Al Ghazzawi v R

Court of Criminal Appeal (NSW)|2018-09-14|Before: Macfarlan JA, Wilson J, Bellew J, MacFarlan JA

Judgment - EX TEMPORE (REVISED)

MACFARLAN JA: I agree with Bellew J.
BELLEW J: On 14 February 2017 an indictment was presented against Issam Sheyaa Al Ghazzawi ("the applicant") alleging two offences. The first (count 1) was that on 19 January 2011, at Telopea in the State of New South Wales, he broke into and entered the dwelling house of a person to whom I shall refer as the victim, and committed a serious indictable offence therein, namely he indecently assaulted the victim in circumstances of aggravation, namely that he knew that there was a person in the premises. The second count (count 2) alleged that on the same date, at the same place, the applicant assaulted the victim, and at the time of the assault committed an act of indecency upon her.
The applicant entered a plea of guilty to count 2 (which was charged as an alternative to count 1) and the Crown accepted that plea in full satisfaction of the indictment. The offending in count 2 was contrary to s 61L of the Crimes Act 1900 (NSW), the maximum penalty for which is imprisonment for five years.
On 14 June 2017 the applicant was sentenced by his Honour Judge Bennett SC to imprisonment for a period of 1 year and 9 months, comprising a non-parole period of 12 months, commencing on 7 June 2017 and expiring on 6 June 2018 with a balance of term of 9 months expiring on 6 March 2019. Although the applicant was immediately taken into custody he was subsequently released on bail on 7 December 2017 and has remained at liberty since that time.
The applicant now seeks leave to appeal against that sentence on the single ground set out below.

THE FACTS OF THE OFFENDING

The facts of the offending were agreed and were recorded by the sentencing judge as follows.
In January 2011 the victim lived at premises which were on the top floor of a home unit complex. At about 6.30pm on 19 January 2011 the applicant and another two males drove past the complex. At the time, the victim's sister and two female friends were sitting outside. The victim and her sister are of Italian heritage and one of the other girls was of Greek heritage. The applicant approached the three girls and introduced himself. He asked for their names and phone numbers. He was told by the victim's sister that she had a boyfriend. The applicant responded: "That does not matter".
The applicant returned to his car and came back with a piece of paper which he threw onto the lap of the victim's sister. The piece of paper had his name and a mobile phone number written on it. The victim's sister said that she did not want the number, and again told the applicant that she had a boyfriend. The applicant replied: "That's okay, just call".
The applicant then walked away and as the car drove from the premises he called out: "We will be back".
All of this occurred at a time when the victim was inside her unit. She had laid down to have a rest and had fallen asleep on the couch listening to music. She was wearing a bra, underpants and a dressing gown.
The applicant then returned to the unit complex. He approached a unit on the ground floor where he spoke to the occupant. He said that he was looking for the Greek or Italian looking girls. He was told that the only residents of the complex who matched that description lived in a particular unit, to which he was directed. That unit was occupied by the victim.
The applicant walked up the stairs and approached the front of the victim's unit. He knocked, and a short time later he entered. The victim was still asleep on the couch. The applicant approached the couch and started to masturbate whilst standing over the victim as she slept. This woke her and she jumped up from the couch. The applicant walked away from the couch and approached the kitchen. The victim was fearful. She approached the applicant and grabbed him repeatedly, yelling: "Get out of my house".
The applicant continued to masturbate in front of the victim before turning around and stretching one arm out to try and grab hold of her. He grabbed her dressing gown, using one hand to try and pull the gown from her and using the other hand to pull her closer to him so that he could kiss her. The victim pushed him away. The applicant then turned towards the kitchen and ejaculated onto the kitchen floor before walking over to the sink and washing his hands, with the victim continuing to tell him to leave. The victim then called her sister, and told the applicant that her sister and her boyfriend were returning to the house. She again told the applicant to leave and at that point he did so.
When the victim's sister arrived at the premises the victim described what had happened. She then called her mother. Police were notified and they secured the victim's premises as a crime scene. Ejaculate was recovered which matched the applicant's DNA profile. On 27 January 2011 the victim identified the applicant from an array of photographs. The applicant was subsequently arrested in Victoria several months later.
The agreed facts recorded by the sentencing judge, and which were signed by the Crown and the applicant, identified the indecent assault as the applicant's seizing of the victim's dressing gown whilst attempting to pull the gown from the victim and pull her closer so that he could kiss her. However, the gravity of the offending obviously fell to be assessed having regard to the entirety of the agreed facts.

THE FINDINGS OF THE SENTENCING JUDGE

The sentencing judge found that when viewed objectively, this was a "serious offence". His Honour also noted a number of aspects of the applicant's subjective case, including that: 1. he was born in 1976 and was, at the time of sentence, 38 years of age; 2. he had no antecedents, save for an offence in Queensland in 2002 of behaving in an indecent manner which resulted in the imposition of a fine but no conviction; 3. there were a number of testimonials tendered in his case which spoke, amongst other things, of the assistance that he renders to incoming refugees, and which referred to the misconduct being out of character; 4. he left home at the age of 21 to live in Syria before coming to Australia in order to avoid military service in Iraq; 5. he had been domiciled in Melbourne where he lived close to his siblings; 6. he had been married for two years and was not competent in reading or writing Arabic or English; and 7. he was in receipt of a disability support pension due to mental illness.
Tendered in the applicant's case on sentence was a report of Aaron Cunningham, a forensic psychologist. Mr Cunningham reported that the result of his assessment of the applicant's mental state was consistent with the presence of paranoid schizophrenia. He also reported that psychometric testing had indicated the applicant's cognitive functioning to be in the intellectually impaired range. He expressed the view that the applicant presented with a diagnosis of paranoid schizophrenia and intellectual impairment. He regarded that impairment as being consistent with the applicant's reported schooling and employment history.
The sentencing judge canvassed the contents of Mr Cunningham's report and concluded (at ROS 7-8): "I am asked by the Crown not to make findings with regard to the representation in this report that the offender has paranoid schizophrenia. I am not prepared to completely ignore that proposition but I am not in a position to make any findings of fact with regard to the extent of that affliction, the impact that it has upon him, or the extent to which the medication assist him in controlling his symptom. There is simply no material before me upon which I can make those findings but I do bring it into account as part of the special circumstances which I am satisfy exist and which will result in a shorter custodial component in the sentence that I am about to impose".
No issue is taken with these findings.
Also before the sentencing judge was a document in the nature of a pre-sentence report prepared by the Victorian Department of Justice and Regulation. Significantly, that report included an account of the offending given by the applicant which was, in material respects, fundamentally at odds with the agreed facts which had been tendered on sentence. The sentencing judge noted (at ROS 9) that this posed some difficulty for the applicant, and concluded (at ROS 11): "Mr Norrie who appears for the offender conceded that the Court was to proceed to sentence on the basis of the agreed statement of facts. The extent to which the offender is remorseful for his misconduct is somewhat challenged by the evidence that he gave and what has been attributed to him by the Community Corrections officer in Victoria. However, it is the fact that he pleaded guilty to this offence, it is the fact that he has acknowledged in the witness box that he did wrong and he has said that he regrets his misconduct. Upon the material before me he has no prior record, apart from a minor event in Queensland, and thus I am prepared to find on the balance of probabilities that there are prospects of rehabilitation. To quantify them as being good prospects, however, I am not prepared to find."
Again, no issue is taken with these findings.
The sentencing judge concluded (at ROS 12) that he was not persuaded that any sentence other than full time custody was appropriate. In expressing that view, his Honour stated that he was satisfied that the "line" set by s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) had been crossed. He allowed a discount of 12.5% to reflect the utilitarian value of the applicant's plea, and found special circumstances.

THE GROUND OF APPEAL

The single ground of appeal which has been advanced by the applicant before this Court is that the sentence imposed was manifestly excessive.

SUBMISSIONS OF THE APPLICANT

The written and oral submissions of counsel for the applicant relied on sentencing statistics, and made extensive reference to the judgment of Fagan J in Baines v R [2016] NSWCCA 132 where (commencing at [129]) his Honour canvassed a range of sentences imposed in other cases of offending of this kind. Counsel for the applicant relied upon his Honour's analysis of those cases to demonstrate that the sentence imposed on the applicant was manifestly excessive. In advancing these submissions, counsel placed significant emphasis on the fact that the applicant had not physically touched the victim's genitalia or breasts at any time. It was submitted that in these circumstances the offending fell towards the lower end of the scale of objective seriousness, and that a suspended sentence would have been within the available range of sentencing discretion.

SUBMISSIONS OF THE CROWN

The Crown submitted that none of the authorities referred to by Fagan J in Baines mandated a conclusion that the present sentence was manifestly excessive. The Crown pointed, in particular, to the fact that the applicant's offending had been aggravated by the fact that it had been committed in the victim's home. The Crown also pointed to the fact that despite the victim repeatedly directing the applicant to leave her premises, he persisted with his offending conduct.
Whilst accepting that the applicant had not touched the victim's breasts or genitalia, the Crown nevertheless submitted that the overall circumstances of the offending would have terrified the victim, who had been asleep in the confines of her own home. Inherent in the Crown's submissions was the proposition that it was necessary to view this incident not in isolation, but in the context of the entirety of the facts that I have outlined.

CONSIDERATION

In order to succeed on a ground of appeal which asserts that a sentence is manifestly excessive, an applicant must establish that such sentence is unreasonable or plainly unjust: Markarian v R (2005) 228 CLR 357; [2005] HCA 25. It follows that whether or not another sentence may or may not have been within the available range of sentencing discretion is not to the point.
Further, in circumstances where the primary submissions advanced on behalf of the applicant were based upon sentencing statistics and a comparison of sentences imposed in other cases involving this type of offending, it is to be noted that this Court has emphasised on a number of occasions that the use to which material of that nature can be put in support of a proposition that a sentence is manifestly excessive is necessarily limited: see for example R v Nikolovska [2010] NSWCCA 169; 209 A Crim R 218; RLS v R [2012] NSWCCA 236.
In my view, his Honour's conclusion that the offending was serious was one which was well open. The offending involved a level of premeditation, with the applicant returning to the premises after it had been made clear to him that the girls to whom he had spoken were not interested in his advances. Having returned to the premises, he specifically targeted the victim by inquiring of another occupant of the complex as to the particular unit in which "the girls" lived. Having located the victim's premises, the applicant entered without invitation. His subsequent conduct woke the victim from her sleep.
Importantly, the agreed facts reflect that the victim repeatedly told the applicant to leave her premises. The applicant's response to those demands was to continue to masturbate in front of the victim, whilst simultaneously grabbing hold of her to try and kiss her. When the victim finally pushed the applicant away, his response was to turn towards the kitchen and ejaculate onto the floor. This again occurred in circumstances where the victim repeatedly told the applicant to leave the premises. The applicant only left when he was warned by the victim that other people were returning.
Further, and even accepting that the applicant did not make physical contact with the victim's breasts or genitalia, there was a fundamental necessity for his Honour to determine sentence according to the entirety of the factual circumstances. It may well be that when taken in isolation, the act of indecency in the present case could be said to fall at the lower end of the scale. However, for the reasons that I have outlined, it would be an incorrect approach to view the offending in such an isolated way. The offending involved the applicant returning to the victim's premises when he was clearly aware that those who were there were not interested in him. He then entered the victim's premises without invitation, woke her up, assaulted her and masturbated in front of her to the point of ejaculation. All of this occurred in circumstances where he was told more than once to leave, and where he only finally left when faced with the prospect that that other people were likely to arrive at the premises in a short time.
It is evident from the remarks on sentence that the sentencing judge had regard to all relevant aspects of the applicant's subjective case. Quite properly, given the paucity of the medical evidence before him, his Honour was not in a position to reach an affirmative conclusion that the applicant suffered from any paranoid schizophrenic condition. However, it is also clear that he took that evidence into account as part of the special circumstances which he found were made out. Further, his Honour was limited by the evidence to a finding that there were "some" prospects of rehabilitation.
There is nothing in either the sentencing statistics or the cases to which this Court was referred which demonstrates that this sentence was unreasonable or plainly unjust. Indeed in my view, the sentence was well within his Honour's sentencing discretion having regard to the seriousness of the offending.
For these reasons, I am not persuaded that the sentence is unreasonable or plainly unjust. It follows that the ground of appeal is not made out.

ORDERS

I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal. 3. Order that the applicant be returned to custody forthwith to complete his sentence. 4. Order that the applicant be eligible for parole on 13 March 2019. 5. Order that the sentence will expire on 13 December 2019.
WILSON J: I agree with Bellew J.

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: 09 November 2018

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