Aboud v R

Court of Criminal Appeal (NSW)|2017-06-16|Before: Macfarlan JA, Johnson J, Harrison J, MacFarlan JA

Judgment

MACFARLAN JA: I agree with Harrison J.
JOHNSON J: I agree with Harrison J.
HARRISON J: Michael Aboud seeks leave to appeal against the severity of a sentence imposed upon him in the District Court of New South Wales at Lismore by her Honour Wells DCJ on 29 July 2016. Mr Aboud had pleaded guilty to a series of offences contrary to s 474.17(1), s 474.26(1) or s 474.27(1) of the Criminal Code (Cth) of either using a carriage service to menace, harass or offend or doing so to procure or groom a child under the age of 16 years for sex. All offences were alleged to have been committed between 2 January 2011 and 18 July 2011. Her Honour sentenced Mr Aboud to an overall effective sentence of 7 years with a non-parole period of 5 years and 3 months commencing on 24 June 2016.
Mr Aboud relies upon three grounds of appeal, namely: 1. Her Honour erred in her approach to the delay in prosecuting him. 2. Her Honour erred in her approach to setting the non-parole period. 3. Her Honour failed to take into account the degree to which Mr Aboud co-operated with law enforcement agencies in the investigation of the offences, in particular by supplying his passwords and account details for two false Facebook accounts and giving his consent for police to access those accounts.

Background

The facts of the offences were not in dispute and were set out in a statement of agreed facts. In summary, Mr Aboud set up two Facebook accounts in false names and between January and July 2011 he used these accounts to contact eight girls aged between 13 and 15 years. Mr Aboud engaged in offensive and sexually explicit communications with these girls, which was predominantly one-sided and unwanted. The conduct ranged from inappropriate commentary upon photographs that the girls had posted on their own Facebook accounts to manipulative and threatening behaviour, including offering money for sex. In one case, Mr Aboud obtained naked photographs of one of the girls. On some occasions Mr Aboud obtained a girl's home telephone number and/or her address and threatened to reveal the girl's internet activity to her parents.
The most serious offences were sequences 17 and 21, where photographs were obtained from the girls. The other victims largely ignored Mr Aboud, fobbed him off or threatened to call the police. Her Honour summarised and discussed the facts in her remarks on sentence. Mr Aboud makes no complaint about her Honour's summary or her categorisation of the offences.

Subjective features

Mr Aboud pleaded guilty when the matter was still in the Local Court. Her Honour accepted that his pleas were both early and that they should attract a discount. Her Honour took Mr Aboud's pleas into account as expressions of remorse but did not specifically quantify the discount that she applied. He makes no complaint about that but accepts that the discount must necessarily have been significant.
Mr Aboud had no prior convictions of any kind. He had not offended since his arrest in July 2011. Mr Aboud was employed at all material times. He was aged 46 years at the time of the offending and was aged 51 years when he was sentenced. He is now 52.
Mr Aboud is married with one child. He has a good employment history and a long term involvement with a surf lifesaving club. He does not come from a deprived or disadvantaged background. He has had no difficulties with alcohol or illicit drugs. He has no history of previous sexual misconduct.
Her Honour found that Mr Aboud was remorseful and that he was a person of otherwise good character who had led an exemplary life until the commission of these offences.

Ground 1

Mr Aboud was arrested and interviewed on 25 July 2011, or what was very shortly after the commission of the last of the offences. He co-operated with the police, giving them access to his Facebook accounts. He made admissions when interviewed. Police executed a warrant at Mr Aboud's home the following day while he remained in custody. A number of exhibits were seized. Mr Aboud was released pending further investigation.
Somewhat extraordinarily, the police made no contact with Mr Aboud from that time until his re-arrest on 8 March 2015, or what was almost 4 years later. That delay was explained to her Honour at the sentencing hearing, and involved, or was caused by, a number of police officers connected with the investigation sequentially passing responsibility for the matter to others. This was described by the Crown as "a series of unfortunate events". No part of the delay between Mr Aboud's original arrest in July 2011 and his sentencing in July 2016 was caused by anything done or not done by Mr Aboud or anyone acting on his behalf.
Her Honour described the delay in her sentencing remarks in the following terms: "There has been a substantial and really inexcusable delay from the time that the investigators were first aware of these offences in 2011 until [Mr Aboud] was finally charged and brought to court. None of that was his fault and that is a matter that will be taken into account in his favour, in particular in that it showed he has good prospects of rehabilitation because he has not reoffended in any way since then."
Mr Aboud submitted that her Honour's remarks misstate the nature of the delay, which was not simply between the investigators becoming aware of the offences and Mr Aboud being charged. He contended that the real and significant delay was between his original arrest and interview, the contemporaneous seizing of exhibits from his home and his later re-arrest and charging in 2015. For my part I do not consider that her Honour misstated or misunderstood the nature or extent of the delay as Mr Aboud suggests. It was a clear and important fact in the sentencing proceedings that Mr Aboud had been waiting to be dealt with for 5 years when the matter finally came before her Honour for sentence. It cannot in my view be suggested that her Honour was not entirely across that important circumstance in this case.
What is more to the point is whether or not Mr Aboud was during that time left in a state of what has been called "uncertain suspense". That expression originally derives from the remarks of Street CJ in R v Todd [1982] 2 NSWLR 517 at 519F and referred to by Bellew J in Sabra v R [2015] NSWCCA 38 at [45] as follows: "Delay which is not attributable to an offender may be relevant on sentence at a number of different levels. Ordinarily, such delay will be a mitigating factor if (as in the present case) it has resulted in significant stress to the offender, or has left him or her, to a significant degree, in a state of uncertain suspense. Where there is evidence that delay has led to consequences being visited upon an offender which are adverse to his or her circumstances and which are over and above stress and anxiety, be those consequences in the nature of interrupted rehabilitation or otherwise, then the weight to be given to such delay in the sentencing process will obviously be greater. But that is not to say that an offender must be able to establish consequences of that kind before delay can become relevant at all. To so conclude would be contrary to the weight of previous authority in this Court."
Mr Aboud submitted in this Court that, in the context of a considered sentencing judgment delivered after an adjournment, her Honour's failure to refer to the state of uncertain suspense in which Mr Aboud must have been left, was indicative of a failure to take the matter into account. Indeed, this was a matter about which Mr Aboud's barrister made emphatic submissions, contending that Mr Aboud had been suffering "ongoing stress and anxiety" having "these charges hanging over his head for nearly four years waiting to be charged".
Mr Aboud did not give evidence in the sentencing proceedings. The Crown contended that if Mr Aboud was in fact in a state of uncertain suspense, it was incumbent upon him to establish it. The Crown specifically contended that there was "no actual evidence of the effect of delay on [Mr Aboud] in relation to a state of uncertain suspense" and that "submissions from the bar table were not evidence".
It seems to me that the Crown's submission is to some extent at odds with the fact that it is not necessary, before delay can become relevant, for a particular offender to establish the detrimental consequences of the delay for which he or she contends. However, in the present case the delay was so obvious and so egregious that her Honour must have been well seised of its existence and its significance. Her Honour's characterisation of the delay as "substantial and really inexcusable" hardly permits of any other conclusion.
More to the point is the Crown's submission that Mr Aboud has failed to identify how her Honour's findings in relation to delay were deficient. To similar effect, the Crown contends that Mr Aboud has not identified precisely what her Honour should have specified in her remarks on sentence so as to have made clear that delay had been properly taken into account.
Mr Aboud's contentions concerning delay necessarily distil to the proposition that her Honour failed to give adequate or sufficient weight to the fact of the delays evident in this case. That submission must be contrasted with a contention that her Honour failed in any way to take it into account at all. That submission is unavailable having regard to her Honour's remarks on sentence. The former submission is also unavailable in my view unless Mr Aboud can identify the nature of the error or errors that it is suggested her Honour has made. That is because such a submission depends upon the identification of the way in which her Honour's discretion is said to have miscarried. An attack of that kind is guided by well-known principles. In the present case, none of those principles has been identified by Mr Aboud. His submissions in support of this ground are no more than an attempt to infer that the length of the sentence that her Honour imposed necessarily reflects a failure properly or adequately to take account of delay. There is no sound basis to support any such inference. Indeed, it is difficult to think of anything else that her Honour could, or might, have referred to that would have made her views about the significance of delay in this case any clearer.
The first ground of appeal is without merit and should be dismissed.

Ground 2

Her Honour imposed a single non-parole period that was 75 percent of the total effective sentence. Her Honour gave no reasons for doing so. Mr Aboud complained that a non-parole period of that order represents a much higher than usual proportion and that it could be regarded as punitive. Mr Aboud also contended that such a proportion "was not open" to her in this case. Alternatively, Mr Aboud submitted that her Honour's decision to impose a non-parole period of that order, without explanation, reveals error.
Mr Aboud made detailed and helpful submissions on this point. It is convenient to record some of that detail in what follows.
There were said to be a number of factors that called for a much lower and less punitive non-parole period. They included: 1. Mr Aboud's co-operation with police from the time he was first spoken to. 2. The plea of guilty and remorse. 3. The absence of prior convictions. 4. Prior good character. 5. Good prospects of rehabilitation. 6. The substantial and unjustified delay.
In Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45, the High Court rejected the proposition that, in sentencing for Commonwealth offences, there is a "norm" for the proportion of a sentence which a non-parole period ought to comprise. For some years it had been generally accepted that the non-parole period in a Commonwealth sentence would normally be between 60 percent and 66 percent of the total sentence unless there were particular circumstances that justified diversion from this norm. However, the High Court did not say anything about whether a particular proportion could be considered as harsh or punitive.
Well before Hili, and apparently before the establishment of a norm for non-parole periods in Commonwealth matters, courts had considered a non-parole period of 75 percent of the total sentence to be punitive and at or towards the top of the appropriate range available to judges in sentencing.
This Court and the High Court had occasion to comment upon amendments to sentencing law in this State in the 1980s which introduced a 75 percent ratio for some, and later all, offences. In 1989, in Griffiths v R (1989) 167 CLR 372; [1989] HCA 39, Gaudron and McHugh JJ noted at 391, with approval, observations by this Court in that case: "They pointed out that, prior to the amendments, three quarters of a head sentence would have been regarded as a long non-parole period, at the top or close to the top of the range within which normal periods were ordinarily set. Their Honours said that, since Parliament must have been aware of this factor, the amending legislation was plainly intended to have a punitive effect."
These observations were clearly referring to State sentencing principles prior to the introduction of a statutory ratio, when the setting of the ratio was unfettered by legislation. Mr Aboud submitted that these observations could not have been affected in any way by the later development of the "norm" in Commonwealth sentencing which was eventually rejected in Hili.
The following year, Hunt J in R v Paull (1990) 20 NSWLR 427 at 435B, referred to the comments in Griffiths when considering the principles to be applied to the setting of a non-parole period for a Commonwealth offence.
In R v Acosta [1999] NSWCCA 334, another case involving Commonwealth sentencing, Kirby J (Meagher JA and James J agreeing) at [6] and [12] referred to Paull and an unreported case of R v Buhar (NSWCCA, 14 October 1998, unrep), in finding that a non-parole period of 75 percent was harsh and "should be reserved for the worst class of case". Mr Aboud conceded that, by the time Acosta was decided, the "norm" referred to in Hili appears to have been entrenched.
In Bick v R [2006] NSWCCA 408, Price J (Hodgson JA and Howie J agreeing) found that, in the circumstances of that case, a non-parole period, comprising 77.78 percent of the aggregate head sentence, was not excessive. However, his Honour accepted that this represented a "high proportion" and was a "high percentage". Price J noted the failure of the sentencing judge to provide reasons for such a high proportion but said that the failure to mention the matter, of itself, "is not conclusive of a failure to have regard to it".
In the following year there were two decisions that accepted the proposition that 75 percent was an unusually high proportion for a non-parole period in Commonwealth matters.
First, Howie J (Price J agreeing) in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [37], said that three quarters of the total sentence, the statutory ratio for State offences, was "an unusually high one for Commonwealth offences". Howie J went on to find that "it was not a case where, in applying the Commonwealth practice, a non-parole period of 75 percent of the head sentence could be justified".
Secondly, Price J (Howie and Adams JJ agreeing) in Ly v R [2007] NSWCCA 28 at [17] cited Acosta with approval and came to the conclusion that the sentencing judge must have made a miscalculation when he imposed a non-parole period comprising 75 percent of the sentence.
These cases all pre-dated Hili and, from the late 1990s at least, may have been affected, to some extent, by the problematic "norm" rejected in that case. However, the proposition that 75 percent is a harsh ratio pre-dated the evolution of that "norm" and appears to have its origin in Griffiths, in the passage referring to State offences before the introduction of the statutory ratio.
The harshness of particular non-parole periods in Commonwealth matters has been considered by the Western Australian Court of Appeal in the light of Hili. In Lam v R; Le v R (2014) 241 A Crim R 562; [2014] WASCA 114, McLure P (Buss and Newnes JJA agreeing), conducted a thorough consideration of the issue. The proportions of the non-parole period in the sentences imposed on the appellants in that case were 85.7 percent and 76.9 percent. McLure P observed as follows at [60]: "The range of non-parole periods customarily imposed in sentencing for drug importation offences is ordinarily within the range of 60-66% of the head sentence. However, that range is in all likelihood affected (or infected) by the 'norm' jurisprudence, either directly or indirectly. Even putting that range to one side, there is no doubt that the non-parole period for each appellant is very high."
McLure P immediately went on to discuss the cases of the appellants before her and to explain why, in their particular circumstances, the very high ratios were appropriate: "However, the circumstances of each appellant share some unusual features. There were no mitigating factors. There was nothing in the material before the sentencing judge to suggest remorse, a willingness to facilitate the course of justice, insight or acceptance of responsibility. Further, and most significantly, neither appellant engaged in any meaningful way in the sentencing process. The court was presented with a largely blank canvas. The overwhelming impression is that the appellants acted after evaluating the risks and the rewards of committing the offence. An unusually long non-parole period was open in the circumstances."
Mr Aboud submitted that McLure P's approach and analysis are correct. However, Mr Aboud's case is very different from the appellants in that case. McLure P found that there were no mitigating factors. Nearly all of the factors which were absent from the cases before her are present in Mr Aboud's case, with the addition of good prospects of rehabilitation and significant and unjustified delay.
Accordingly, Mr Aboud submitted that 75 percent remains a very high proportion for a non-parole period in a Commonwealth sentencing matter and that it was not open to her Honour to impose it in this case. He submitted further that if this Court considered that such a ratio was technically open to her Honour, she failed properly to consider the facts and principles which called for a lesser ratio.
In response to these contentions, the Crown referred specifically to what was said by the High Court in Hili at [44] as follows: "These are reasons enough to conclude that there neither is, nor should be, a judicially determined norm or starting point (whether expressed as a percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. More particularly, these are reasons enough to conclude that it is wrong to say, as the Court of Criminal Appeal did, 'that the "norm" for a period of mandatory imprisonment under the Commonwealth legislation is between 60 and 66%, which figure will be affected by special circumstances applicable to a particular offender'. It is wrong to begin from some assumed starting point and then seek to identify 'special circumstances'. Rather, a sentencing judge should determine the length of sentence to be served before a recognizance release order takes effect by reference to, and application of, the principles identified by this Court in Power, Deakin and Bugmy."
More recently in Afiouny v R [2017] NSWCCA 23 at [45] and [46], Hoeben CJ at CL said this: "[45] That passage from Hili v The Queen; Jones v The Queen and the authorities therein cited, emphasised the need for an appropriate non-parole period which not only conferred a benefit on an offender but was also meant to serve the interests of the community … [46] It is trite to observe that the necessary deterrent and punitive effects of a sentence should be reflected both in the head sentence and in the minimum term…"
The Crown also emphasised that her Honour made findings about the objective seriousness of Mr Aboud's offences in the following ways: 1. He was motivated by sexual gratification. 2. He abused his position of power, being the difference in age and maturity between him and each of his young teenage victims. 3. He showed a serious degree of persistence in pursuing his victims. 4. Some of the offending involved verbally threatening the victims by calling them on their home telephone numbers and, to at least some of them, suggesting that he knew where they lived. 5. Some of the offences showed an intention to engage in future sexual activity with the victims, although this did not occur. 6. Mr Aboud and the victims were strangers. 7. Mr Aboud had plenty of opportunity to plan, to consider the seriousness of his actions and to fine tune his tactics to have the victims comply with his threatening and persistent behaviour. 8. Mr Aboud groomed the victims by offering, and in one case providing, gifts. 9. Mr Aboud sent a photograph of his genitals to one of the victims. 10. The offences took place over an extended period and involved eight girls aged between 13 and 15 years. 11. Mr Aboud chose to exploit the internet and set up false Facebook accounts that would be more attractive to the young females he hoped to pursue.
Her Honour observed that "a sentence must be imposed that is of appropriate severity in circumstances of the offences".
The Crown submitted that Mr Aboud's counsel in the sentencing proceedings did not make any submissions at all about the length or structure of the sentences that could or should be imposed. Moreover, no reference was made at that time to the setting of any non-parole period. I should make it clear that, unlike some matters falling from counsel in the course of sentencing proceedings that helpfully inform the resolution of issues on appeal in this Court, reference or otherwise to the ratio of parole to non-parole periods is not presently one of them. That is particularly so in this case having regard to the fact that the offences are Commonwealth offences in respect of which no statutory ratio of the type covered by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 applies. It is for that reason completely unsurprising that no submissions concerning so-called special circumstances were made in the proceedings below.
Those matters apart, it still remains for Mr Aboud to demonstrate in this Court why the structure of her Honour's sentence is erroneous. Mr Aboud is effectively limited to reliance upon the fact that her Honour did not in terms consider or discuss why a non-parole period of 75 percent of the head sentence was chosen. It does not seem to me that that so-called failure also amounts to error. It is not a matter in which in my view her Honour can be criticised for failing to give reasons.
That is for the obvious reason that ultimately what clearly emerges from her Honour's remarks on sentence is that she considered the several offences to warrant "a sentence of appropriate severity". The sentence to which those remarks must have been directed was the head sentence of 7 years. In the final analysis, having decided that a head sentence of that order was warranted, it is clear that her Honour was also of the view that Mr Aboud should spend at least 5 years and 3 months in full time custody. It then becomes a matter of indeterminate relativity to criticise that non-parole period by reference to the proportion it bears to the overall head sentence if the discretionary decision to impose it in the first place is otherwise unassailable.
The second ground of appeal is without merit and should be dismissed.

Ground 3

Her Honour was required to take into account "the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences": s 16A (2) (h) of the Crimes Act 1914 (Cth).
The agreed facts include the facts that Mr Aboud voluntarily attended Tweed Heads Police Station on 25 July 2011 and supplied his passwords and account details to the police. Mr Aboud also gave consent to the police to have access to the passwords for these accounts. Mr Aboud took part in an electronically recorded interview with the police. He admitted being the owner and sole user of the two Facebook accounts and admitted that the purpose of these accounts was to talk to young people, mainly females.
Counsel for Mr Aboud in the sentencing proceedings made submissions to her Honour that he had co-operated fully with the police as much as he could have, thus enabling the police to pursue the allegations against him and to facilitate the investigative process. Her Honour made no reference to Mr Aboud's co-operation with the police or to s 16A (2) (h) of the Act either during the sentencing hearing or in her remarks on sentence.
Her Honour referred to Mr Aboud's dealings with the police in the following terms: "Police approached him on 25 July 2011 in relation to these matters and he voluntarily attended Tweed Heads Police Station shortly after that. He participated in an interview. During that interview he admitted being the owner and sole user of the two Facebook accounts. He said the purpose of the accounts was to talk to younger people and he was mainly interested in females."
Mr Aboud complains that, although that passage recites a passage from the agreed facts almost verbatim, it significantly omits any reference to the provision of the account details, passwords or consent. Later, when dealing with the issue of contrition, her Honour said this: "I accept that he has shown a level of contrition by his early pleas of guilty and that negotiations for facts were finalised at an early stage, no doubt putting at rest the minds of the complainants. However it must also be observed that he had little option. The electronic evidence that the police had was very damning. I do accept though that he is remorseful and has accepted responsibility for his behaviour as demonstrated by the pleas of guilty show [sic] a willingness to facilitate the course of justice."
Mr Aboud argued that it is apparent in these circumstances that her Honour failed to take his assistance and co-operation into account. That is said to be because her Honour not only made no reference to it, but because she also omitted any reference to the relevant events when reciting the facts of the case, referring only to the electronic evidence against Mr Aboud as a factor militating against the extent of his contrition.
The Crown responded by contending that there was no evidence that quantified or assessed the value of Mr Aboud's co-operation and assistance. That submission throws into focus her Honour's conclusion that the electronic evidence that the police had was very damning. The point in issue is whether or not her Honour intended by that remark to include the discrete evidence that was made available by Mr Aboud in the provision of his Facebook passwords. I would not for my part have thought that her Honour's reference to electronic evidence included Mr Aboud's admission that he was the sole operator of the relevant Facebook accounts or how he used them.
Mr Aboud contends that if the damning electronic evidence was either limited to, or even if it merely included, the discrete material that came from him, he is entitled to be given the benefit of that fact in the formulation of his sentence and that her Honour should otherwise have made her position clear. In my opinion, Mr Aboud's concern is purely one of form but not substance. By the time the police had interviewed Mr Aboud he had admitted his involvement in the allegations and proffered some further details and explanations of his conduct. The important admission was that he was the owner and sole user of the relevant Facebook accounts. His further concession that the purpose of the accounts was to talk to young females was particularly significant. It would have been churlish in the extreme thereafter for Mr Aboud to have denied access to the passwords for these accounts in the circumstances. It would, for example, have arguably disentitled Mr Aboud to the benefit of contrition that was factored, together with his pleas, into the final sentence. It would possibly also to some extent have neutralised, or at least reduced, the benefit to him of his previous admissions.
A fair reading of her Honour's remarks on sentence makes it clear that she accepted that Mr Aboud co-operated with the police from the very first. As a corollary to that observation, it is obvious that her Honour was not critical in any way of the manner in which Mr Aboud dealt with the police: her remarks are to the contrary. I do not accept the implicit suggestion that there is a relevant connection between her Honour's opinion that Mr Aboud had "little option" but to plead guilty on the one hand and a proposition that the details of his offending only became available after access to his Facebook account had been provided on the other hand. The provision of Mr Aboud's passwords to the police is effectively de minimis in this context: it is commendable but is not critical.
The third ground of appeal is without merit and should be dismissed.

Conclusion and orders

In my opinion the following orders should be made: 1. Grant leave to appeal. 2. Dismiss the appeal.

Amendments 04 July 2017 - paragraph [3] - changed 's 417.26(1)' and 's 417.27(1)' of the Criminal Code (Cth) to 's 474.26(1)' and 's 474.27(1)'. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 July 2017

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