Musa v R

1. [1]

   KIRK JA: I agree with Harrison J.

2. [2]

   HARRISON J: Yasir Musa pleaded guilty in the Local Court to aggravated breaking and entering in company and committing a serious indictable offence, namely armed robbery with wounding, in circumstances of special aggravation, being intentionally inflicting grievous bodily harm contrary to s 112(3) of the Crimes Act 1900 (NSW). The maximum penalty for each offence is one of imprisonment for 25 years with a standard non-parole period of 7 years.

3. [3]

   Following his committal to the District Court for sentence, her Honour Culver DCJ sentenced Mr Musa to an aggregate sentence of imprisonment for 15 years, commencing on 20 July 2019 and expiring on 19 July 2034, with a non-parole period of 10 years expiring on 19 July 2029. Her Honour indicated that the sentences she would have imposed if an aggregate sentence had not been imposed were imprisonment for 11 years and 3 months with a non-parole period of 7 years and 6 months for each offence.

4. [4]

   Mr Musa now seeks leave to appeal against the aggregate sentence imposed on him on the single ground that her Honour failed to find as a mitigating factor that he did not have a significant record of previous convictions.

Consideration

1. [5]

   Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides relevantly as follows:

2. [6]

   Mr Musa has one dishonesty offence from August 2016 and some traffic matters. The Crown submitted before the sentencing judge that Mr Musa’s “previous record is … relevant to disentitling [him] to leniency” but expressly indicated in submissions that his “record [was] not relied on … as an aggravating feature in the sense required by this provision …”

3. [7]

   The previous matters to which that submission was directed are as follows:

4. [8]

   Counsel for Mr Musa submitted in the sentencing proceedings as follows:

5. [9]

   Counsel for Mr Musa also submitted in oral argument before her Honour that the previous matters that resulted in convictions were “minor matters”. The goods in custody offence is also not part of his “record of previous convictions” having been dealt with pursuant to s 10 of the Crimes (Sentencing Procedure) Act. See in this respect R v Price [2005] NSWCCA 285 at [36] as follows:

6. [10]

   Mr Musa submitted, and I accept, that his record of previous convictions was not significant: a limited criminal history will almost invariably be relevant to an offender’s prospects of rehabilitation. Moreover, far from being an aggravating factor, Mr Musa’s prior record was one that attracted the operation of s 21A(3)(e). The Crown’s approach before her Honour, in terms eschewing any reliance upon the record as a relevant aggravating factor, did not thereby say anything about the extent to which Mr Musa’s insignificant criminal record of previous convictions should have been taken into account by her Honour as a mitigating factor in determining the appropriate sentence for the offences.

7. [11]

   Her Honour referred to Mr Musa’s criminal history in her remarks on sentence as follows:

8. [12]

   Mr Musa submitted that her Honour fell into error to the extent that she failed to appreciate in the particular circumstances of this case that the words “any significant record” in s 21A(3)(e) meant that Mr Musa, who had no significant criminal record, should in fact have been treated as if he had what her Honour described as “a fully clear criminal record”. In Mr Musa’s submission, her Honour’s remarks make it clear that she erroneously considered that his criminal record was not insignificant and that her Honour should have taken his lack of any significant record of previous convictions into account as a mitigating factor. Mr Musa contended that her Honour’s remark, that “it would not be appropriate to exercise leniency as might have been the case had there been a fully clear criminal history” meant in effect that she determined that Mr Musa was not entitled to any leniency (mitigation) at all. Alternatively, to the extent that there is any doubt arising from the words used by her Honour when dealing with this aspect of the sentencing exercise, any possible ambiguity or doubt should be resolved in Mr Musa’s favour.

9. [13]

   The Crown submitted that it is clear from the whole of the sentencing remarks that her Honour did not consider Mr Musa’s criminal history to be significant and took it into account to some degree in his favour. In particular, the sentencing judge referred to Mr Musa’s “limited criminal history” and his “first time in custody” and noted that he had “no history of violence”. Her Honour took Mr Musa’s limited criminal history into account as one of the factors favourable to his prospects of rehabilitation, even though by reason of other factors her overall assessment of his prospects of rehabilitation was guarded.

10. [14]

    While her Honour did not specifically refer in terms to s 21A(3)(e) or make an express finding that Mr Musa had no significant record of previous convictions, she was not asked by Mr Musa to do so.

11. [15]

    Written submissions on Mr Musa’s behalf at the sentencing hearing emphasised that his record “… should not disentitle him to leniency” and that he “should be treated as a person of good character”. Counsel for Mr Musa referred, in the context of addressing his custodial record, to the fact that he had had “no involvement with the police other than those three minor matters … three driving offences, one under the influence and two disqualifications [which were] not offences of violence in any way.” Counsel also submitted that it did not “appear through any of the material that violence has played a significant part in [Mr Musa’s] life until this incident and then his entering into custody”.

12. [16]

    The Crown submitted that her Honour did not, as Mr Musa contends, find that he was not entitled to any leniency as a result of his limited criminal history. Rather, her Honour found that he was not entitled to the leniency he might have had if there had been a fully clear criminal history: he was still afforded some leniency.

13. [17]

    Accepting that each case turns on its own circumstances, in support of the interpretation of her Honour’s reasons that the Crown contends for, the Crown relied upon Saunders v R [2022] NSWCCA 174 as an analogous case.

Disposition

1. [18]

   Section 21A(3) contains a list of mitigating factors that are to be taken into consideration in the determination of an appropriate sentence: see Meis v R [2022] NSWCCA 118 at [25]. The various circumstances described in the subsection as mitigating factors all require findings of fact followed by an evaluation of the weight, if any, to be given to the factor in question. In the present case, Mr Musa’s record of previous convictions was specifically referred to in her Honour’s sentencing remarks. The question in issue in this Court is whether her Honour sufficiently or adequately turned her mind to an evaluation of Mr Musa’s criminal record.

2. [19]

   Simpson AJA considered the relationship between s 21A(2)(d) and s 21A(3)(e) in Meis at [37]-[40] as follows:

3. [20]

   In Saunders, the sentencing judge who made reference to s 21A(3)(e) concluded that “[h]aving regard to the offender’s criminal history, I am satisfied that it disentitles him to the leniency that would otherwise be available to a person of good character”. It was submitted on Mr Saunders’ behalf that error had been established because no leniency had been given to him as a separate consideration under the paragraph (e). This Court rejected that argument.

4. [21]

   Price J concluded that his Honour’s finding in the court below did not amount to a finding that Mr Saunders’ criminal history disentitled him to any leniency. Price J said this:

5. [22]

   It is uncontroversial that the fact that a sentencing judge does not refer to a factor such as s 21A(3)(e) or expressly refer to the wording of the section to identify as a mitigating factor that the offender did not have a significant criminal record of previous convictions, does not necessarily mean that the sentencing judge did not take it into account as a mitigating factor: see Taylor v R [2018] NSWCCA 255 at [50]; Saunders at [67].

6. [23]

   In the present case, her Honour referred in terms to Mr Musa’s “limited criminal history”. It is in my view difficult to understand those words as anything other than a reference to the absence of “any significant record of previous convictions”. Her Honour was alive to the submission, as the extract from her remarks on sentence above reveals, that Mr Musa’s record should not disentitle him to leniency. Her Honour’s comparison between Mr Musa’s “limited criminal history” and “a fully clear criminal history” serves to indicate that Mr Musa should be afforded some leniency, not that his criminal record should disentitle him to any leniency. So much is apparent from the fact that her Honour specifically indicated that Mr Musa’s limited criminal history will operate in his favour in terms of his prospects of rehabilitation. In other words, the absence of what her Honour described as “a fully clear criminal history” did not disentitle Mr Musa to favourable consideration concerning his prospects of rehabilitation. In my view, her Honour’s words should be read, in the context of her sentencing remarks as a whole, as if the word “such” were inserted before the word “leniency” in the quoted extract, rather than the word “any”. I am satisfied that, read in that way in context, there is no ambiguity of the kind for which Mr Musa contends.

7. [24]

   In my opinion, leave to appeal should be granted but the appeal should be dismissed.

8. [25]

   WRIGHT J: I agree with Harrison J.