Hraiki v R

BATHURST CJ: I agree with Hamill J.

HAMILL J: Shadi Hraiki seeks leave to appeal against the sentence imposed in the District Court by his Honour Judge Norrish QC on 18 October 2018. The offences to which the applicant had pleaded guilty and the sentences imposed on him were set out in a helpful schedule included in the applicant's submissions:

In sentencing for count 10, the Judge also took into account some matters on a Form 1.

As will be seen, the primary Judge did not impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 (NSW), preferring the transparency of imposing individual sentences and making them partially concurrent and partially cumulative. By virtue of the partial accumulation, the total effective sentence was one of 2 years and 9 months with a total effective non-parole period of 1 year and 5 months.

In his original notice of appeal, the applicant relied on the following grounds:

At the hearing of the appeal, counsel for the applicant abandoned the second ground of appeal. Accordingly, the issue to be determined is a narrow one. It concerns whether this Court should interfere with the discretionary and evaluative judgment made by the sentencing Judge as to the extent of the discount to be afforded to the appellant for his assistance to the authorities. Because the ground is so limited and because the evidence upon which the ground is based concerns material that was tendered on a confidential basis, it is inappropriate to refer in great detail to the facts upon which the ground of appeal is based.

However, it is necessary to set out in summary form the facts of the offences for which the applicant stood to be sentenced. The facts tendered before the sentencing Judge, and his Honour's description of the offences in his judgment on sentence, were very long and need not be recounted for the purposes of this judgment. The respondent’s written submissions contained the following summary of the agreed statement of facts signed by the applicant and his solicitor. I have omitted the references:

The summary of the facts in the prosecution's submission provides an adequate description of the offences for which the applicant was to be sentenced. They were, obviously enough, serious offences of dishonesty. There is no suggestion that the starting points settled upon by the sentencing Judge were other than appropriate. In my assessment, the starting points adopted by the sentencing Judge were well within the range of an appropriate exercise of the sentencing discretion in the circumstances of the applicant's case. Those circumstances included material tendered on his behalf which set out his personal circumstances.

Judge Norrish QC described the applicant's subjective case in the following terms:

There is no suggestion on appeal that the sentencing Judge dealt with the applicant’s personal circumstances in otherwise than an appropriate and compassionate way. The only question litigated on the appeal concerned the extent of the discount provided for the applicant’s assistance to authorities.

His Honour accepted a submission made on the applicant's behalf that in spite of the plea of guilty being entered at the last minute, which is to say the date that the trial was due to commence, a discount of more than 10% should be set. His Honour took into account that some of the delay resulted from difficulties in negotiations seemingly caused by the prosecuting authority. In any event, his Honour decided on a 15% discount for the plea of guilty. No complaint is made as to that assessment or figure, nor could there be. In the circumstances some might consider it to be generous.

His Honour then went on to consider material that was subsequently placed in an envelope and sealed. That material concerned the assistance provided by the applicant to the authorities. Like the plea of guilty, this assistance was offered at a very late stage. Having considered that material, and having been persuaded to increase the extent of the discount by 2.5%, his Honour decided that a discount of 5% for past assistance and 5% for future assistance was appropriate.

Accordingly, the total discount from the sentence, encompassing both the plea of guilty and the assistance to authorities, was one of 25%. The thrust of the applicant's submission was that the discount of 5% for future assistance did not reflect the level of assistance provided.

Initially, his Honour considered that a discount of 2.5% was appropriate for future assistance. However, when his Honour was told that there was some chance, or a greater chance than had previously been indicated, that the applicant may be called to give evidence in future criminal proceedings, he determined that the discount should be increased to 5%.

I have considered the material provided to the sentencing Judge in relation to the extent of the assistance provided by the applicant. Guiding the determination to impose a lesser penalty for assistance are the matters referred to in s 23 of the Crimes (Sentencing Procedure) Act. Subsection 23(2) provides a list of matters that must be considered in determining the extent of the discount and it is clear from the remarks on sentence that his Honour complied with those requirements. There is no manifest error in his Honour's consideration of the matter. The documents provided by the police describing the applicant’s assistance indicated that most, if not all, of the information was already known by police and prosecuting authorities. It was also the case that the assistance was provided at a very late stage.

The determination of the appropriate discount was one involving an evaluative judgment and a discretionary determination. There is nothing in the remarks on sentence to suggest that his Honour fell into any error in making those assessments. It may be that another judge would have provided a slightly higher discount for future assistance, just as another judge may have provided a smaller discount for the plea of guilty. However, that does not mean that the assessment made by Judge Norrish QC was in any way legally flawed.

In my view, this ground of appeal must be rejected.

I would refuse the application for leave to appeal against the sentence.

N ADAMS J: I agree with Hamill J.