Afu v R

1. [1]

   THE COURT: On 4 November 2015 the applicant pleaded guilty in the District Court to the following offences:

2. [2]

   The offending in each of counts 1 and 2 was contrary to s 97(2) of the Crimes Act 1900 (NSW) whilst that in count 3 was contrary to ss 97(2) and 347 of the same Act. A maximum penalty of 25 years imprisonment was prescribed for the offending in respect of each of those counts. The offending in count 4 was contrary to s 7(1) of the Firearms Act 1996 (NSW) and carried a maximum penalty of 14 years imprisonment, with a standard non-parole period of 3 years imprisonment.

3. [3]

   The applicant asked the sentencing judge to take two additional offences into account on sentence, namely:

4. [4]

   The applicant had originally pleaded not guilty to all charges. His trial had commenced on two separate occasions. On each of those occasions, an order was made discharging the jury. After the matter was listed for trial for a third time, the applicant entered pleas of guilty to each of the counts. The sentencing judge noted that such pleas “came late” [1] as a consequence of which the applicant was entitled to a discount of 10%.

5. [5]

   The sentencing judge expressed the following indicative sentences:

6. [6]

   The sentencing judge then imposed an aggregate sentence of 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months imprisonment.

7. [7]

   The applicant sought leave to appeal against that sentence on the grounds more fully set out below. At the conclusion of the hearing, the Court made orders refusing leave to appeal and indicated that reasons would be published in due course. Those reasons now follow.

THE FACTS OF THE OFFENDING

1. [8]

   The sentencing judge found the facts of the offending to be as follows [2] :

The sentences imposed on the co-offenders

1. [9]

   The sentencing judge sentenced three co-offenders, namely David Mafi (“Mafi”), Raimondo Corak-Phan (“Corak-Phan”) and Rajuel Khurana (“Khurana”). The Crown provided the following summary of the charges brought against all of the offenders, and the penalties imposed:

Submissions of the applicant

1. [10]

   The written and oral submissions of the applicant emphasised what was said to be a justifiable sense of grievance, arising principally from the sentence imposed upon Mafi. It was submitted, in particular, that the offences committed at the Glasgow Arms and Melton Hotels were the primary offences, and that the applicant:

2. [11]

   The applicant further submitted that Mafi deserved greater punishment because (inter alia) he was on parole at the time of the offending. It was also submitted that the applicant demonstrated stronger prospects of rehabilitation than any of his co-offenders.

Submissions of the Crown

1. [12]

   It was submitted on behalf of the Crown that there was no disparity in the sentences imposed. It was submitted that it was evident from the reasons of the sentencing judge that he was conscious of the need to apply parity principles, and that there were a number of important differentiating features between the applicant and Mafi, not the least of which was that Mafi had pleaded guilty at the earliest available opportunity and, as a consequence, had received the benefit of a greater discount on sentence.

Consideration

1. [13]

   Consistency in the punishment of offences against the criminal law finds expression in the parity principle. That principle requires that like offenders be treated in a like manner, but also allows for different sentences to be imposed for the same offences to reflect different degrees of culpability and/or different circumstances [3] . Unjustifiable disparity is an infringement of the equal justice norm [4] .

2. [14]

   The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. A court will refuse to intervene where disparity is justified by differences between co-offenders, such as age, background, criminal history, general character and the part that each has played in the relevant criminal conduct or enterprise [5] .

3. [15]

   In the present case, the same judge sentenced all of the offenders. He was therefore fully aware of the circumstances of the offending, as well as the respective subjective cases. Where a sentencing judge recognises the importance of the parity principle and ostensibly gives effect to it, this Court will be cautious to intervene. Any disparity must be gross, marked, or glaring in order to justify such intervention [6] .

4. [16]

   It is evident from the observations of the sentencing judge that he was mindful of the parity principle when he came to sentence the applicant. His Honour commenced by saying [7] :

5. [17]

   Later, his Honour said [8] :

6. [18]

   There were two principal differences between the respective subjective cases of Mafi and the applicant. Firstly, Mafi had pleaded guilty at the first available opportunity and had therefore been given the benefit of the discount of 25%. As previously noted, the applicant’s pleas of guilty came at a very late stage, as a consequence of which he was given a discount of 10%.

7. [19]

   Secondly, it is apparent from reading the sentencing judge’s remarks in relation to Mafi that there were a number of favourable subjective circumstances upon which the present applicant could not rely. In particular, his Honour was satisfied that Mafi had suffered from learning and comprehension difficulties and that he had poor verbal intellectual capacity, and limited non-verbal cognitive capacity. In these circumstances, he concluded that Mafi was a person whose limited capacity and maturity had had an effect on his ability to calculate the risk of committing serious offences and the consequences of his behaviour.

8. [20]

   These matters go to explain the respective sentences which were imposed upon Mafi on the one hand, and the applicant on the other.

9. [21]

   For all of these reasons, this ground lacked substance.

The evidence

1. [22]

   In a letter tendered on sentence the applicant said (inter alia) the following [9] :

The findings of the sentencing judge

1. [23]

   In dealing with the issue of delay, his Honour said [10] :

2. [24]

   His Honour found that there had been some “growing maturity” on the part of the applicant since his offending [11] , before saying [12] :

Submissions of the applicant

1. [25]

   The applicant submitted that the sentencing judge had failed to give him credit for overcoming his drug addiction, in circumstances where such addiction was said to be “a primary reason for the offending”. He emphasised the contents of the testimonials tendered on sentence [13] which had variously referred to his determination to improve himself, his engagement in drug and alcohol counselling, his undertaking an apprenticeship and his pursuit of employment opportunities which had been made available to him.

Submissions of the Crown

1. [26]

   The Crown submitted that it was evident from the remarks of the sentencing judge that the applicant’s progress towards rehabilitation had been taken into account as a matter of significance. It was submitted that, properly understood, the gravamen of the applicant’s complaint in respect of this ground was that the sentencing judge had failed to give sufficient weight to that factor. The Crown submitted that questions of weight were quintessentially matters within the discretion of the sentencing judge, with which this Court would be reluctant to interfere.

Consideration

1. [27]

   It is evident from those parts of the sentencing remarks set out at [23]-[24] above that the sentencing judge had regard to the applicant’s steps towards rehabilitation. As the Crown submitted, the applicant’s real complaint is that the sentencing judge gave insufficient weight to those factors. In order to establish a basis for the intervention of this Court, it is not sufficient for an applicant to assert that a sentencing judge gave insufficient weight to one fact or another. [14] Indeed, unless the sentence can be said to be manifestly excessive, it is not possible to assess what “weight” has been given to a specific factor which has been expressly identified in the judge’s reasons. The applicant must demonstrate a House v The King [15] type error. Nothing put on behalf of the applicant demonstrates such an error. Accordingly this ground was without substance.

The reasons of the sentencing judge

1. [28]

   After noting that he was imposing an aggregate sentence, the sentencing judge said the following [16] :

Submissions of the applicant

1. [29]

   The applicant did not make any specific submissions in support of this ground. However, the ground appears to assert that there was excessive accumulation in the sentences imposed, and that this was a consequence of the failure of the sentencing judge to recognise elements of the offending which were common to more than one of the offenders.

Submissions of the Crown

1. [30]

   The Crown submitted that it was apparent that the sentencing judge was mindful of the fact that there were common features in the offending, and that he had taken those factors into account.

Consideration

1. [31]

   The sentencing judge made express reference, in the passage set out at [28] above, to the fact that there were features common to more than one of the offences. In circumstances where his Honour imposed an aggregate sentence, any degree of concurrence and accumulation can only be inferred. In any event, questions of concurrence and accumulation were matters within the discretion of the sentencing judge, and no error has been demonstrated.

2. [32]

   It follows that this ground lacked substance.

The reasons of the sentencing judge

1. [33]

   As set out at [22] above, the applicant provided a letter to the court in which he referred to having a “mentality of being a would-be, wana-be gangster”. In the sentence proceedings before his Honour [17] the following exchange took place between the sentencing judge and counsel then appearing for the applicant:

2. [34]

   In his remarks, the sentencing judge said [18] :

3. [35]

   The sentencing judge later said [19] :

Submissions of the applicant

1. [36]

   It was made clear in oral submissions that this ground of appeal relied primarily upon what his Honour had said in [35] above. It was submitted on behalf of the applicant that the sentencing judge had erred in treating the applicant’s “gangster lifestyle”, and his commission of “gangster type crimes”, as aggravating factors. To the extent that his Honour’s statements stemmed from what the applicant himself had said in the letter tendered in the sentence proceedings, it was submitted that it was “quite unfair” for his Honour to have made the comments in the terms in which he did. It was submitted that the only reasonable conclusion was that in referring to “gangster type crimes” his Honour was referring to the fact that the offences were committed in company. It was submitted that his Honour had incorrectly treated that as an aggravating factor under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and had therefore double-counted when imposing sentence.

Submissions of the Crown

1. [37]

   The Crown submitted that the construction of his Honour’s remarks advanced by the applicant was not one that was reasonably open. It was emphasised, in particular, that his Honour’s reference to “gangsters” was in the same terms as those adopted by the applicant himself in his letter to the court.

Consideration

1. [38]

   In making the references that he did, his Honour adopted the description of the applicant’s offending, and his lifestyle, in precisely the same terms which had been used by the applicant himself. It was expressly accepted by the applicant’s solicitor before this Court that it was necessary to view his Honour’s comments in that context. It was not just a colourful way of saying the offences were committed in company. Given such context, there is no basis for asserting that his Honour engaged in any double-counting by taking into account an element of an offence as an aggravating factor.

2. [39]

   This ground had no substance.

The findings of the sentencing judge

1. [40]

   The sentence judge made a finding of special circumstances in the following terms: [20]

Submissions of the applicant

1. [41]

   Whilst acknowledging both the conclusion reached by the sentencing judge as to special circumstances, as well as the fact that such conclusion resulted in the reduction of the ratio between the head sentence and the non-parole period to one of 60%, it was submitted on behalf of the applicant that the steps that he had taken toward rehabilitation, and his demonstrated progress, warranted a more significant adjustment.

Submissions of the Crown

1. [42]

   The Crown submitted that the differing circumstances applicable to the applicant on the one hand and Mafi on the other explained the variations made by the sentencing judge to the statutory ratio in each case. It was further submitted that it was evident that in reaching the conclusion that he did regarding special circumstances, the sentencing judge had taken into account all relevant factors.

Consideration

1. [43]

   Having found special circumstances, it was a matter for the exercise of the discretion of the sentencing judge to determine the extent to which the statutory ratio was to be adjusted. In fact, the adjustment was significant, being a reduction of a little over 13 months, or 20% of the minimum term. Nothing submitted on behalf of the applicant establishes that such discretion miscarried in any way.

2. [44]

   This ground was without substance.

ORDERS

1. [45]

   For these reasons leave to appeal was refused.