Regina v Sundar [2005] NSWCCA 93

New South Wales Court of Criminal Appeal

Regina v Sundar [2005] NSWCCA 93 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15 March 2005

JUDGMENT DATE: 15 March 2005

JUDGMENT OF: Tobias JA at 1; Wood CJ at CL at 36; Buddin J at 37

DECISION: (1) Leave to appeal granted; (2) Appeal allowed and the sentence imposed on the applicant by Judge Maguire on 28 June 2004 be quashed; (3) In lieu of the sentence imposed by Judge Maguire, the applicant be sentenced to a term of three years imprisonment to commence on 28 March 2003 and expire on 27 March 2006 with a non-parole period of two years to commence on 28 March 2003 and expire on 27 March 2005; (4) Direct that the applicant be released to parole on the expiry of the non parole period on 27 March 2005

CATCHWORDS: CRIMINAL LAW - Sentencing - Appeal against severity of sentence - Application of guideline decision in R v Henry (1999) 46 NSWLR 346 - Discount for early plea of guilty - Significance of utilitarian value of plea - Discount for admissions and assistance to authorities - Assessment of objective seriousness of offence

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

R v Henry (1999) 46 NSWLR 346 R v Hemsley [2004] NSWCCA 228 R v Thomson and Houlton (2000) 49 NSWLR 383 CASES CITED: R v Dib [2003] NSWCCA 117 R v SY & Anor [2003] NSWCCA 291 R v Ellis (1986) 6 NSWLR 603

Regina PARTIES: Jason Abhinay Sundar

FILE NUMBER(S): CCA 2005/98

A: A. Frances COUNSEL: R: J Bennett SC

A: S O'Connor - Legal Aid Commission SOLICITORS: R: S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 03/21/3278

LOWER COURT JUDICIAL OFFICER: Maguire J

IN THE COURT OF CRIMINAL APPEAL CCA 2005/98

TOBIAS JA WOOD CJ at CL BUDDIN J

Tuesday 15 March 2005 REGINA v JASON ABHINAY SUNDAR Judgment 1 TOBIAS JA: On 10 March 2004 Jason Abhinay Sundar (the applicant) pleaded guilty to the charge that on 23 January 2003 at Cabramatta in the State of New South Wales, he did rob Rowan Pettigrew of his Health Care Card the property of Rowan Pettigrew in circumstances of aggravation, namely, at the time of the robbery he did use corporal violence on Rowan Pettigrew. The charge was preferred pursuant to s 95(2)(a) of the Crimes Act 1900 and carried a maximum penalty of 20 years' imprisonment. 2 The sentencing judge, Judge Maguire, sentenced the applicant on 28 June 2004 to a term of five years imprisonment to commence on 28 March 2003 and expire on 27 March 2008. His Honour set a non-parole period of three years to commence on the same date and to expire on 27 March 2006. It is against that sentence that the applicant seeks leave to appeal to this Court.

The facts 3 A statement of facts was tendered before the sentencing judge without objection and is set out in full in the remarks on sentence. I set out a summary of those facts taken from the Crown's written submissions (omitting footnotes): "5. The Applicant and another man, Sreng Taing, believed that the victim had ransacked the bedroom of Taing's mother on New Year's Eve 2002 and stolen some of Taing's sister's property including cash, jewellery and a mobile telephone. On 23 January 2003, the Applicant, who was in a relationship with Taing's sister, lured the victim from a drug intervention service centre in Cabramatta across the street to the backyard of a nearby set of units. The victim then saw Sreng Taing approaching and became worried. He tried to escape through a gap in the fence. Taing yelled ' Grab him ' and the Applicant tackled the victim to the ground and grabbed him by the hair. Both the Applicant and Taing hit and kneed the victim. The victim received a blow to the head and looked up to see that the Applicant had his wallet. The Applicant removed the victim's health care card and in effect warned him that he had one week in which to return the stolen property. Both offenders walked off. The Applicant left the wallet, but kep the health care card, which had the victim's address on it. 6. The victim returned to the drug centre and reported the matter. One of the staff members noticed that his clothes were covered in blood. An ambulance was called and the ambulance officer noted that the victim had multiple abrasions and swelling to his head. 7. He was taken to hospital suffering from grazing to the back of his head, multiple abrasions, dried blood in his nostrils and grazing to the forehead. He had also suffered stab wounds inflicted in the attack by Taing using a pocket knife that were sutured at the hospital, but these did not form part of the Crown case against the applicant. 8. The Applicant approached police as they were apprehending Taing on 7 February 2003 and later that day went to the police station and took part in an ERISP interview. He admitted his part in the matter and stated that he wanted to confront the victim over the stolen property and that he and Taing had ' planned that if they saw Pettigrew they were " going to make him remember what he did " '. He said that he let the victim runaway through a fence and that he was screaming out for help. He tackled the victim to the ground and ' slapped him around a bit '. He said that after he obtained the health care card, he told the victim that he was getting his address ' because I may come and pay a visit at your house just to see if you come through with your side of the deal '. " 4 The applicant was originally charged with aggravated robbery in company with wounding to which he pleaded not guilty. He then pleaded guilty on 10 March 2004 to the subject charge that being the first occasion that that charge had been preferred by the Crown as an alternative count.

The subjective features of the applicant's case 5 The applicant did not give evidence on the sentencing hearing and a report by clinical psychologist Ms Katie Seidler dated 11 May 2004 largely constituted his subjective case. 6 The report stated that during his interview with Ms Seidler, the applicant was "both scattered and tangential" and was "grandiose and odd in his presentation". He informed Ms Seidler that his family had emigrated from Fiji to Australia and that his parents had run various family businesses. 7 The applicant was 31 at the time of sentence and single. He had no previous criminal history to speak of. Although he had been convicted of a number of offences in local courts, they all related to driving offences. 8 Although the applicant had consumed alcohol in his teens and indulged in a variety drugs (including long term use of cannabis to the time of his arrest) and weekend use of amphetamines, since being in custody he reported that his physical and mental condition had improved. He denied being addicted to drugs and was assessed as being of average verbal intelligence and above intellectual intelligence. 9 Ms Seidler at [31] of her report stated in summary form her conclusions: "In summary, Mr Sundar reported a concerning psychological history suggestive of psychosis and depression. In particular, this period of psychological instability appears to have coincided with the death of his mother, the failure of his businesses and the escalation in his drug use. It is unclear how based in reality Mr Sundar's history is and it is suggested that, on the basis of his presentation, Mr Sundar is grandiose and possibly somewhat delusional."

The sentencing judge's remarks 10 As I have already observed, the Crown did not suggest either that the applicant knew that his co-offender was armed with a knife or that there had been any agreement between them that the victim would be wounded as part of the joint criminal enterprise. The sentencing judge referred to the "relatively minor record" of the applicant as relating to break, enter and steal, drug and driving offences. However, the particulars of his previous convictions dated 2 March 2005 do not, as already noted, include anything but five driving offences between September 1993 and February 2002. In any event, as the sentencing judge observed, "significantly he has no prior record of violence." 11 The sentencing judge then set out the subjective matters to which I have referred which he said he had taken into account. In particular, he set out in extenso the report of Ms Seidler. His Honour concluded that the applicant's admissions to the police provided the prosecution with a case "that otherwise scarcely existed". 12 The sentencing judge accepted that the applicant was contrite and that what happened was not originally intended as a robbery but merely as an exercise intended to frighten Mr Pettigrew. He noted that a guilty plea had been entered in response to an indictment on a less serious charge and had been accepted by the Crown and had been taken into account by him on the question of sentence. He also noted the applicant's assistance to authorities which entitled him to a "significant discount". He then said: "The community takes a serious view of crimes such as this and expects appropriate punishment. I perceive the need for deterrence. I am mindful of the guideline decision in Henry "

being a reference to R v Henry (1999) 46 NSWLR 346 at 380. 13 Being mindful of the principle of parity, the sentencing judge considered that the offence committed by the applicant's co-offender did not bear the same gravity as that committed by the applicant. In this respect his co-offender had been charged with malicious wounding in respect of which the maximum penalty was imprisonment for seven years. He was sentenced by his Honour to a term of three years' imprisonment with a non-parole period of 18 months. I should interpose that strictly speaking the principles of parity did not arise as the offenders were charged with different offences. Nevertheless the corporal violence committed by the applicant upon Mr Pettigrew was in my opinion of significantly less seriousness than that inflicted by his co-offender who struck the victim three times to the left side of his body and back with a knife. On the other hand, the corporal violence inflicted by the applicant (and his co-offender) was that he had "hit and kneed him". Of course, the other difference between the two offences was that the applicant had robbed Mr Pettigrew of his Health Care Card. It should be observed that, although he went through Mr Pettigrew's wallet, he took nothing else from it. 14 After indicating that he had taken into account the provisions of s 22A of the Crimes (Sentencing Procedure) Act 1999 (the Act), his Honour said that in the present case rehabilitation loomed large. He considered that, given supervision, the applicant might well be helped to become a better citizen and would therefore benefit from an extended period of supervision which he regarded as amounting to special circumstances for the purposes of s 44(2) of the Act.

Ground One – the sentencing judge had insufficient regard to the applicant's plea of guilty

Ground Two – the sentencing judge had insufficient regard to the evidence of the applicant's admissions and assistance to police 15 The applicant submitted that the sentencing judge did not make mention of the timeliness, nor the utilitarian value, of the applicant's plea of guilty. It was thus submitted that his Honour fell into error in not doing so given the difficulty of otherwise divining from the Remarks on Sentence what discount had in fact been attributed by his Honour to the plea. 16 The sentencing judge's reference to Henry relates to the Chief Justice's opinion (at 380 [165]) that sentences for an offence which had the characteristics identified by him in [162] of his judgment should generally fall between four and five years for the full term. Those seven characteristics in question which, if present, would justify a sentence within the range referred to, were as follows:

(i) young offender with no or little criminal history; (ii) weapon like a knife, capable of killing or inflicting serious injury; (iii) limited degree of planning; (iv) limited, if any, actual violence but a real threat thereof; (v) victim in a vulnerable position such as shop keeper or taxi driver; (vi) small amount taken; (vii) plea of guilty, the significance of which is limited by a strong Crown case. 17 It is now accepted doctrine that the seventh characteristic identified by the Chief Justice refers to a late plea (R v Hemsley [2004] NSWCCA 228 at [30]) in respect of which the guideline range in Henry has been taken as having allowed a discount of only 10%. 18 The applicant therefore submitted that, in contrast to the seventh characteristic in Henry, where the plea of guilty has limited significance due to a strong Crown case and is to be taken as a late plea, in the present case the applicant's plea had a significant amount of utilitarian value because, as the sentencing judge observed, his admissions to the police provided the prosecution with a case that otherwise scarcely existed and be pleaded as soon as the Crown preferred the lesser or alternative charge. 19 So far as the applicant's guilty plea was concerned in terms of its utilitarian value, it was submitted that if one assumes (as one must) that the plea of guilty in Henry would result in a 10% discount for utility, in the present case the applicant was entitled to an additional 15% taking him to the top of the range enunciated in R v Thompson and Houlton (2000) 49 NSWLR 383 of 25%. It was further submitted that the applicant was entitled to a discount in the order of 10% for contrition alone (as distinct from the discount for assistance and admissions) which would result in an overall 25% reduction in the Henry guideline resulting in a range of sentence (before consideration of other mitigating factors) of three years to three years nine months. Assuming the sentencing judge discounted the sentence imposed by 30% for utility, contrition and assistance, this represented a starting point of seven years which, it was submitted, was manifestly excessive in the circumstances. 20 The applicant further submitted that, although the sentencing judge stated that the applicant was entitled to a "significant discount" for his assistance to the authorities, the severity of the sentence imposed did not reflect such a discount. Furthermore, it was submitted that his Honour did not have regard to the provisions of s 23 of the Act which required regard to be had to "the usefulness of the offender's assistance" (s 23(2)(b)), "the truthfulness, completeness or reliability of any information or evidence provided by the offender" (s 23(2)(c)) and "the likelihood that the offender will commit further offences after release" (s 23(2)(j)). 21 The Crown submitted that a plea of guilty at the first opportunity available to a lesser count offered by the Crown did not lead automatically to the maximum discount for the utilitarian value of the plea: see R v Dib [2003] NSWCCA 117 per Hodgson JA at [5] and [6]; R v SY & Anor [2003] NSWCCA 291 per Howie J (with whom Ipp JA and Whealy J agreed) at [86]-[87]. 22 It is not entirely clear from the evidence in the present case whether, to adopt what Howie J said in SY at [86], this case is an occasion where the nature of the bargain struck between the applicant and the Crown indicates that the former could not reasonably have been expected to have pleaded guilty before the opportunity was presented for him to plead to the less serious charge. Nevertheless the charge to which the applicant pleaded not guilty was that of aggravated robbery in company with wounding. The Crown conceded that the applicant was unaware that his co-offender was armed with a knife and that there was no agreement that the co-offender would wound the victim as part of any joint criminal enterprise. In these circumstances, it seems to me that in all probability the applicant did plead guilty at the first opportunity to a lesser offence in circumstances where he could not reasonably have been expected to plead guilty to the more serious offence with which he was originally charged and to which he had pleaded not guilty. Accordingly, it behoved the sentencing judge to look at the situation realistically, as Howie J noted in SY, in determining the value of the plea on a utilitarian basis. 23 The problem, of course, is that a reading of the Remarks on Sentence does not assist in determining the extent to which the sentencing judge allowed for the utilitarian value of the plea. However, given a head sentence of five years' imprisonment, which is the top of the range, referred to in Henry, the extent of the discount could not have been significant. As in my opinion the applicant's plea should be regarded as an early plea, he was entitled to a discount exceeding 10%. 24 Although, as I have pointed out, sentencing judges are not obliged to state the amount of the discount, nevertheless they are encouraged to do so lest it be concluded that inadequate weight was given to the plea. As to the applicant's admissions and assistance to the police, the sentencing judge accepted that his assistance to the authorities entitled him to a "significant discount" as his admissions to the police provided the prosecution "with a case that otherwise scarcely existed". 25 The Crown submitted that, on the authority of R v Ellis (1986) 6 NSWLR 603, it could not necessarily be said that in the present case the applicant "voluntarily" came forward in circumstances where otherwise his criminality would not have been detected. It further submitted that the police had approached his co-offender and were taking him away and the applicant may well have feared that his co-offender would have revealed both his identity and his participation in the offence. It is therefore submitted that it is clear that the applicant did not approach the authorities "out of the blue" through a "guilty conscience". 26 The problem with the foregoing submissions is that they appear to have been rejected by the sentencing judge. As I have observed, his Honour considered that the applicant's admissions to the police provided the prosecution with a case that otherwise scarcely existed. He therefore considered that his assistance to the authorities entitled him to a significant discount. Having made those findings, as well as a finding that the applicant was contrite and that what happened was not originally intended as a robbery but merely as an exercise to frighten the victim, it is difficult to appreciate the extent to which his Honour provided the significant discounts to which he said the applicant was entitled given that he imposed a head sentence of five years. 27 In my opinion, the sentence so imposed by his Honour reflects a failure to provide the discounts to which his Honour accepted the applicant was in fact entitled. It follows that the sentencing discretion exercise by his Honour miscarried.

Ground Three – the sentencing judge erred in an assessment of the objective seriousness of the offence 28 This ground overlaps to a significant degree with the first two grounds. The Crown submitted that the guideline judgment in Henry was applicable to the subject offence and indicated that a full term of four to five years' imprisonment was appropriate as a starting point for what it submitted was a late plea of guilty for the commonly recurring case identified in the guideline. The Crown further submitted that the present case was aggravated in two respects. The first was that the actual violence used was considerable. It was submitted that the applicant tackled the victim to the ground and grabbed him by the hair whereupon he was grabbed by both offenders who hit and kneed him. As a consequence, he suffered multiple abrasions, swelling to his face, a bloodied nose and a grazed forehead. Secondly, it was submitted that there was significant degree of planning in that the victim was identified by the applicant outside the drug centre and "lured" away by him to another location. Finally, it was submitted that the taking of Mr Pettigrew's Health Care Card was significant because it had his address on it and in fact that was the reason the applicant took it. In any event, although of little, if any, value to anyone else (including the applicant), it was of value to its owner. 29 The sentencing judge described the offence to which the applicant's co-offender had pleaded guilty as a "nasty crime" but not one as serious as that committed by the applicant. He reflected this consideration in imposing a sentence of three years' imprisonment with a non-parole period of 18 months upon the co-offender. Although the applicant tackled Mr Pettigrew, grabbed him by the hair and then, in company with the co-offender hit and kneed him, that was the extent of the corporal violence he visited upon the victim. On the other hand, as I have already observed, his co-offender, as well as grabbing the victim, and then hitting and kneeing him, produced a knife and stabbed him three times. It is difficult in these circumstances when considering the respective objective seriousness of the offences committed by each offender to justify the comment that the offence committed by the applicant's co-offender was not as serious as that of the applicant at least so far as the element of violence was concerned. That is not to say that the applicant's conduct was not objectively serious: only that that of his co-offender exceeded it. 30 Of course, the major difference between the two offences is that the applicant robbed the victim of his Health Care Card. It was that action (which his Honour found was not planned) that attracted the offence of robbery. But one must be careful in the particular circumstances of this case not to use the word "robbery" in a pejorative sense. As I have noted, the sentencing judge accepted that what happened was not originally intended as a robbery but merely an exercise intended to frighten the victim. 31 In light of the foregoing observations, one can contrast the present circumstances with the seven characteristics identified by the Chief Justice in Henry as generally justifying a head sentence of between four and five years:

(i) Although the applicant was not young (being 30 years old at the time of the offence) he had no relevant criminal history;

(ii) As far as the applicant was concerned, no weapon was involved;

(iii) Although there was a limited degree of planning to frighten the victim, there was no plan to rob him;

(iv) So far as the applicant was concerned, there was limited actual violence inflicted by him upon the victim;

(v) The victim was not in a vulnerable position such as a shop keeper or taxi driver;

(vi) No money was taken from the victim, only his Health Care Card which was no doubt replaceable;

(vii) The applicant pleaded guilty at the earliest opportunity and the significance of that plea was not limited by a strong Crown case. 32 It was made clear by the Chief Justice in Henry (at 381, [169]) that both aggravating and mitigating factors may justify a sentence below or above the range of between four and five years which was to be the starting point in a case which attracted the seven characteristics he had identified. 33 In the present case the sentencing judge has imposed a term of five years in circumstances where nearly all of the seven characteristics, which would otherwise justify a starting sentence of four to five years, are missing. The Crown points to only two aggravating features, namely, that actual violence was inflicted by the applicant and that there was a significant degree of planning. It is true that actual violence was used but not correct that there was a significant degree of planning in terms of the robbery. The sentencing judge's finding was to the contrary. 34 In my opinion, the objective seriousness of the subject offence is not as great as that the subject of the guideline judgment in Henry. In these circumstances, it is clear to me that the head sentence of five years' imprisonment was manifestly excessive. It must therefore be quashed.

Re-sentencing the applicant 35 This finding requires the Court to re-sentence the applicant. Given the considerations to which I have referred, in my opinion an appropriate head sentence would be three years' imprisonment with a non-parole period of two years. I would therefore propose the following orders: (1) Leave to appeal granted; (2) Appeal allowed and the sentence imposed on the applicant by Judge Maguire on 28 June 2004 be quashed; (3) In lieu of the sentence imposed by Judge Maguire, the applicant be sentenced to a term of three years' imprisonment to commence on 28 March 2003 and expire on 27 March 2006 with a non-parole period of two years to commence on 28 March 2003 and expire on 27 March 2005;

(4) Direct that the applicant be released to parole on the expiry of the non-parole period on 27 March 2005. 36 WOOD CJ at CL: I agree with Tobias JA. 37 BUDDIN J: I agree with Tobias JA. **********

17/03/2005 - Typographical amendment to paragraph 17 - from 1% to 10% - Paragraph(s) 17

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