Abdaly v R

HOEBEN CJ at CL:

The offence took place on 25 June 2016. The applicant was arrested on 27 June 2017 on other serious charges with the same co-offenders, for alleged conduct both pre-dating and post-dating this offence. He has remained bail refused on those matters since that date. He was charged (in custody) with the subject offence on 19 July 2018 and entered a plea of guilty in the Local Court on 10 May 2019.

The other matters (relating to criminal group activity, commercial quantity drug supply and a prohibited weapon) are listed for trial on 8 February 2021. In January 2020, the applicant was charged with an in custody affray offence and was recently charged with another serious offence related to the trial matters (conceal murder).

The commencement date for the fixed term was backdated to the date when the applicant entered custody on the other matters. Accordingly, it expired on 26 December 2017 and had been entirely served at the time of its imposition on 28 August 2019.

The applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence.

A statement of Agreed Facts was tendered as part of the Crown bundle on sentence (Exhibit A Tab 2). The incident occurred shortly after midnight on 25 June 2016. The applicant (aged 22) and his two co-offenders were at a restaurant owned by associates of the group. The victim and two friends had eaten a pizza at the restaurant and were in their vehicle in the carpark about to leave.

The victim was in the front passenger seat, and noticed the applicant and his two co-offenders staring at him through the restaurant window. The applicant and his co-offenders approached the car, asking the victim why he was staring at them. The victim feared a confrontation. About six other men then came out and surrounded the car. The applicant splashed water from a water bottle onto the victim through the open window saying “We’ll burn you”.

His Honour inferred from that remark that the applicant was suggesting that it was not water he had splashed over the victim but some inflammable substance. His Honour accepted that this remark would have caused the victim to fear for his safety and well being to a considerable extent.

A co-offender demanded that the victim get out of the car and fight him. The victim was in fear of violence and said he just wanted to go home. The co-offenders punched and kicked the victim in the face. The co-offenders also stole $850 in cash, credit cards, and the victim’s drivers licence from his wallet. The victim’s friend was able to reverse the car out of the carpark and flag down a police vehicle nearby. As a result of being assaulted, the victim suffered pain, had a lump over his eye, a cut lip, and red marks to his face.

A few hours later the applicant, his co-offenders, and their associates who owned the restaurant were lawfully recorded by a listening device which had been installed at the residence of one of them (in relation to an ongoing police investigation into other matters).

The applicant and his co-offenders were recorded discussing their roles in the carpark incident. They discussed changing their clothes to conceal their identities from police, and one of the restaurant owners offered to delete any CCTV footage. The applicant was recorded as saying “I’ll tell you who’s going to go down for this? You know who is going to go down for this? You are and I am. You are because you took his ID and whatever, and they showed you that you walked out first, and I am because, I poured water over and said “We’ll burn you” ...”. The applicant left the premises wearing different clothing.

The applicant was sentenced on the basis of his role in a joint criminal enterprise to perpetrate the assault occasioning actual bodily harm. He was not sentenced for the robbery.

The sentencing judge accepted that there was no actual violence by the applicant and that the physical assaults were carried out by the co-offenders. His Honour accepted that the three had “come to some agreement”, i.e. a joint criminal enterprise to assault the victim, before they confronted him in the car (Sentence judgment p4).

By reference to the aggravating element of the offence (in company) in the context of the facts, his Honour found that this was “an unfortunately typical example of young men somehow gaining greater courage when they are together, to confront, intimidate and assault other young men who have not provoked them in any way” (Sentence judgment p4). The sentencing judge found that the number of men present (six) as well as the applicant and his two co-offenders, further exacerbated the seriousness of the “in company” element and raised it to a higher level.

The sentencing judge found that the applicant’s specific actions were serious “to some extent” in that he suggested that he was splashing the victim with an inflammable substance. As already indicated, his Honour found that the threatening words by the applicant as he splashed the victim with water would have been “extremely frightening” to the victim in that the victim would have believed that he had been splashed with an inflammable liquid.

Taking all those matters into account, the sentencing judge assessed the objective seriousness of the offence as falling “towards the lower end of objective seriousness” (Sentence judgment p4).

The sentencing judge found that there were no aggravating factors to be taken into account pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act).

The sentencing judge found that the applicant’s prior criminal record was not of significance (it contained convictions for driving whilst disqualified and the possession of prohibited drugs). His Honour found that the applicant’s criminal record did not disentitle him to any leniency and that it did not suggest a greater need for specific deterrence (Sentence judgment p5).

His Honour found that the applicant was “basically of prior good character”. He was still relatively young and entitled to a degree of leniency not extended to older offenders. The sentencing judge noted that the offence was spontaneous, not planned in any way and that the victim did not suffer any significant injury (Sentence judgment p5).

The sentencing judge found that the plea of guilty was entered in the Local Court and entitled the applicant to a “reduction, of an otherwise appropriate sentence, of approximately 25 per cent”, to reflect the utilitarian value of the plea. His Honour also found that there was a degree of contrition inherent in the early plea and that the Sentence Assessment Report (Exhibit A Tab 5) attributed the applicant as saying he should not have been present and should not have said those words (Sentence judgment p5).

The sentencing judge noted that the applicant’s sister had provided a character reference (Exhibit 1) in which she stated that their family was large and close knit; their father was ailing and the applicant had worked from the age of 18 to assist his mother financially. She indicated that in the lead up to the offence he had started using drugs and hanging around with the wrong crowd.

The sentencing judge also noted that the Sentence Assessment Report indicated that the applicant was affiliated with an outlaw motorcycle gang. His Honour accepted that the applicant had expressed a genuine intention to disconnect from any antisocial peers. His Honour took into account that Exhibit 2 in the applicant’s case comprised a number of urinalysis results showing a nil detection of drugs. Having analysed all of the available evidence, his Honour was ultimately satisfied that the applicant had reasonably good prospects of rehabilitation (Sentence judgement pp5-7).

The sentencing judge found that “this type of offence, with young men attacking other young men without provocation and in a cowardly manner” demonstrated a “‘mob courage’ that exudes from young men banding together, there is a need for deterrence to dissuade others from such offending” (Sentence judgment p8). His Honour that there was some need for specific deterrence.

The sentencing judge took into account that this offence could have been dealt with in the Local Court, but found that the threshold of s 5 of the CSP Act had been crossed by the nature of the threat by the applicant to the victim and his being in company with a large number of young men. His Honour characterised the offence as abhorrent, prevalent, and one which “creates apprehension within the community and undermines any expectation of safety in venturing into public areas”. His Honour’s conclusion was that in all the circumstances, a fixed-term custodial sentence was appropriate. (Sentence judgment pp8-9).

The applicant noted that Division 1A of Part 3 of the CSP Act came into effect on 30 April 2018. He submitted that the effect of the Division was to replace the broad discretion previously reposed in sentencing judges in relation to reducing the penalty to be imposed on an offender by virtue of the utilitarian value of his or her plea of guilty with a regime of mandatory discounts to be applied purely on the basis of the timing of the plea. He submitted that the mandatory nature of the discounts to be applied was expressly stated in s 25D(1) of the CSP Act. In line with that legislation, a plea of guilty accepted by a magistrate in committal proceedings required a reduction of 25 per cent to be applied to the sentence that would otherwise have been imposed but for the plea (CSP Act – s 25D(2)(a)). It was common ground that this change in approach applied to the applicant’s plea of guilty.

In accordance with that legislation, having pleaded guilty to the offence in the Penrith Local Court on 10 May 2019, the magistrate committed him for sentence to the Penrith District Court. The applicant’s complaint was that the sentencing judge did not afford him the 25 percent discount mandated by the CSP Act. This was because the sentencing judge expressed himself as follows:

The applicant submitted that the language employed by the sentencing judge in that extract was redolent of the approach taken by sentencing courts before the enactment of s 25D(1). The applicant submitted that his Honour’s use of the word “approximately” could only be interpreted to mean that while the applicant must have received a discount approaching, or something like 25 per cent, he did not receive the mandatory reduction to which he was entitled.

The applicant submitted that as a result, he was not sentenced in accordance with s 25D(1) and that this was an error of the type which enlivened the Court’s obligation to re-sentence him.

It is clear that s 25D(1) of the CSP Act now mandates that the amount of a sentencing discount to reflect the utilitarian value of a plea of guilty will depend upon its timing. It is further accepted that s 25D(2)(a) states that a reduction of 25 per cent is to be given to any sentence that would otherwise have been imposed if the plea was accepted in committal proceedings. It was not disputed that when referring to the discount, his Honour had used the words “he is entitled to a reduction of the otherwise appropriate sentence of approximately 25 per cent to reflect the utilitarian benefit of that plea to the community”.

Contrary to the applicant’s submissions, such terminology is not inconsistent with s 25D(1) of the CSP Act. His Honour had not yet finished making his findings and accordingly, had not yet indicated the type, length or structure of the intended sentence. Conformably with the context in which the words were used, his Honour’s reference to a reduction of “approximately twenty five percent” at this point in the sentencing judgment simply anticipated the need to potentially round up or down the sentence to be ultimately imposed after applying the discount to avoid a sentence measured in days. Such an adjustment if it took place, might have allowed in favour of the applicant a discount greater than 25 per cent.

Such an approach is consistent with the sentencing practices recommended by this Court. This Court has stressed on a number of occasions the desirability that sentences be in rounded terms. Although a precisely discounted sentence may produce a result involving a number of days less than a month, this Court has favoured an approach whereby a sentence should be rounded up or down at the discretion of the sentencing judge so that sentences are pronounced in years and months only: Sheather v R [2020] NSWCCA 162 at [23].

The principle was expressed in the following terms by R A Hulme J in Kristensen v R [2018] NSWCCA 189 at [42] where his Honour said:

It follows that this Ground of Appeal has not been made out.

The applicant accepted that in the sentencing proceedings he had submitted that should the sentencing judge reject his primary submission, i.e. that he should receive a non-custodial sentence, his fall back position was that a short fixed term of imprisonment should be imposed, commencing from the date on which he first was taken into custody.

That submission was made because when the applicant appeared before the sentencing judge he had already been bail refused for more than two years on unrelated charges and that was likely to remain the situation for a considerable period of time. Against that background, it was apparently thought that there was no utility in fixing a period of parole given:

The applicant submitted that this ground of appeal was not directed at the fact that the sentencing judge had imposed a fixed term of imprisonment but was directed at the sentencing judge’s failure to explain how he had arrived at a fixed term of that length.

The applicant submitted that the sentencing judge was obliged by s 45(2) of the CSP Act to record his reasons for declining to set a non-parole period and that his Honour had failed to do so. The applicant submitted that where the CSP Act imposed a particular obligation on a sentencing court to make a record of his reasons in relation to a certain matter, the requirement for those reasons to be clearly articulated became important (R v Altaf Thawer [2009] NSWCCA 158 at [39] (Howie J; Giles JA and Latham J agreeing).

The applicant submitted that there was a further difficulty created by his Honour’s failure to give adequate reasons. This difficulty arose because it was not clear from his Honour’s reasons whether the fixed term constituted the total sentence or the non-parole portion of the sentence. The applicant submitted that the end result was that this Court is left to speculate as to whether the sentencing judge intended that the fixed term constituted the total sentence or only the non-parole portion of it.

The applicant submitted that for those reasons, the sentencing judge had erred in a material respect in failing to record his reasons for declining to set a non-parole period so that the applicant was entitled to be re-sentenced on this basis as well.

It is not correct to say that his Honour failed to give adequate reasons for his imposition of sentence. The basis for him not acceding to the applicant’s primary submission, i.e. a non-custodial sentence, was clear. His Honour was concerned about the gang element in the offending, when regard was had to general deterrence and specific deterrence, in circumstances where such conduct was prevalent and was causing fear and upset in the community.

Once his Honour had decided that issue adversely to the applicant, he then imposed a sentence in accordance with the request made by the applicant, i.e.:

In those circumstances, having set out his reasons, including the objective seriousness of the offending and otherwise reviewed the facts, there was no obligation on the sentencing judge to provide reasons as to why the fixed term of imprisonment was for 6 months rather than, for example, 5 months or 4 months. That was a matter entirely within his Honour’s discretion after his Honour had set out his findings as to the seriousness of the offending tempered as they were by matters in mitigation and general sentencing principles.

The other matters raised in this ground of appeal are adequately answered by reference to s 46(1) of the CSP Act. That section relevantly provides:

N Adams J had occasion to consider the operation of s 46(1) in Waterstone v R [2020] NSWCCA 117 at [88] where her Honour said:

It follows that s 45(2) has no application given the express application of s 46(1).

This ground of appeal has not been made out.

The applicant submitted that a fixed term of imprisonment of 6 months was too severe because of the following circumstances:

The applicant submitted that the combination of those matters tended strongly in favour of a conclusion that a non-custodial sentence should have been imposed.

As stated recently by this Court in JJ v R [2020] NSWCCA 165 at [14] the principles relating to a ground of manifest excess as determined in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 and in many subsequent authorities may be summarised as follows:

As accepted by the applicant, the “short fixed term sentence” imposed by his Honour was endorsed by his counsel as an alternative submission should the sentencing judge be satisfied that the s 5 threshold of the CSP Act was crossed. For the reasons which he articulated, his Honour was satisfied that no sentence other than one of imprisonment was appropriate. That was a finding by his Honour for the following reasons:

His Honour found that while the applicant did not himself engage in the physical violence directed at the victim, he had made the threat “for no apparent reason and without provocation”. Moreover, it was the applicant who started the physical interaction with the victim by pouring the water on him and making the threat. Before that, there was a verbal confrontation only. It was only after the applicant’s action that the co-offenders had the victim out of the car and punched and kicked him.

The list of findings by the sentencing judge set out by the applicant does not establish that his Honour was in error in determining that the s 5 threshold had been crossed and that therefore, the sentence of imprisonment was the appropriate course to adopt. It is clear from the whole of his Honour’s findings and the application of the principles set out at [49] hereof that a wholly served sentence of 6 months could not be described as “unreasonable or plainly unjust”.

This ground of appeal has not been made out.

The orders which I propose are:

BUTTON J: I agree with the orders proposed by the Chief Judge. My analysis differs only with regard to ground 1, and only as follows.

In my opinion, the reference to a utilitarian discount of “approximately” 25% must be seen as a slip in ex tempore remarks on sentence. The inference is readily to be drawn that a starting point of 8 months was adopted, the discount required by statute was applied to it, and the result was the fixed term of imprisonment for six months.

N ADAMS J: I agree with the orders proposed by Hoeben CJ at CL for the reasons provided by his Honour save that I would dismiss ground 1 for the reasons provided by Button J.