R v Tortell, R v Tsegay [2007] NSWCCA 313

New South Wales Court of Criminal Appeal

CITATION: R v Tortell, R v Tsegay [2007] NSWCCA 313

HEARING DATE(S): 24 September 2007

JUDGMENT DATE: 15 November 2007

JUDGMENT OF: McClellan CJ at CL at 1; Adams J at 21; Harrison J at 22

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – Crown appeal against inadequacy of sentence – offences of aggravated robbery and knowingly being carried in a stolen conveyance – non custodial sentence imposed based on strong subjective circumstances – whether error in assessing objective seriousness of offence – whether non custodial sentence for offence of robbery inappropriate in circumstances of aggravation – respondents sentenced to period of community service – sentences already commenced – common law principle against double jeopardy - exercise of residual discretion of Court not to interfere - appeal dismissed

Crimes Act 1900 - ss 94, 95, 154A(1)(b) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 - ss 5D

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Dinsdale v The Queen (2000) 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 R v Baker [2000] NSWCCA 85 R v Burns [2007] NSWCCA 228 R v Geddes (1936) 36 SR (NSW) 554 CASES CITED: R v Hemsley [2004] NSWCCA 228 R v Henry (1999) 46 NSWLR 346 R v Hernando (2002) 136 A Crim R 451 R v Hicks (1987) 45 SASR 270 R v Holder [1983] 3 NSWLR 245 R v Horne [1999] NSWCCA 391 R v Kyroglou [1999] NSWCCA 106 R v Wall [2002] NSWCCA 42

Regina (Appellant) PARTIES: Shannon Tortell - Respondent Sami Tsegay - Respondent

FILE NUMBER(S): CCA 2007/3216; 2007/3217

N Adams - Appellant COUNSEL: A Frances - Respondent (Tortell) H Dhanji - Respondent (Tsegay)

SOLICITORS: S Kavanagh, Solicitors for Public Prosecutions - Appellant S O'Connor - Solicitor for the Legal Aid Commission of New South Wales - Respondents

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/0366; 06/21/0331

LOWER COURT JUDICIAL OFFICER: Bennett DCJ

LOWER COURT DATE OF DECISION: 21June 2007 (date of sentence)

IN THE COURT OF CRIMINAL APPEAL 2007/3216; 2007/3217

McCLELLAN CJ at CL ADAMS J HARRISON J

15 November 2007 REGINA v Shannon TORTELL REGINA v Sami TSEGAY Judgment 1 McCLELLAN CJ at CL: I have had the benefit of reading in draft the judgment of Harrison J. I agree that the appeal should in the present circumstances be dismissed. However, in my opinion there was error in the sentencing process. By providing a sentence of community service rather than requiring a term in custody the sentence was manifestly inadequate. 2 Harrison J has recorded the relevant factual matters and I need not repeat them. Both respondents pleaded guilty to the offence of aggravated robbery contrary to s 95 of the Crimes Act 1900. That offence carries a maximum penalty of 20 years imprisonment. They also asked that a further offence of knowingly being carried in a stolen conveyance contrary to s 154A(1)(b) of the Act be taken into account on a Form 1. 3 The offences were committed in the early afternoon of Tuesday, 8 August 2006. The victim was carrying a backpack which contained a significant quantity of cash and cheques to the value of $51,482.19. This was money which he had collected on behalf of a client for whom he was to deposit it into an account at a branch of the Westpac Bank. The victim was a self-employed private mail contractor who provided a banking service for his clients. 4 The evidence indicated that prior to the robbery a number of phone calls had been made from a client of the victim to each of the respondents. Both respondents knew an employee of that client. 5 As the victim approached the bank, Tortell attempted to take the backpack from him. Tsegay was nearby. There was a struggle during which the victim resisted and took hold of Tortell. Tsegay ran off with the bag containing the cash and cheques. A passer-by ran after Mr Tsegay, who with a further offender, went to a car that they had stolen that afternoon. They drove off. 6 Section 95(1) provides that it is an offence to rob a person or steal any chattel, money or valuable security from a person, in circumstances of aggravation. The circumstance of aggravation conceded by the respondents was the use of corporal violence on the victim. The sentencing judge considered the matter of aggravation and said: "On behalf of the offender his counsel brought to my attention the description of the event given by Mr Byrne in his statement which has been included in exhibit A. Specifically at paras 14 and 15 Mr Byrne describes how in anticipation of the offender approaching him he took hold of the offender and pulled him down and then held him until assistance came from others and where he was forcibly detained until the arrival of police.

I am asked to note that such violence as occurred was responsive in that it was prompted by the attempt of the offender to take the backpack, which was eventually grabbed by the offender Tsegay and left Mr Byrne, quite justifiably, to almost pre-emptively take hold of the offender.

In these circumstances, as I understand the submission, the appropriate finding is that the intention was to grab the backpack without involving any actual violence beyond that, but that the response by the victim took the event to another direction, in the course of which the offender became the subject of a vigorous restraint in the course of the struggle, in which he was a participant in the endeavour to steal the backpack and its contents." 7 In these circumstances his Honour accepted that although there was some level of corporal violence it should be seen to be at the lower end of the range of objective seriousness and perhaps little more than an offence of robbery simpliciter or perhaps steal from a person, contrary to s 94 of the Crimes Act. 8 In my opinion this was not the appropriate resolution of the question of corporal violence. Although it may have been the intention of the respondents to rob the victim, and make a quick and effective getaway, it would be entirely unreal for them to have not anticipated that the victim may respond by seeking to resist the respondents and restrain at least one of them. This is what happened leading to an intense struggle. It seems to me that the fact that that struggle may have been initiated by the victim is largely irrelevant to an appreciation of their culpability. It was always likely that to secure the bag or make good their escape the respondents would end up in some form of violent struggle. 9 His Honour's reference to the offence of robbery was a reference to s 94 of the Crimes Act 1900. An offence against that section carries a maximum term of imprisonment of 14 years. Even accepting that the corporal violence was not of a high order the legislature has made plain that the offence of robbery is very serious. It will be only be in an exceptional case that some form of custodial sentence will not be appropriate when robbery is committed in circumstances of aggravation. 10 The sentencing judge accepted a summary of the facts which included a synopsis of what the respondent Tsegay said in the course of his interview by the police. His Honour said: "That the other two offenders picked up this offender from Glebe in the stolen car, that he and the young offender waited in the car park until the arrival of Mr Byrne, that upon sighting Mr Byrne this offender and Tortell carried out the theft whilst the young offender waited in the nearby stolen [car], and that when he and the young offender saw that Tortell was restrained they abandoned the scene in the stolen car, which they dumped at Glebe. He told the police the robbery was planned on the Saturday night before, in discussions between the three offenders and others, two of whom were employees of another client company of Mr Byrne from which telephone calls had been made to this offender and Tortell who was employed there." 11 The sentencing judge accepted that the offence was planned. He said: "there was evidence that Mr Byrne was targeted as a result of intelligence assembled by an employee of another of his client companies with whom these offenders were in contact." It was submitted that Tsegay was not involved in the planning but his Honour rejected that submission, although finding it difficult to assess the actual level of his involvement in the planning and organisation stage. 12 Harrison J has provided an account of the subjective circumstances of each respondent. Although they each had a strong subjective case, in my opinion the seriousness of their crimes required some form of custodial sentence, at least a term of periodic detention. This was not a crime committed out of impulse or when a chance opportunity was presented. It was the subject of significant pre planning, a stolen motor vehicle was acquired, and intelligence was obtained which enabled the respondents to plan the point at which they would confront the victim and rob him. To my mind it is of little significance that the violence occurred when the victim sought to restrain Tortell. His reaction was entirely to be expected. Although, of course, this was unlikely to have occurred, Tortell could have decided to accept his apprehension. The objective circumstances are greater because the sum involved was considerable. This was not a robbery where a wallet or purse was targeted which may have given a return in the hundreds of dollars. This was a calculated attempt to obtain a large sum of money. 13 The sentencing judge referred to the guideline judgment in R v Henry (1999) 46 NSWLR 346. That decision was concerned with s 97 of the Crimes Act and in particular with a robbery by a person armed with a weapon. A person who, armed with an offensive weapon or in company with another, robs a person is liable to penal servitude for 20 years. The maximum penalty is increased to 25 years if the weapon is a dangerous weapon. 14 Because Henry considers the circumstance where a weapon was used it must be approached with caution if it is considered when sentencing for an offence contrary to s 95. Nevertheless, many of the characteristics considered in Henry leading to the indication in that case that the appropriate range of penalty was a sentence of 4 to 5 years prison are common to offences contrary to s 95. The guideline judgment considered a young offender with little or no criminal history, a limited degree of planning, a real threat of violence and a victim in a vulnerable position with a small amount of money taken. The court also had in mind a plea of guilty, the significance of which is limited by a strong Crown case and the presence of a weapon being a knife capable of killing or inflicting serious injury. 15 The present respondents are both young people with no relevant criminal record. Their offence was carefully planned and involved the robbing of a person whose occupation required him to carry sums of money on behalf of clients to a bank. The amount taken was not small. Although no weapon was involved the offence was accompanied with violence. They pleaded guilty in the face of a strong Crown case. Furthermore, when sentencing his Honour was required to impose a sentence which gave proper regard to the matters on the Form 1: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. 16 In these circumstances only the most extraordinary personal circumstances could have justified a community service order. It is true that the respondent Tortell has particular difficulties arising from when he was struck by a motor vehicle accident. However, those difficulties are not such that he was not aware that he was involving himself in serious criminal activity which if he was apprehended would almost inevitably involve him in a term of imprisonment. 17 Reference to the statistics kept by the Judicial Commission indicate that very few offenders receive a sentence other than some form of imprisonment for an offence against s 95. For all offenders, a total of 330, 80 per cent have received a term of fulltime imprisonment, 4 per cent periodic detention and 12 per cent a suspended sentence. Only 1 per cent have received a community service order. When the statistics are examined in relation to offenders aged between 18 and 20 years without prior offences who have pleaded guilty and with a Form 1 matter the sample is confined to 8 cases. In only one of those cases was a community service order imposed. Six of them resulted in a period of fulltime imprisonment and the other case a sentence of periodic detention. 18 Before the sentencing judge, as Harrison J noted, counsel for the Crown discussed whether, instead of a full time custodial sentence, a sentence served by way of periodic detention would be appropriate. In my view this was the appropriate approach for his Honour to have taken in the present case. 19 Although I am satisfied that error has occurred I agree with Harrison J that this is a case in which it is appropriate for this Court to exercise its discretion not to intervene Harrison J has referred to the judgments of Heydon JA in R v Hernando (2002) 136 A Crim R 451 and Street CJ in R v Holder [1983] 3 NSWLR 245. 20 In the present case I am satisfied that both respondents have responded positively to their obligations to undertake community service. To interrupt that regime and provide for a period of custody, even if served by way of periodic detention, would be to inflict an excessive hardship upon them. I am satisfied that they have demonstrated considerable prospects of effective rehabilitation which might be seriously interrupted if the sentence was now increased. Although they will receive less punishment than in my view was appropriate I agree that in the exercise of the court's residual discretion the appeal should be dismissed.

21 ADAMS J: I agree with Harrison J. 22 HARRISON J: Disposition of this appeal requires consideration of whether or not the imposition of sentences of 300 hours of community service for offences of aggravated robbery contrary to s 95 of the Crimes Act 1900 amounts to appellable error in the sentencing judge's discretionary decision and if it does, whether there are any reasons why the residual discretion of this Court not to interfere should be exercised. Introduction 23 The respondents appeared for sentence before his Honour Bennett DCJ in the District Court at Parramatta on 28 March 2007 and adhered to pleas of guilty entered in the Local Court at Burwood. The circumstances of aggravation were the use of corporal violence upon the victim. Both respondents asked that a further offence of knowingly being carried in a stolen conveyance contrary to s 154A(1)(b) of the Act be taken into account on a Form 1. 24 The maximum penalty for the offence of aggravated robbery is imprisonment for 20 years. The maximum penalty for the offence on the Form 1 is imprisonment for 5 years. There is no standard non-parole period specified for either offence for the purposes of Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999. The respondents were each sentenced to perform 300 hours of community service. Background 25 The robbery occurred during the early afternoon of Tuesday 8 August 2006 when the victim was walking from his car to a branch of the Westpac Bank at Newington. He was carrying a backpack containing cash and cheques to the value of $51,482.19 that he had collected in the course of his duties from a client on whose behalf he was to deposit the funds into an account at the bank. The victim was a self-employed private mail contractor who provided a banking service for clients. The police investigation revealed that prior to the robbery a number of phone calls had been placed from a client of the victim to each of the respondents. Both respondents knew an employee of that client. 26 As the victim approached the bank, Mr Tortell attempted to take the backpack from him. Mr Tsegay was nearby. A struggle took place. The victim resisted and took hold of Mr Tortell. Mr Tsegay made off with the bag containing the cash and cheques. A passer-by ran after Mr Tsegay who, with a third offender, went to a car that had been stolen from outside premises at Kensington that afternoon. They entered that car and the passer-by took hold of the bag and attempted unsuccessfully to retrieve it from Mr Tsegay's grasp through the window. The vehicle drove off. 27 In the course of the struggle between Mr Tortell and the victim, Mr Tortell was struck on his mouth, causing it to bleed. He was held until the police arrived when he was taken into custody. Mr Tsegay and the other offender were arrested later after a police investigation. Mr Tortell 28 Mr Tortell took part in an ERISP interview that afternoon. He was asked a series of questions regarding the circumstances of the robbery but made no admissions other than to acknowledge that he was in Newington at the time. He would not identify the friend with whom he claimed to be at Newington. He was asked about a person of African appearance who was ultimately shown to be Mr Tsegay but he denied the presence of any such person. He admitted the struggle in the course of which he was detained, and that he was struck in the mouth causing it to bleed, but maintained that he did not remember how the blow occurred. He gave no further information to implicate himself or any one else in the offence. He denied making an attempt to grab the backpack from the victim. 29 Mr Tortell was born on 11 March 1987 and had no prior convictions. He was 19 at the time of the offence. According to the presentence report he is the elder of two brothers and appears to have had a satisfactory upbringing despite the separation of his parents. He was raised by his mother with regular contact with his father. He was living with his mother at the time of the offence but commenced living with an uncle in August 2006 until he moved to live with his father and grandfather in January 2007. There was no reported history of misconduct until the age of 17 when he began to demonstrate anger and a tendency to frustration. It appears that in approximately January 2006 he was struck by a motor vehicle from which time his personality began to change. 30 He left school at the age of 15 with a School Certificate and is now a qualified motor mechanic. He is well thought of by his employer who was surprised at the arrest. He considered the conduct to be out of character. Mr Tortell told the author of the presentence report that the offences were not his idea but that he went along with the others. He said he had been using ecstasy since the age of 17 and cocaine since he was 18. His last use of illicit drugs was in about mid-2006. He had some financial difficulties as a consequence of a claim against him for $4000 brought by the owner of the vehicle that struck him. The basis of the claim appears to be that he was intoxicated at the time of the collision. 31 A presentence report referred to the possibility of Mr Tortell having suffered frontal lobe damage causing recent anger and frustration problems that on occasions had led to blackouts. Mr Tortell was assessed as unlikely to benefit from supervision or intervention by the Probation and Parole Service and to have a low risk of reoffending. He was assessed as suitable for community service and was eligible and suitable for periodic detention. 32 Mr Tortell was assessed by a psychiatrist. He spoke about his motor vehicle accident. He suffered grazing to his forehead and face, rib fractures or bruising and a fracture of his scapula. Since the accident he experiences occasional sharp pain to the frontal area of his head. He feels stress with little provocation. He is easily frustrated to the point of aggression. He described paranoia, overreaction in social situations that sometimes lead to flights, and restlessness. He has become forgetful and tends to prefer his own company. He reported having visited a psychiatrist on five occasions for consultations to deal with these patterns of behaviour. He also gave a more extensive history of alcohol and drug use including cannabis and amphetamines. An MRI scan confirmed evidence of brain injury to the frontal lobes bilaterally secondary to the head injury suffered by Mr Tortell in the collision. A neurologist's report suggested that the injury would explain some of the changes of personality and outbursts of anger that have been observed. 33 According to the psychiatrist, the frontal brain injury is highly likely to have affected Mr Tortell's thinking and behaviour at the time of the commission of the offence, causing him to be swayed by others. It is probable that Mr Tortell had a diagnosable mental health disorder following his accident leading to neuropsychological impairment. This is likely to have had the effect that Mr Tortell was unable to make a proper appraisal of his actions within a proper ethical framework or to make a balanced decision about whether or not to commit the offence in question. 34 The psychiatrist's report concluded as follows: - "Mr Tortell is a young [man] totally naive to prison life. [He] will be relatively defenceless in that environment and would be placed at risk for potential physical and sexual abuse.

Further, as a consequence of his neuro-psychological impairment, [he] will be at risk of being led into future antisocial behaviour inappropriately by persons more persuasive than himself." 35 It was submitted on behalf of Mr Tortell in the court below that such violence as occurred during the commission of the robbery was a response to the actions of the victim and no more. The original intention had been to grab the backpack without any additional physical violence. This intention was frustrated in the course of the victim's vigorous response. It was argued, in these circumstances, that although the robbery was associated with a level of corporal violence it should have been viewed as at the lower end of the range of objective seriousness akin to robbery simpliciter or stealing from a person. The Crown did not dissent from this proposition before his Honour. 36 His Honour accepted the submission that there was a relationship between Mr Tortell's mental health issues and his moral culpability. In the circumstances, that culpability was reduced significantly and did not call for the level of denunciation or punishment that might otherwise be required: R v Hemsley [2004] NSWCCA 228. Mr Tsegay 37 Mr Tsegay was arrested on 1 September 2006 following identification by the victim from a series of photographs. He took part in an ERISP interview. He admitted his involvement and the extent of his participation in the robbery. He told police that the robbery had been planned on the previous Saturday night in discussions between the three offenders and others, two of whom were employees of one of the victim's clients. Mr Tsegay said that the bag containing the cash and cheques was taken from the stolen car when it was left in Glebe. He said his involvement in the robbery was related to his athleticism and the speed with which he would be able to run once the bag had been taken from the victim. 38 Mr Tsegay was born on 30 September 1987 and was nearly 19 at the time of the offence. He had no prior convictions. He had a challenging upbringing although had been given significant opportunities since his arrival in Australia. He lives with his mother and two younger brothers. They migrated from the Sudan to New Zealand as refugees from religious persecution in 1994 and were joined by Mr Tsegay's father in 1997. That marriage was confronted by certain difficulties. Without telling Mr Tsegay's father, his mother brought her children to Australia in June 1999, adopting Australian citizenship in 2003. Mr Tsegay's father continues to live in New Zealand. Mr Tsegay has negative feelings towards him. Mr Tsegay's mother has suffered with depression and there was a period when her children were fostered while she was treated. 39 Mr Tsegay obtained his Higher School Certificate although his results were not entirely satisfactory. However, when he came to Australia he had no English and had been required to adjust to a new culture whilst attending school and learning the language. His Honour observed that, in these circumstances, Mr Tsegay's level of academic achievement is unsurprising. In 2006 he commenced a two-year diploma course in Marketing and Business Advertisement at Sydney TAFE. He had been in receipt of Social Security payments since early 2006. 40 Mr Tsegay has also derived some income from coaching basketball, for which it appears he has some talent, and from other casual employment. Up until the time of his offending he had considerable prospects as a basketball player. He played at State representative level and has been the beneficiary of scholarships to assist him to advance in that sport. He has contributed to the community by coaching young players and performing voluntary work with the Police and Citizens Youth Club at Glebe. He had prospects of a sporting scholarship to a college in the United States but his conviction put an end to any such opportunity. 41 Mr Tsegay acknowledged his involvement in the offence consistently with what he told police. He was deeply remorseful and feared imprisonment but said that his focus was more upon the repercussions for his career plans as a basketball player. He attributed his involvement in this offence to a spur of the moment decision. He has written an apology to the victim. 42 A presentence report notes that he is held in exceptionally high regard by the members of his community and his offending is seen to be entirely out of character, and inconsistent, with his values and those of his family. He has been assessed as suitable for a low level of intervention by the Probation and Parole Service. He was assessed as suitable for Community Service and as eligible and suitable for periodic detention. 43 A psychologists report gave a detailed history of his life and an interpretation of psychometric testing. It provided an assessment of the impact of Mr Tsegay's upbringing upon his present circumstances. The report notes that he found school to be a challenge. He is of sound, basic, average intelligence. The psychologist did not consider that his judgment or insight had been as well developed as his basic intellectual skills. There was no evidence of any psychological or psychotic disorder. Mr Tsegay had a history of insomnia and nightmares with accompanying restlessness and this has increased since he was charged. These things would appear to have been a reaction to his predicament, including his anticipated punishment, his sense of guilt and the loss of his career goals. There would appear to have been some past experimentation with illicit drugs in the form of cannabis and ecstasy, and some excesses with alcohol, but these are not an issue at present. The psychologist pointed to anticipated difficulties that Mr Tsegay would have if required to serve a sentence of imprisonment in the adult prison system. 44 His Honour was clearly impressed with Mr Tsegay's contribution as the activities officer of the Glebe Police and Citizens Youth Club. His Honour referred to a reference that spoke glowingly about him. There was another reference in similar terms. Mr Tsegay has contributed to the community by coaching young people in basketball. He received a scholarship from Youth Off the Streets, an organisation run by Father Chris Riley. In 2005 Mr Tsegay received the Elaine McTaggart scholarship to pursue his basketball career. 45 His Honour indicated in his remarks on sentence that he was satisfied that the level of corporal violence for which each respondent was responsible should be viewed at the lowest level of seriousness. His Honour was satisfied that their intention was to grab the backpack and make off with it and that the violence that followed was the product of their persistence in the face of resistance offered by the victim. Crimes (Sentencing Procedure) Act 1999 46 In his comprehensive and thorough remarks on sentence, his Honour described in detail those matters that he considered to be aggravating and mitigating factors applicable to these cases. His Honour described those factors as follows: - "The loss suffered in this robbery must be seen as substantial in my view. In excess of $51,000 in cash and cheques that were stolen has [sic] not been recovered. I accept what has been said by the offender Tsegay and that these offenders received no benefit from the crime, but it remains that the loss was sustained, s 21A(2)(g).

The offence was planned and there was evidence that [the victim] was targeted as a result of intelligence assembled by the employee of another of his client companies with whom these offenders were in contact. It is submitted on behalf of Tsegay that he was not involved in the planning. I am not prepared to find that he was not involved in the planning, but it is difficult to assess the level of his involvement in the planning and organisation stage, other than to say that he had some part to play in it, albeit a relatively passive one: s 21A(2)(m).

Turning now to the factors in mitigation:

Neither offender has prior convictions in this State and Tortell has one for a minor instance of criminality elsewhere, which he brought to attention: s 21A(3)(e).

I find that both offenders may be seen to be persons of good character: s 21A(3)(f). I find that both offenders are unlikely to reoffend: s 21A(3)(g). I find that both offenders have good prospects of rehabilitation, and, indeed, it may be said that their rehabilitation is well advanced: s 21A(3)(h). Both offenders have shown remorse, which I accept as genuine: s 21A(3)(i).

It is set on behalf of the offender Tsegay that the appropriate finding is that because of his age and psychological issues identified he was not fully aware of the consequences of his actions: s 21A(3)(j). I do not believe that this finding is appropriate.

Both offenders have pleaded guilty at the first opportunity and are entitled to maximum discount available. Additionally the offender Tsegay has provided significant assistance to the police and readily admitted his involvement in the offence from the first moment of his detention: ss21A (3)(k), 21A(3)(m) and 22.

I have also taken into account the effect of the frontal lobe injury to the offender Tortell and the extent to which that altered his personality and reduce the level of inhibition which otherwise might have discouraged him from participation of his offending.

With regard to the offender Tsegay I have also brought to account the impact upon him of the background summarised in the reports, specifically his migration from Eritrea to the Sudan and then to New Zealand before coming to Australia." 47 His Honour's remarks on sentence subsequently continued in the following relevant terms: - "These are young men, both of whom have no other record of offending, save in the case of the offender Tortell who has one relatively minor matter in another State, the existence of which he brought to attention. Rehabilitation is an important consideration in his sentencing exercise: Regina v Lattouf (Unreported 12 December 1996 NSWCCA). The rehabilitation of the offenders will contribute to the protection of the community: Regina v Blackman [2001] NSWCCA 121.

The combination of the evidence that both of these offenders have achieved substantial rehabilitation and both have some level of intellectual immaturity, and in the case of Tortell the added consideration of the brain injury to his frontal lobe is such as to require the court to give careful consideration to the question whether their cases fall within the description "most exceptional" such as to warrant a noncustodial sentence: Regina v Griggs [2000] 111 A Crim R 233.

I have also taken particular account of their relatively young age and the impact of fulltime custodial sentence will have upon them.

In the case of Tsegay there will also be some challenge, one would think, by reason of the cultural differences he will have to deal with, although overall this is likely to be of marginal significance when one considers his successful integration into the society of which he is a member in Glebe and the contribution he has made in youth activities in that area, to which I have earlier referred.

I have reviewed the guideline judgment in Regina v Henry (1999) 46 NSWLR 346. The facts are not entirely comparable. Both offenders are young and have no criminal history, but there was no weapon and although I am satisfied there was some level of planning in which they took part, their planning was particularly limited. There was actual violence, but as I have noted it was to some extent the product of [the victim's] response to the approach by Tortell. [The victim] was by reason of his position as an agent depositing banking on behalf of clients vulnerable. There was a significant amount of money taken and in my assessment the Crown case was strong, the product, if I might say so with respect, of an extensive and comprehensive investigation by the police officers involved.

One might take the view that the overall sentence of four to five years fulltime custody advanced in the guideline judgment ought to be applied, because the absence of some of the Henry characteristics are offset by the presence of others of greater significance. However, as was noted by his Honour the Chief Justice in that decision applicable aggravating or mitigating factors will justify a sentence above or below that range.

Having given careful consideration to this matter in each case I am of the view that there are exceptional circumstances here that will justify an option other than fulltime custody. I believe that in this case I have before me two young men who must be punished for their wrongdoing so that they may be made accountable for their action, and so that their conduct may be denounced, and to recognise the harm that has been done, but by way of a sentencing option that will provide adequately for general deterrence and specific deterrence and promote their rehabilitation, thereby to ensure the future protection of the community from what I believe to be an insignificant risk of further offending. I am concerned to ensure that the option I choose will not have the effect of placing these young men in circumstances where they might emerge with a tendency to engage upon a criminal career at some level that they might not otherwise have ever contemplated: Gadsden v Regina [2005] NSWCCA 453." 48 His Honour specifically referred to the Form 1 offence and to the fact that it had to be taken into account when sentencing the respondents for the principal offence. In this regard his Honour said: - "The additional offence should impinge upon the sentences for the principal offence in which it is to be taken into account requiring an appropriate increase in the sentence that would otherwise be applied to the principal offence standing alone, thereby to reflect the need for greater weight to be given to the aspect of personal deterrence arising from the extent of the offender's misconduct in each case and the community's entitlement for retribution for those offences." 49 Finally, his Honour reminded himself that he should not sentence an offender to imprisonment unless satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. His Honour concluded: - "Having considered carefully the objective seriousness of this offence, the participation of each of the offenders, and what must be described as the strong subjective case in respect of each of them, I am of the view that this is one of those exceptional cases in which a sentence other than one of fulltime custody is appropriate." Consideration 50 This is a Crown appeal pursuant to the provisions of s 5D of the Criminal Appeal Act 1912. The sole ground of appeal is that the sentences imposed by his Honour were manifestly inadequate. 51 The principles governing appeals by the Crown were summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42. His Honour said at par 70: - "[70] The Crown contends that not only was the sentence imposed inadequate on its face, but also that the sentencing judge made a number of errors of principle in determining that it was appropriate to proceed under s 19B of the Crimes Act 1914 . Before considering these submissions it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence:

(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle " for the governance and guidance of courts having the duty of sentencing convicted persons ": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 321, at paras 61 and 62, and Wong & Leung v The Queen at para 109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62."

52 In addition to these principles, I have had regard to the further restraint upon interference "given the strong resistance that exists against appellate 'tinkering' with sentences" identified in Dinsdale v The Queen (2000) 202 CLR 321 at par [62]. This modern reaffirmation of the special importance of the sentencing tribunal is undoubtedly traceable to a number of sources. They presumably include what was said by Sir Frederick Jordan in R v Geddes (1936) 36 SR (NSW) 554 at 556 as follows: - ". . . I think that a Court of Criminal Appeal should intervene if the sentence appears to it to be out of reasonable proportion to the circumstances of the crime, having regard to the facts proved in evidence at the trial, but before the Court is satisfied that such an absence of due proportion exists, it should make the fullest allowance for the consideration that the trial judge has had an advantage denied to it, namely, that he has seen the witnesses, and, therefore, that he has had an opportunity of forming impressions which no perusal of cold print can afford. Unless some error in principle, or some such unreasonable disproportion, appears, I think that a case is not made out for revision of the sentence." 53 Earlier in the same case his Honour made the following comments: - "The function of the criminal law being the protection of the community from crime, the judge should impose such punishment as, having regard to all the proved circumstances of the particular case, seems at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances, and to be likely to be a sufficient deterrent both to the prisoner and to others. When the facts are such as to incline the judge to leniency, the prisoner's record may be a strong factor in inducing him to act, or not to act, upon this inclination. Considerations as broad as these are, however, of little or no value in any given case. It is obviously a class of problem in solving which it is easier to see when a wrong principle has been applied than to lay down rules for solving particular cases, and in which the only golden rule is that there is no golden rule." 54 As I have said on other occasions, uncontroversially, the question of what is, and what is not, a proper sentence in any particular case is a matter upon which minds will invariably differ. For example, in R v Burns [2007] NSWCCA 228, I expressed the following opinion at par [36]: - "[36] There is often a fine line between those cases in which a sentencing judge can be shown to have failed properly to exercise a discretion reposed in her or him, having regard to the relevant legislative constraints and current judicial guidance, on the one hand, and those cases in which the discretion has patently been exercised in a way that balances and accommodates all the manifold competing circumstances and influences, on the other hand. Views on sentencing outcomes will almost always vary, depending significantly, although not exclusively, upon the perspective of the commentator. There seems little doubt that some appropriate sentence of full-time imprisonment imposed upon the present respondent could have withstood appellate scrutiny. However, for the purposes of this Court, that is not to the point. In my opinion the sentences imposed upon the respondent by his Honour were wholly appropriate. That is also not to the point. The issue is whether or not his Honour's sentencing discretion was relevantly infected by error in such a way that it resulted in the imposition of sentences that are manifestly inadequate. In my opinion, no relevant error has been demonstrated and the sentences imposed upon the respondent are not manifestly inadequate." 55 In the present case, there is no distinct - or even faint - error appearing on the face of his Honour's reasoning. The Crown quite properly makes no submission to the contrary. The sole ground of appeal is that the sentences imposed are manifestly inadequate: compare, for example, R v Baker [2000] NSWCCA 85 at [19] where the Chief Justice referred to "… that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred." 56 Having regard to principles such as those enunciated in Dinsdale and Geddes, and to the particularly detailed and thorough way in which his Honour approached the whole sentencing exercise, I do not consider that the sentences imposed by him were manifestly inadequate. In my opinion, this is particularly so having regard to the very strong subjective case of each respondent, outlined in his Honour's remarks on sentence to which I have referred. There is no doubt that the sentences are at the highest margin of leniency. The offences were objectively serious, they involved a degree of planning and the proceeds of the crime were never recovered. They involved a degree of violence as well. However, these are all matters that have been factored into the sentencing equation. In the end result, no error is demonstrated. 57 Even if I were wrong in that conclusion, and the view were available that the sentences are erroneously inadequate, I do not consider that this is a case in which this Court should intervene.

58 In R v Hernando (2002) 136 A Crim R 451, in the judgment of Heydon JA (as he then was), his Honour referred to the Court's discretion under s 5D of the Criminal Appeal Act 1912 to determine a Crown appeal without proceeding to re-sentencing even if error is shown and to the description of that discretion given by Street CJ in R v Holder [1983] 3 NSWLR 245 at 255 -256 as follows: - "An important element in determination of a Crown appeal is the exercise of the residual discretion to dismiss an appeal notwithstanding that error of one or other of the categories mentioned above may have been established by the Crown. This discretion is a real and live discretion. In practice, it is exercised not infrequently. It enables the court to keep an ultimate control by protecting a convicted person against unfairness or injustice if that would flow from an adverse appellate decision. It is in this ultimate discretionary field that considerations of what has been called double jeopardy are of particular relevance. Within this field, also, the court's understandable reluctance to detect manifest inadequacy may be given, so to speak, a second opportunity of operating in the convicted person's favour. I forbear from citing examples of the exercise of this discretion in favour of a convicted person lest in so doing they could be thought to have some controlling significance in a general sense. The discretion, where it is exercised, necessitates an immediate and highly subjective assessment of the circumstances of the case in hand." 59 A similar sentiment was expressed a short time later by King CJ in R v Hicks (1987) 45 SASR 270 at 273: - "… prosecution appeals fall to be decided on somewhat different considerations than appeals by persons under sentence. When a person such as the present respondent has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating. I do not think that any consideration of justice or the protection of the public demands that this particular respondent, after he has been told by a court that he will not have to go to prison, should now be told by this appellate court that he must serve the sentence." 60 Finally, in Everett v The Queen (1994) 181 CLR 295 at 305 Brennan, Deane, Dawson and Gaudron JJ expressed the matter thus: - " … the deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a court of criminal appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case. Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing judge's orders had been that each of the appellants had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation."

See also R v Kyroglou [1999] NSWCCA 106 and R v Horne [1999] NSWCCA 391. 61 Both respondents were sentenced in a manner that allowed them to remain in the community. Although the Crown's notice of appeal was filed in a timely way on 11 July 2007, each respondent has had to endure the prospect once again of being in jeopardy. It is submitted on behalf of the respondents that in those circumstances it would be particularly harsh to sentence them to imprisonment now, even if a custodial sentence had been one of the appropriate options available to the sentencing judge at first instance. 62 In this last respect it was submitted on behalf of the Crown before his Honour "that a custodial sentence [was] the appropriate sentence". In response to that submission his Honour asked the following question: -

"HIS HONOUR: Full-time custodial sentence - would you say that I was falling into appellable error to extend to them the opportunity to serve that by way of periodic detention?"

The Crown replied, "I would have to say your Honour that it's borderline". 63 When this matter came before this Court, each respondent was more than three months into his sentence. Mr Tsegay had served over 60 hours of community service; Mr Tortell had served something in the order of 20 hours. The prospect of being re-sentenced to a term of imprisonment must clearly have been extremely distressing for each respondent, particularly having regard to the special vulnerabilities of each to which his Honour referred. Each was described by his Honour as of a "relatively young age" and he took particular account of "the impact that a full-time custodial sentence [would] have upon them". In particular, neither respondent had served any form of detention in custody before. Mr Tortell had a diagnosed mental health condition. Mr Tsegay was likely to suffer from the impact of cultural differences. His Honour found that the respondents' rehabilitation was well advanced. 64 In my opinion, this is a case where the residual discretion of this Court not to interfere should be exercised. Orders 65 The appeal should be dismissed. *********

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