Fayad v R

1. [1]

   SIMPSON JA: I agree with N Adams J.

2. [2]

   BUTTON J: I agree with N Adams J.

3. [3]

   N ADAMS J:

Introduction

1. [4]

   Wassim Fayad is a 49-year-old man who seeks leave to appeal against the sentence imposed upon him by Woodburne SC DCJ in the District Court at Parramatta on 27 November 2015 for a “ram raid” offence contrary to s 113(2) of the Crimes Act 1900 (NSW). The applicant asked her Honour to take three further offences into account on Forms 1. The offence was committed whilst the applicant was on bail.

2. [5]

   The applicant was sentenced to a term of imprisonment of seven years to commence on 29 November 2013 and expire on 28 November 2020, with a non-parole period of four years and nine months to expire on 28 August 2018. An offence contrary to s 113(2) of the Crimes Act carries a maximum penalty of imprisonment for 14 years.

3. [6]

   The procedural history of these offences can be shortly stated. On 28 February 2013, the applicant (in the name of Fred Toufuc Alameddine) was convicted in the Local Court of offences of assault occasioning actual bodily harm in company contrary to s 59(2) of the Crimes Act and stealing from a dwelling house contrary to s 148 of the Crimes Act. That matter concerned the lashing 40 times with a cable of a man who had come to the applicant for guidance in adhering to his religious faith. The matter was adjourned for sentence on 24 June 2013.

4. [7]

   On 15 May 2013 (before the date of sentence and whilst subject to bail), the applicant and two co-offenders used two stolen vehicles to crash through the glass front doors of a shopping centre in the early hours of the morning in an attempt to dislodge and steal an Automatic Teller Machine (“ATM”) or ATMs. Such an offence is colloquially termed a “ram raid”. Although the attempt was unsuccessful, significant damage was caused. The applicant and his co-offenders fled the scene.

5. [8]

   On 14 June 2013, the applicant was sentenced in the Local Court to a term of imprisonment for the offences of assault occasioning actual bodily harm in company and stealing from a dwelling house. The applicant was released on appeal bail on 24 June 2013.

6. [9]

   During this period of bail, the applicant became aware that Osama Toffic had been involved in the shooting of Michael Rooke at the Arrows Nightclub in Rydalmere on 1 May 2013. Being so aware, he assisted Mr Toffic by taking steps to ensure that he was warned to leave the country because he was going to be arrested in relation to the shooting.

7. [10]

   On 29 November 2013, the applicant was arrested for the ram raid offence and also in relation to being an accessory after the fact to the shooting. He was refused bail and has been in custody since that date.

8. [11]

   On 14 February 2014, the applicant’s appeal against conviction for the Local Court offences was dismissed. His appeal against sentence was successful. In lieu of the sentence imposed in the Local Court, he was sentenced to imprisonment for two years, which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (“the CSP Act”). He was not released from custody at that time because he was still bail refused in relation to his other offences.

9. [12]

   On 26 February 2015, the applicant was committed for trial from the Local Court at Parramatta for the principal offence. On 31 August 2015, the applicant was arraigned on an indictment containing one count of aggravated (in company) break and enter with intent to commit a serious indictable offence (steal) contrary to s 113(2) of the Crimes Act in relation to the ram raid offence and a second count of doing an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act. The applicant pleaded guilty to the first count on the indictment and not guilty to the second offence. The applicant’s plea of guilty was accepted by the Crown in full satisfaction of the indictment.

10. [13]

    The applicant asked that further offences contained on two Forms 1 also be taken into account at sentence pursuant to s 33 of the CSP Act. Those offences were two counts of taking and driving a conveyance contrary to s 154A of the Crimes Act (using the two stolen vehicles to commit the ram raid) and one count of being an accessory after the fact to the shooting of Mr Rooke contrary to ss 98/350 of the Crimes Act.

The facts

1. [14]

   A nine-page document headed “Agreed Facts” was tendered as constituting the facts upon which the applicant was to be sentenced. That document included detailed facts of not only the principal offence but also the accessory matter on one of the Forms 1. The applicant’s counsel before this Court submitted that the agreed facts should not have been fully extracted by her Honour as they provided too much detail concerning the shooting of Mr Rooke. I propose to set out the agreed facts so that the applicant’s complaint in this regard can be fully understood:

The sentence proceedings

1. [15]

   In addition to the agreed facts document, the Crown tendered the following documents on sentence: a document headed “Crown Sentence Summary”; the applicant’s criminal and custodial histories; the remarks on sentence of Bennett SC DCJ in relation to the applicant’s conviction appeal to the District Court; documentation from NSW Corrective Services concerning the applicant’s segregated custody in the High Risk Management Programme (“HRMP”); and a statement outlining the damage done as a result of the ram raid. In addition, CCTV footage of the commission of the offence was played at the proceedings on sentence and relied upon by the Crown.

2. [16]

   Counsel for the applicant objected to paragraphs [15] – [22] of the agreed facts document, which state that the applicant made a false statutory declaration in the name of his son as to the identity of the driver of the Toyota Camry with registration BR40UX. That vehicle was captured by a speed camera as the applicant and his co-offender drove back to Auburn. The basis of the objection was that this material was irrelevant, in that it pertained to the count on the indictment to which the applicant had pleaded not guilty. Her Honour accepted that submission.

3. [17]

   The only evidence adduced in the defence case on sentence was an affidavit of the applicant sworn 13 November 2015. In it he deposed that he is being held in the High Risk Management Unit of Goulburn Correctional Centre (“HRMU”). He described suffering extreme distress, nausea and severe migraine headaches since being housed in the HRMU. He has six children whom he had not been able to see as at the date of his affidavit because they were not as yet approved as visitors by Corrective Services. He speaks to his family twice a week. He described not being able to afford the religiously appropriate meals provided at an extra cost in custody and thus his only source of meat is at the halal barbecue conducted in custody one day a week.

4. [18]

   The applicant’s counsel informed the court that he was not in a position to make a submission that there was any evidence of remorse in this matter. He indicated that the applicant’s subjective case would be run solely on the question of the applicant’s custodial circumstances. He focused his submissions upon the proper assessment of the objective seriousness of the offences, a table of cases said to be comparable, the applicant’s hardship in custody and the utilitarian value of the plea.

The reasons of the sentencing judge

1. [19]

   Her Honour outlined the procedural history of the matter and set out the agreed facts in full. She then went on to note that she could not take into account the facts that form the basis of the alleged offence under s 319 of the Crimes Act to which the applicant had pleaded not guilty. Her Honour proceeded to make an assessment of the objective seriousness of the principal offence. Her Honour found that there were five matters relevant to that assessment: that there was considerable planning involved; that the intent was to commit the serious indictable offence of larceny of a substantial amount of cash; that the circumstance of aggravation was that the offence was committed in company (which is less serious than some other aggravating factors); that the damage to the shopping centre and the ATMs was substantial; and that the offence was committed for financial gain. Overall she found that this was “a very serious instance” of an offence contrary to s 113(2).

2. [20]

   As for the accessory offence on the Form 1, her Honour found that the offence was less serious than some, but not at the lowest end of culpability. She noted that it is necessary to take into account the nature of the principal offence. Her Honour found that the offence contrary to s 98 was a serious one and thus that the applicant had knowingly assisted an attempt to elude justice for a very serious criminal offence.

3. [21]

   Her Honour allowed a 12.5% discount for the guilty plea. She then considered the applicant’s subjective circumstances. She noted that the applicant was born in November 1967 and was aged 45 at the time of the commission of the “ram raid” offence. She noted that his criminal history revealed early contact with the criminal justice system, but that the history was not extensive. She noted that the main significance of the criminal history was that the principal offence for which the applicant stood to be sentenced, as well as the matters on both Forms 1, were all committed while the offender was on bail. Her Honour noted that this was a matter relevant to the determination of sentence.

4. [22]

   It was noted that, beyond the conditions of the applicant’s imprisonment, there was little evidence before her Honour as to his personal history or circumstances. In those circumstances, her Honour found that there were “…no matters mitigating Mr Fayad’s criminal culpability for the offence committed by him.”

5. [23]

   Furthermore, it was noted that there was no evidence of remorse. Her Honour did not find that the applicant’s prospects of rehabilitation were good or that he was unlikely to reoffend.

6. [24]

   As for the applicant’s conditions of custody, her Honour noted that the evidence before her was that the applicant’s segregation was necessary for the security of, and good order and discipline within, a correctional centre. She found that it was reasonable to conclude that it was more likely than not that the applicant would continue to be housed in the HRMU. Accordingly, she accepted that the applicant’s conditions of custody would be harsher than might otherwise be the case and determined that it was appropriate to mitigate the sentence to some degree for that reason.

7. [25]

   Her Honour then referred to the purposes of sentencing and noted:

8. [26]

   Her Honour went on to consider five comparable cases involving “ram raid” offences upon which the applicant’s counsel at sentence relied. The schedule summarising those five cases is annexed to her Honour’s reasons. They are Johnson v R [2009] NSWCCA 204; McDonald v R [2011] NSWCCA 2; Forbes v R [2009] NSWCCA 292; R v DBN [2005] NSWCCA 435; and McGeown v R [2014] NSWCCA 314. Her Honour noted that three of those cases pertained to breaches of s 112(2) of the Crimes Act (namely, break, enter and commit serious indictable offence in circumstances of aggravation). The present offence is contrary to s 113(2) of the Crimes Act (break and enter with intent to commit serious indictable offence in circumstances of aggravation).

9. [27]

   Having referred to those cases, her Honour stated:

10. [28]

    Her Honour noted that there was no attempt on behalf of the applicant to make a submission that a finding of special circumstances should be made. Nonetheless, having determined to mitigate the sentence by reason of the applicant’s conditions of custody, her Honour made a finding of special circumstances and adjusted the statutory ratio to some limited extent in order not to impose a head sentence that failed adequately to mark the seriousness of the offending.

The proposed appeal

1. [29]

   The sole ground of appeal upon which the applicant relied in this application for leave to appeal is that the sentence imposed was manifestly excessive.

2. [30]

   Mr Scragg of counsel, who appeared on behalf of the applicant, submitted first that the applicant’s criminal history was not such that it would disentitle him to leniency. In support of this submission, he relied upon the reasons of Bennett DCJ allowing the applicant’s severity appeal in the unrelated assault and steal from dwelling house matters. In particular, he pointed to Bennett DCJ’s observations that the applicant was of a deep religious faith and had been acting in accordance with what he understood to be his responsibility at the time of those offences. It was also noted that that the complainant had consented to the first three of the 40 blows inflicted and had gone to the applicant looking for guidance and assistance.

3. [31]

   Complaint was then made that, despite the fact that her Honour stated that she would not take into account the facts pertaining to the count contrary to s 319 of the Crimes Act, she nonetheless set out those facts in her reasons. It was submitted that her Honour may not have adhered to her express self-direction. Mr Scragg did not rely upon this as a separate error, but submitted that it is indicative of some misapplication of principle that cannot be identified as any patent error.

4. [32]

   It was further submitted that the sentencing judge set out the facts for the Form 1 offence in considerable detail and that this too was indicative of error. It was submitted that the error was revealed in the ultimate sentence imposed.

5. [33]

   Mr Scragg submitted that a crushing sentence had been imposed on the applicant. He accepted that a sentence can be increased in order to take into account a Form 1 offence or offences. Nonetheless, it was submitted that the sentence imposed was unjust and does not promote the objectives of rehabilitation. Mr Scragg relied upon a number of cases by way of comparison, some of which were before the sentencing judge, and submitted that her Honour could not have had proper regard to those cases. In addition to the five cases to which her Honour referred, he also relied upon decisions of this Court concerning “ram raids” prosecuted contrary to s 112(2) of the Crimes Act. Those decisions were R v Ceissman [2004] NSWCCA 466; R v Leslie [2009] NSWCCA 203; and R v Reilly; R v Smith [2012] NSWCCA 166. He also relied upon the cases of R v Lenthall [2004] NSWCCA 248 and R v Guthrie [2002] NSWCCA 77, which concerned offences contrary to s 113(2) of the Crimes Act.

6. [34]

   Mr Scragg submitted that the applicant had led an “unblemished life”, but conceded that there was no material before the sentencing judge upon which such a finding could be made. It was also submitted that a finding of remorse should have been made because of the plea of guilty. However, Mr Scragg accepted that there was no evidence of remorse before the sentencing court.

7. [35]

   Finally Mr Scragg relied upon the statistics published by the Judicial Commission in its Judicial Information Research System (“JIRS”) in support of a submission that the applicant received the highest sentence imposed for an offence against s 113(2) of the Crimes Act.

8. [36]

   The Crown submitted that the decisions upon which the applicant relied can all be distinguished from the present case on their facts and their respective subjective features. It was noted that offences under s 113(2) cover a broad range of offending conduct.

9. [37]

   It was further submitted that, having regard to the multiple objectives of sentencing for offences of this kind, the absence of any strong subjective case, and the inclusion of the Form 1 matters, the head sentence of seven years with a non-parole period of four years and nine months imposed in this matter cannot be regarded as plainly unjust or unreasonable.

Consideration

1. [38]

   To succeed on a ground of manifest excess, the applicant must establish that the sentence is “unreasonable” or “plainly unjust”: Markarian v The Queen [2006] 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. Consideration of such a ground is undertaken in the context that there is no single correct sentence and that sentencing is not to be understood as a mathematical exercise. Accordingly, sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle. As Hayne J observed in AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, “…there will be a range of possible sentences that could be imposed without error.”

2. [39]

   In Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 19, the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) at [15] expressed the role of an appellate court dealing with a ground of manifest excess this in this way:

3. [40]

   The focus of the applicant’s submissions in seeking to establish that the sentence imposed on the applicant was unreasonable or plainly unjust was a detailed comparison of the sentence with that imposed in other “ram raid” decisions of this Court. In this regard it is pertinent to extract what the High Court observed in Barbaro v R; Zirilli v R (2014) 305 ALR 323; [2014] HCA 2 at [40]-[41], where French CJ, Hayne, Kiefel and Bell JJ stated (footnotes omitted):

4. [41]

   I have had regard to the five cases to which her Honour referred as well as the additional cases relied upon by the applicant at the hearing of this application. Only three of the cases involved offences contrary to s 113(2) of the Crimes Act (as opposed to s 112(1)). In R v Lenthall, a significantly lower sentence than the present sentence was imposed, but the offender received a 25% discount for his early plea, was found to be genuinely remorseful and had good prospects of rehabilitation. In R v DBN, the sentence of five years was described as “lenient” by Rothman J. In any event, the s 113(2) offence committed by DBN was part of a series of offences for which he was being dealt with and thus the principle of totality applied. R v Guthrie was a Crown appeal in 2002 (prior to the enactment of s 68A of the Crimes (Appeal and Review) Act) 2001 (NSW)) where the appeal was allowed and a sentence of six and half years imposed.

5. [42]

   The submission advanced on behalf of the applicant was that, even having regard to the sentences imposed for the more serious offence under s 112(2) of the Crimes Act (which carries a maximum penalty of imprisonment for 20 years and a standard non-parole period of five years), the sentence imposed on the applicant was excessive. Implicit in this submission is a contention that the sentencing judge placed undue weight on the s 112(2) decisions rather than the s 113(2) decisions, and thus erred. The difficulty with this contention is that her Honour’s reasons show that she expressly identified that some of the cases upon which the applicant relied involved convictions for offences contrary to s 112(2) of the Crimes Act. There is nothing in her Honour’s reasons to suggest that she did not make the distinction between the respective decisions. Although it is to be accepted that the sentence imposed upon the applicant is towards the higher end of the sentences imposed in the s 112(2) cases upon which the applicant relied, this submission is ultimately no more than a submission that the sentence is too high.

6. [43]

   The sentencing judge paid close regard to the decisions in other cases and annexed the schedule of the relevant cases to her final reasons. Her Honour clearly had regard to the relevant principles in those cases. “Ram raid” offences are particularly serious property offences because of the potential both for property damage and the theft of large sums of money. The sentencing judge quoted in her reasons from the decision in Reilly v R; Smith v R, where Price J (with whom Basten JA and Campbell J agreed) observed at [37]:

7. [44]

   Her Honour also extracted the observations of Fullerton J in McGeown v R (with whom Leeming JA agreed, Adams J dissenting) at [55]:

8. [45]

   Having had regard to the other decisions concerning “ram raid” cases, her Honour noted that the appropriate sentence in any given sentencing exercise is not to be determined by the objective of seeking mathematical equivalence with other cases.

9. [46]

   In order for this appeal to be upheld, the applicant must establish that, having regard to all of the features of his case, both objective and subjective and aggravating and mitigating, the sentence is unreasonable or plainly unjust. When regard is had to those matters the following emerges.

10. [47]

    The applicant was sentenced to seven years’ imprisonment in circumstances where the maximum penalty was imprisonment for 14 years. The offence included a degree of planning that her Honour found to be considerable. The amount of cash in the two ATMs that the applicant sought to remove was in the vicinity of $260,000, although no money was actually taken. There were three offenders involved in circumstances where the aggravating element was that the offence was committed in company. The offence caused damage in the amount of approximately $75,000, which her Honour described as “substantial”. The offence was committed for financial gain. No other explanation was advanced on behalf of the applicant.

11. [48]

    There were three separate offences to be taken into account on two separate Forms 1 in this matter. Although I accept that the offence of taking and driving a conveyance is often associated with offences of this nature, the accessorial offence was a further serious matter unrelated to the index offence. It is well established that a sentence can be increased to take into account matters on a Form 1: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115. The seriousness of a Form 1 offence is pertinent to the extent to which a sentence would be increased to take the offence into account.

12. [49]

    The principal offence was committed whilst the applicant was on bail. The Form 1 accessory matter was also committed whilst the applicant was on appeal bail. It was appropriate to have regard to this an aggravating factor.

13. [50]

    The applicant pleaded guilty at a relatively late stage of the proceedings. He was afforded a discount of 12.5%. Many of the other cases upon which the applicant relied involved pleas at an earlier stage of the proceedings.

14. [51]

    The applicant could not rely upon his previous good character. The applicant has a criminal history, but until recently it was not significant. He had a conviction for a stealing offence and a break, enter and steal in the Children’s Court and a conviction for offensive behaviour in 1987. He then had nothing on his criminal record until 2001, when he was fined for driving whilst disqualified from holding a licence. There were no further convictions until he committed the assault occasioning actual bodily harm in company offence in 2011, the facts of which were before the sentencing judge in the form of the remarks on sentence of Bennett DCJ.

15. [52]

    Mr Scragg invited the Court to have regard to the matters to which Bennett DCJ referred in his reasons allowing the applicant’s severity appeal. It is to be noted that her Honour did not refer to the facts of those offences at all in her reasons. Her Honour considered that the only significance of those offences was that the applicant was on bail for them when he committed the present offence and on appeal bail in relation to them when he committed the Form 1 offence. Bennett DCJ imposed a suspended sentence on the applicant for those offences. To the extent that it was suggested on behalf of the applicant that her Honour somehow placed too much weight on those matters, such a submission is not borne out in her Honour’s reasons.

16. [53]

    Although the applicant’s criminal history was not significant, the applicant – a middle-aged man – involved himself in a course of serious offending behaviour over a relatively short period of time. There is nothing disclosed in her Honour’s reasons to suggest that she placed too much weight on the applicant’s criminal record, nor was the applicant entitled to any leniency based on it.

17. [54]

    Significantly, there was no material put before the Court to assist her Honour as to whether the sentence could be mitigated in any way beyond the fact that the applicant had pleaded guilty and was serving his sentence in the HRMU. This is an unusual feature of the case and one that is of some relevance in circumstances where the applicant seeks to rely upon comparisons of this case with other decisions of this Court. In none of the other cases upon which the applicant relied was there such a paucity of mitigating material as in the present case. In some of them a great deal of subjective material was before the Court. It is well established that a sentence can be mitigated by evidence of, by way of example, mental illness, a disadvantaged childhood, remorse, good prospects of rehabilitation, charitable works, extreme hardship to families, provocation, duress, an offer of assistance, or an offer to make reparation to the victim.

18. [55]

    No material of this nature was put before the sentencing judge by experienced counsel appearing for the applicant. It was not suggested by counsel on the appeal (who was not counsel who appeared for the applicant at first instance) that the decision not to do so was for any reason other than the applicant’s instructions. In circumstances where her Honour found that the offence was “very serious” and that there was no basis to mitigate the sentence any further, a stern sentence was the inevitable result.

19. [56]

    It is of further significance that the applicant is not a young man, having regard to the fact that offences of this nature are usually committed by young men. The ages of the offenders in the cases upon which the applicant relied at the time of the offence (where the age appears in the judgment) were 24 (Mr Leslie), 19 (Mr Johnson), 24 (Mr Reilly), 22 (Mr Smith), 29 (Mr Forbes), 26 (DBN), and 27 (Mr Guthrie). Only Mr Ceissman at 31 and Mr McGeown at 36 could not be described as young, albeit that they were both considerably younger than the applicant. As her Honour pointed out, she was not able to sentence the offender on the basis that he was a “young offender who has both accepted responsibility for his conduct and who is remorseful and who has reasonable prospects of rehabilitation”. Her Honour could not find that the applicant’s prospects of rehabilitation were good.

20. [57]

    The only mitigating feature upon which her Honour was in a position to rely was the circumstances of the applicant’s custody. The evidence before her Honour was that the applicant was placed in segregation not for his own safety but because his actions in custody whilst in the general prison population were having a negative impact on the safety and security of the correctional centre. The basis for this was not put before the sentencing judge in any detail; it was simply stated that, whilst in custody, the applicant had been “actively recruiting inmates to Islam” and was a “proponent of the implementation of Sharia law”. Although it was open to her Honour to take his conditions of custody into account “to some degree”, as her Honour did, they did not warrant any significant amelioration given that they are a result of his own actions.

21. [58]

    I have had regard to the applicant’s complaint that her Honour’s recitation of the facts pertaining to the Form 1 accessory offence contained too much detail of the principal offence (the shooting). Her Honour simply set out the agreed facts, which were before her in their entirety. This is a common practice in sentencing proceedings. It is difficult to see how any complaint can be made to the effect that her Honour recounted the facts upon which the sentence was to be based in the form that it was agreed that they should be before her for the purpose of sentencing the applicant.

22. [59]

    Finally, in concluding that the sentence imposed was not unreasonable or plainly unjust, I have had particular regard to the sentencing statistics published by the Judicial Commission. They show that, of the 137 cases between January 2009 and December 2015 in which offenders received a custodial sentence for an offence contrary to s 113(2) of the Crimes Act, only three offenders (including the applicant) received a head sentence as high as seven years. That is, the applicant’s sentence is at the top of the current “range” of sentences reflected in those statistics. It is pertinent in this regard to note the observations of Simpson J (as her Honour then was) in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303] – [305]:

23. [60]

    These comments were endorsed by the High Court in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54].

24. [61]

    The statistics do not reflect the relevant objective and subjective features in each case. Significantly, they do not record how many of the other offenders committed serious “ram raid” offences whilst on conditional liberty, asked that other matters be taken into account at the time of sentence, and then placed virtually no subjective material before the sentencing court.

25. [62]

    The sentence imposed is high, but in the circumstances of this case I am not persuaded that it is unreasonable or plainly unjust. I would grant the applicant leave to appeal but would dismiss the appeal.