AOUN, Gabriel v. REGINA [2007] NSWCCA 292

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 199 s.21A

Lozanovski -v- R [2006] NSWCCA 143 R v. Aoun [2006] NSWSC 800 CASES CITED: R v. De Simoni (1981) 147 CLR 383 R v. Olbrich (1999) 199 CLR 270 Ryan -v- The Queen (2001) 206 CLR 267 Weininger v. The Queen [2003] HCA 14, 212 CLR 629

PARTIES: Gabriel Aoun - applicant Regina - respondent

Mr. P. Byrne SC with Mr. I. McLachlan for applicant COUNSEL: Mr. P. Ingram for the Crown

SOLICITORS: Bond Lawyers for applicant S. Kavanagh, Solicitor for DPP, for respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT DATE OF DECISION: 7 August 2006

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 800

IN THE COURT OF CRIMINAL APPEAL CCAP 2005/3884 SC 2005/2145

HODGSON JA HISLOP J LATHAM J

Tuesday 16 October 2007 AOUN, Gabriel v. REGINA Judgment 1 HODGSON JA: Between 5 and 28 June 2006, the applicant was tried before Hulme J and a jury on two charges, namely that: 1. On 7 December 2003 at Merrylands in the State of New South Wales, persons unknown to the Director did murder [the deceased] and that he, before the serious indictable offence was committed, namely on 7 December 2003 at Merrylands in the State of New South Wales, did aid, abet, counsel or procure the said persons unknown to the Director to commit the said serious indictable offence of murder. 2. On 7 December 2003 at Merrylands in the State of New South Wales, persons unknown to the Director did murder [the deceased] and that he, knowing the said persons unknown to the Director to have committed the said serious indictable offence of murder of [the deceased] on 7 December 2003 at Merrylands in the State of New South Wales, did assist, maintain, harbour or receive the said persons unknown to the Director. 2 The trial judge directed the jury to return a verdict of not guilty in relation to count 2. The jury returned a verdict of guilty in relation to count 1, the offence of accessory before the fact to murder. 3 The offence of accessory before the fact to murder carries the same maximum penalty as murder, that is, life imprisonment. 4 The sentencing judge sentenced the appellant to imprisonment for a non-parole period of 13 years commencing on 18 May 2006, with a balance of term of 4 years and 3 months commencing on 18 May 2019. The appellant seeks leave to appeal from those sentences. 5 The trial judge made detailed findings as to the circumstances of the offence: see R v. Aoun [2006] NSWSC 800 at [4]-[31]. I will outline those circumstances briefly. 6 The son of the deceased gave evidence that he sold a motor vehicle to a person identified by the trial judge as Mr. B, that Mr. B did not pay the $50,000.00 price, that on 25 September 2003 this was reported to Police who took possession of the vehicle, and that the house where the deceased's son lived was shot at that night. 7 On 7 December 2003, there was an incident in which the deceased's son had set out to chase and/or damage Mr. B's vehicle with a four-wheel drive vehicle he was driving, as a result of which Mr. B was injured and his vehicle damaged. 8 Later that day, the applicant went to a house he owned, in which one Mr. Lenati lived. There was a garage on that property in which there was a Nissan Skyline vehicle that had been stolen on the night of 2-3 October 2003. 9 With other persons, the applicant moved a car that was on the driveway leading to the garage. He broke and removed the steering column and ignition barrel of the Skyline, in order to move it out of the garage, and another steering column and ignition barrel were substituted. He acquired three cans of WD40 and wiped down the Skyline thoroughly inside and out. 10 That night, the Skyline was driven past the deceased's house, a number of shots were fired, and the deceased was fatally wounded by one of these shots. 11 The trial judge concluded, on the basis of the jury's verdict, that the applicant, knowing or believing that Mr. B intended to kill or inflict grievous bodily harm on the deceased's son or one of his family, aided or assisted him to do so, and the shooting of the deceased was within the scope of a joint criminal enterprise in which Mr. B and others were engaged. 12 The trial judge also found that the applicant had advised Mr. B "if you were smart you wouldn't do it now in daylight"; and that when the applicant had been told to get in the car, he declined saying that was where he drew the line and that "He's a mate of mine". 13 Parts of the remarks on sentence relevant to this application are pars.[25], [32], [35]-[37] and [43]: 25 On matters of significance adverse to his interests, I have no confidence in anything the Prisoner said. (I should perhaps add, lest there be any doubt, that in determining the sentence to be imposed on the Prisoner, I have fixed upon the criminality involved in the offence of which he has been found guilty and other matters relevant to his sentence. Any other criminality his acquaintances were or he may have been involved in - and I make no finding that he was - is not relevant to that task.)

… 32 In these circumstances, while I would assess the Prisoner's culpability as significantly less than that of a, or the, organiser or inspiration for what occurred, that culpability is nevertheless substantial. He actively assisted the shooting of another human being, a shooting which resulted in death. It does the Prisoner no credit that he was close enough to the person either intended to be shot, or to have a member of his family shot, to refer to that person as a "mate".

… 35 Section 21A of the Crimes (Sentencing Procedure) Act requires that I direct attention to a number of matters that that section refers to as aggravating or mitigating although the section then goes on to provide that the court is not to have additional regard to any of the aggravating factors that are an element of the offence. Particularly in light of that limitation, the only aggravating factor of possible significance here is that the offence involved a series of criminal acts - wilful damage to the Skyline, aiding in the use or driving of a stolen motor vehicle - and the offence was part of a planned criminal activity. However, in the circumstances of this case, it does not seem to me that the fact of these matters, or that they fall within s21(2), are reasons for increasing the Prisoner's sentence beyond that otherwise appropriate. Other factors referred to in Section 21A(2) exist but they are so intimately tied up with the circumstances of the offence that they do not merit further specific mention or weight.

36 Counsel for the Prisoner submitted that mitigating factors referred to in Section 21A(3) included that the Prisoner does not have any record of previous convictions, was of good character, was unlikely to re-offend, and had shown remorse for his actions. It is clear he has no prior record. I am not persuaded he was a person of good character. The evidence in the case demonstrates actions quite inconsistent with good character and a significant association with others, including Mr B and Mr Lenati, and possibly Mr C, who demonstrably were not of that ilk.

37 A pre-sentence report was tendered. It reveals that the Prisoner is 28, that he left school at age 15, then qualified as a panel beater and established an excellent reputation within that trade. He seems to have a strong work ethic and remained employed until his arrest on the current charge. He acquired the house property at 4 Macarthur Street in 2001, a fact which suggests some degree of maturity. The report also records that when the Prisoner was 12 his father died and this had a profound effect on the Prisoner. There is nothing to suggest any of these matters have anything to do with the Prisoner's current situation.

… 43 For reasons I have indicated, I regard the Prisoner's role and actions as placing his criminality below that of some of the others involved. However, he was, in the words of the Crown, an essential cog in the events as they occurred, willing, even if somewhat reluctantly, to assist Mr B in effecting the death or serious injury of another human being and giving advice as to how this should be effected. Although the Prisoner must be given credit for the fact that he has no prior record, his subjective circumstances are not otherwise particularly strong although I think the probabilities are against his re-offending. Personal deterrence has thus a lesser role to play than it might in other circumstances. 14 The applicant relies on three grounds of appeal: Ground 1: The learned sentencing judge erred in finding that the applicant's culpability was "substantial" and that he was "an essential cog in the events as they occurred".

Ground 2: The learned sentencing judge erred in failing to find that the applicant was otherwise a person of good character. Ground 3: The sentence imposed was manifestly excessive.

GROUND 1 15 Mr. Byrne SC for the applicant submitted that what the applicant did could readily have been done by someone else, so it was an error for the trial judge to describe him as "an essential cog". He submitted that to find his culpability was substantial was to overstate his role. The applicant's remark about not taking action during daylight was unlikely to have affected the execution of the enterprise in any material way. 16 In my opinion, the assistance given by the applicant to the commission of the murder could properly be called substantial. Breaking and removing a steering column and ignition barrel, and the thorough wiping down of a vehicle using three cans of WD40, are far from minor or trivial matters. In circumstances where, on the evidence, Mr. B was in a highly emotional state, the advice to wait until dark could also properly be considered significant. 17 In order that the Skyline be used in the shooting, it was essential that it be made ready, and in that sense the work done on it could be regarded as essential. It was not shown that no-one else could have done this work, but I would not interpret the trial judge's reference to an "essential cog" as suggesting that he was finding, and acting on the basis, that no-one else could have done it. 18 For those reasons, in my opinion no error is shown in the trial judge's statement that the applicant was an "essential cog", and no error in finding that his culpability was substantial.

GROUND 2 19 Section 21A of the Crimes (Sentencing Procedure Act) 1999 is as follows: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work, (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, (d) the offender has a record of previous convictions, (e) the offence was committed in company, (f) the offence involved gratuitous cruelty, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), (i) the offence was committed without regard for public safety, (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, (k) the offender abused a position of trust or authority in relation to the victim, (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant), (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity. The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, (c) the offender was provoked by the victim, (d) the offender was acting under duress, (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, (j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability, (k) a plea of guilty by the offender (as provided by section 22), (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23). (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence. 20 Mr. Byrne submitted as follows in his written submissions: 13. If the actions being referred to by His Honour as those which are "quite inconsistent with good character" were actions which formed part of the subject offence then His Honour has erred in failing to find (for that reason alone) that the applicant was otherwise a person of good character. In accordance with such authorities as Ryan - v- The Queen (2001) 206 CLR 267 and Lozanovski -v- R [2006] NSWCCA 143, a sentencing judge must not consider the offences for which a person is being sentenced when considering whether that person is otherwise of good character. 14. In the present case, the only indication as to the actions to which His Honour was referring arose during the course of oral submissions on sentence at which time His Honour indicated that he was not prepared to make a finding of good character as "not many of us engage in wiping down for fingerprints" (T16, line 4, 7 August 2006). If these are the actions His Honour had in mind in refusing to make such a finding then His Honour has clearly erred in failing to make the positive finding of good character and thereafter taking such a matter into account as a proper mitigating factor upon sentence. 15. Further, the remark that the applicant had a "significant association with others ... who demonstrably were not of that ilk" clearly overlooked the fact that the applicant was otherwise associated with some of the others in that he either worked for or with them and/or that he rented premises to them (T481-490). Whether a sentencing judge can properly draw a negative inference when these are the connections underpinning the various associations, is strongly disputed.

21 Mr. Byrne relied on what McHugh said in Ryan at par.[23] and [25]: 23 It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character . When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Because that is so, many sentencing judges refer to the offender's "previous" or "otherwise" good character.

… 25 Secondly, if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances. 22 The Crown accepted that these remarks were apposite to the application of par.(f) of s.21A(3), and in my opinion this is correct. It is confirmed by the use of the word "was" in par.(f) (see Lozanovski at [12]); and also by the consideration that otherwise there would be no paragraph within s.21A dealing with previous good character. 23 However, in order that a judge take into account an accused's good character as working in his favour, this is a matter that needs to be proved on the balance of probabilities: see R v. Olbrich (1999) 199 CLR 270, Weininger v. The Queen [2003] HCA 14, 212 CLR 629. In my opinion, if there is evidence suggesting criminal conduct other than that for which an offender is being punished, that may be taken into account by a sentencing judge in deciding whether or not the accused has shown previous good character on the balance of probabilities; and in my opinion also, this does not offend either Ryan or R v. De Simoni (1981) 147 CLR 383: see Weiniger at pars.[31]-[33]. 24 In this case, the applicant's lack of previous convictions and the circumstance that the applicant had an excellent reputation as a panel beater and a strong work ethic, and remained in employment until the arrest, were taken into account in the applicant's favour. These factors also amounted to material that could possibly have supported a finding that the applicant was otherwise of good character. 25 However, the very nature of what the applicant did in this case, including the breaking and removing of the steering column and ignition barrel of a stolen car and wiping the stolen car down with WD40 to remove fingerprints, could properly be taken as some evidence that what the applicant did on this particular occasion was not some isolated one-off aberration, but rather suggestive of familiarity with dishonest dealing with stolen cars. Although what the trial judge said in his ex tempore remarks could be understood as a positive finding to that effect, I do not understand him to have made such a positive finding, but rather to have treated that consideration, together with the applicant's association with Mr. B and others, as sufficient to justify his not being satisfied, on the balance of probabilities, that the applicant was otherwise of good character, much as the trial judge had done in Weininger. Viewed in that way, in my opinion no error is shown.

GROUND 3 26 Mr. Byrne made the following submissions: 16. The applicant was 25 years of age at the time of the offence. He had no prior convictions and had a strong work history from the age of 15 years. There is little assistance to be obtained from the statistics for this offence. There are few in the sample and it is the kind of offence for which the objective criminality may vary greatly. 17. He was found by the sentencing judge to be remorseful for what had occurred. His Honour found that the probabilities were against him re-offending. 18. It is submitted that, on any view, the applicant's role in the enterprise was a minor one when compared with the role of others, and it was a role he carried out somewhat reluctantly. 19. His role was limited to aiding (or assisting) only. He neither incited nor procured the commission of the offence. Thus, the applicant's criminality was at the lower end of the possible range for such an offence. 20. In all the circumstances, it is submitted that the sentence imposed upon the applicant was manifestly excessive. 27 The trial judge noted that s.54D of the Crimes (Sentencing Procedure) Act provides for a standard non-parole period of 20 years for murder. The trial judge rejected a submission for the Crown that this provision applied to the applicant, and I agree with the trial judge on this matter. However, the section does demonstrate the attitude of the legislature to the offence of which the applicant has been convicted of aiding, and it is to be kept in mind that the maximum penalty for both sentences is the same. As submitted by the Crown, the applicant provided useful assistance and thereby facilitated the drive-by shooting murder of an innocent man who was standing at the front of his home at night in a residential area of Sydney. In my opinion, although the sentence was a heavy one, when one has regard to the extent of the assistance and the seriousness of the offence in relation to which it was provided, the sentence imposed was not manifestly excessive. 28 For those reasons, I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. 29 HISLOP J: I agree with Hodgson JA. 30 LATHAM JA: I agree with Hodgson JA. **********

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