finding is necessarily case-specific.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 51A, 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v Henry (1999) 46 NSWLR 346
- Lowe v The Queen (1984) 154 CLR 606
- Postiglioni v The Queen (1997) 189 CLR 295
- R v Bell [1999] NSWCCA 423
- R v Muavae [2000] NSWCCA 88