[1936] HCA 40
Hughes v R [2018] NSWCCA 2
Kentwell v The Queen (2014) 252 CLR 601
[2014] HCA 37
Kerr v R [2016] NSWCCA 218
Lee v R [2020] NSWCCA 244
Lehn v R (2016) 93 NSWLR 205
[2014] NSWCCA 255
R v Cartwright (1989) 17 NSWLR 243
R v Perry [2000] NSWCCA 375
R v Webb (2004) 149 A Crim R 167
Source
Original judgment source is linked above.
Catchwords
[1936] HCA 40
Hughes v R [2018] NSWCCA 2
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Kerr v R [2016] NSWCCA 218
Lee v R [2020] NSWCCA 244
Lehn v R (2016) 93 NSWLR 205[2014] NSWCCA 255
R v Cartwright (1989) 17 NSWLR 243
R v Perry [2000] NSWCCA 375
R v Webb (2004) 149 A Crim R 167
Judgment (8 paragraphs)
[1]
Solicitors:
Lawyers Corp (Applicant)
Director of Public Prosecutions (Respondent)
File Number(s): 2017/279642; 2016/24441
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Citation: Not applicable
Date of Decision: 15 March 2019
Before: DCJ Flannery
File Number(s): 2017/279642; 2016/24441
[2]
Judgment
BRERETON JA: On 9 September 2016, Mr Cheung Pun Lok arrived in Australia for the purpose of entering into business with a local migration agent. He asked Ms Jing Min Zhou to assist him to make contact with a migration lawyer. She spoke to Mr Bilal Bekdache, and made arrangements for Mr Cheung supposedly to meet with a man named Henry at the Bayblu restaurant at Blakehurst on 10 September 2016 at 8pm.
At about 8.50pm on 10 September, Mr Cheung and Ms Zhou drove to the restaurant, but on attempting to enter the restaurant carpark found the entrance blocked by a van. Another car stopped behind their car. One of the vehicles was fitted with a flashing blue light. Mr Cheung was dragged from the car in which he was travelling and placed in another, with his face down, and his hands were bound with rope.
Over the following 39 hours, he was taken to a shed, then a unit, then a factory, and then back to the unit. At each of those places, money was demanded from him, and when he said he had none, he was repeatedly struck to the face and the body by a number of people. At one stage, a gun was pointed to his head; an electrical drill touched his skin; a bucket of petrol - or at least something which he thought was petrol - was poured over him and a threat made to set it alight; and a knife was placed in his mouth. As a result, he suffered cuts to the back of his head, his face and his hands, and drill marks on his face and chest.
Bekdache, the applicant Mr Mahmoud Banat, and one Mr Issam Sayadi, were charged with an offence under Crimes Act 1900 (NSW), s 86(3) (specially aggravated detain with intent to ransom (in company, occasion actual bodily harm)) ("the kidnapping offence"). Bekdache pleaded guilty. The applicant and Sayadi pleaded not guilty. Following a lengthy trial in the District Court before Flannery DCJ and a jury, both were found guilty on 15 October 2018.
On 15 March 2019, her Honour sentenced the applicant in respect of the kidnapping offence, and also in respect of three other unrelated offences committed in December 2015 to which he had pleaded guilty ("the December 2015 offences"), namely:
1. demand property by force with intent to steal (7 December 2015) (Crimes Act, s 99(1));
2. knowingly deal with proceeds of crime (between 8 December 2015 and 13 January 2016) (Crimes Act, s 193B(2)). On a Form 1 attached to this count, there was taken into account a number of offences of Inmate possess or use mobile phone, under Summary Offences Act 1988 (NSW), s 27DA(1).
3. participate in a criminal group (between 9 December 2015 and 13 January 2016) (Crimes Act, s 93T(1)).
Her Honour found that the kidnapping offence was objectively very serious and involved a high level of moral culpability, by reason that it was planned and targeted, and involved some sophistication having regard to the use of a blue light on one of the motor vehicles to make observers think they were watching a police operation; balaclavas were used to conceal the identity of the offenders; a number of different weapons were used to assault and threaten Mr Cheung; he suffered a number of injuries, which fortunately were not serious, after sustained and vicious beatings by multiple offenders who were in company; his hands and feet were bound; and he was detained for a period of 39 hours and would no doubt have been in anguish for the whole of that period.
The applicant was liable on the basis of joint criminal enterprise. Her Honour was not satisfied that he was present at the initial detention of Mr Cheung, or at the shed, or when Mr Cheung was first brought to the Conway Road unit, but was satisfied beyond reasonable doubt that he was involved in the enterprise from an early stage, having regard to evidence that two of the vehicles used in the kidnapping were seen near his house two hours prior to the abduction; and that he was present at the Conway Road unit on 11 September 2016 at about 5pm (when he asked Sayadi to pick up some McDonalds) and in the early hours of 12 September 2016 (at least between 1.35am and 1.41am, when he used Bekdache's phone to contact Blazevski and request his presence at the unit at 7.30am in the morning). While observing that there were factors indicative of the applicant having had an organisational role in the enterprise, Her Honour was not satisfied of that beyond reasonable doubt. Her Honour accepted that the actual bodily harm occasioned to Mr Cheung was not the most serious, in the context that actual bodily harm for s 86(3) offences can include very serious bodily harm.
Her Honour accepted that each of the December 2015 offences was a relatively low level example of the relevant offence.
The applicant was aged 33 at the time of the December 2015 offences and 34 at the time of the kidnapping offence; and he had a number of prior convictions involving violent, property, drug and traffic offences. At the time of the December 2015 offences, he was serving a suspended sentence which had been imposed for earlier unrelated offences; and at the time of the kidnapping offence, he was on conditional bail for the December 2015 offences. His younger brother Ali, who had been diagnosed with terminal cancer in 2015, died in April 2018, and this had a very significant impact on him; he said he was devastated by it, and there as a report from a psychologist that the offences occurred in a context that he was overwhelmed by the news of his brother's illness. He had a history of using illicit substances, including cannabis and cocaine, which increased following his brother's diagnosis but diminished following his assumption of responsibility for caring for his disabled sister and their elderly parents. Psychological testing indicated undiagnosed ADHD presenting with co-morbid problems including substance abuse disorder, depression and impulsive aggression.
The applicant had been on bail from 28 January 2016 (when he was released on conditional bail for the December 2015 offences) to 13 September 2016 (when he was arrested in relation to the kidnapping offence) ("first bail period"); and from 30 November 2017 (when he was released on conditional bail for the kidnapping offence) to 15 October 2018 (when he was taken into custody following the verdict of guilty in respect of the kidnapping offence) ("second bail period"). As will appear, her Honour took into account the second but not the first bail period.
Her Honour pronounced indicative sentences as follows:
1. in respect of the offence of demand property by force with intent to steal (maximum ten years imprisonment, no SNPP): 16 months imprisonment;
2. in respect of the knowingly deal with proceeds of crime offence (maximum 15 years imprisonment, no SNPP), and taking into account the matter on the Form 1: 17 months imprisonment;
3. in respect of the offence of participating in a criminal group (maximum five years imprisonment, no SNPP): 16 months imprisonment;
4. in respect of the kidnapping offence (maximum 25 years imprisonment, no SNPP): eight years imprisonment.
Having found special circumstances on the basis that he would need a great deal of assistance upon his release to ensure his successful reintegration into the community, her Honour imposed an aggregate sentence of nine years, with a non-parole period of six years, which was stated to commence on 27 July 2017 and to expire on 26 July 2026, with the non-parole period expiring on 26 July 2023.
[3]
Appeal against sentence
The applicant initially appealed against his conviction in respect of the kidnapping offence as well as seeking leave to appeal against the sentence, but abandoned the conviction appeal by notice dated 10 November 2020. The matter therefore proceeded as an application for leave to appeal against sentence only. There were two grounds of appeal: manifest excess, and failure to take into account a relevant consideration, namely one of two periods during which the applicant was on conditional bail. It is convenient to deal first with the second of those grounds.
[4]
Failure to take into account the first bail period
In the proceedings on sentence, counsel for the applicant submitted that there had been "two periods of very strict bail conditions" which ought to be taken into account; that in respect of the first bail period "[h]e was put on very strict bail conditions which included essentially house arrest", in that he was not allowed to leave his residence unless he was in the company of his brother or his sister, so that (so it was submitted) he lived under a curfew for eight or nine months from 28 January 2016 until his arrest on the kidnapping charge on 13 September 2016; and that during the second bail period "he was placed on again very strict bail conditions which was essentially house arrest, he could leave the house during certain hours in the company of four named people, being his brother, who died during the period of this bail, his sister, his mother, his father, both of whom his mother and father are, of course, his father particularly elderly and neither are particularly well" and was under electronic monitoring, for another 11 or so months. It was submitted that he therefore spent about 19 months on bail, essentially on what might be described as home detention, a form of quasi-custody. It was submitted that this should be taken into account, potentially by treating it as sufficiently accounting for the December 2015 offences:
"And I invite your Honour to take into account as a suggestion, your Honour, or a means by which your Honour could give it proper account, is if your Honour is of the view that that period in terms of quasi custody is a period sufficient to account for those matters, not the principal matter, but the other matters, the demand money and the proceeds of crime charges your Honour may be of the view that that is a period of time of quasi custody which when given proper credit may be sufficient to represent a custodial period for those offences which I've mentioned."
The Crown submissions before her Honour did not address this issue. In the remarks on sentence, her Honour noted (as an aggravating factor) that the applicant was on conditional liberty when he committed each offence. Her Honour recorded the submissions made on his behalf, as follows (emphasis added):
"In the light of that material, Mr Brasch submitted that I would accept that Mr Banat was overwhelmed by the news of his brother's illness when he committed the offences, in the context of probable ADHD. He urged me to accept Ms De Santa Brigida's opinion that Mr Banat's custody would be more difficult because of his unresolved grief and his probably [sic] neurodevelopmental problems. He also urged me to accept that Mr Banat was obviously able to contribute very positively to his family life and the community. He urged me to take into account Mr Banat's very strict bail conditions during the periods he was on bail as quasi custody.
In his submission I would conclude that Mr Banat's prospects of rehabilitation were enhanced as he had strong family support.
He urged me to find special circumstances."
Addressing these submissions, her Honour said (emphasis added):
"Despite the fact that Mr Banat committed each offence when he was on bail, I do accept that the situation is not entirely hopeless, having regard to the material from (1) Cassie Ann Gleeson; (2) his sister; and (3) the convenor of the anger management clinic.
He has not insignificant criminal history, as I have said. However, the matters here are certainly the most serious offences he has committed.
Having regard to his record, I am satisfied that his brother's terminal illness had a serious effect on him. Although I accept that he is still grieving the loss of his brother, his sister does suggest he is making the most of his time in custody and for that reason I am not persuaded that his custody is or will be more difficult for him than for others.
I will take into account his onerous bail conditions in the period November 2017 to October 2018, in determining the indicative sentence I will impose in respect of the detention offence.
I will also find special circumstances because I am satisfied that he will need a great deal of assistance upon his release to ensure he successfully reintegrates into the community."
The applicant submits that her Honour erred in taking into account the second bail period but not the first, that logically both periods should have been taken into account but inadvertently the first was not, and that the first bail period should rationally have affected assessment of the subjective case on the December 2015 offences. The applicant submits that failure to take into account the onerous bail conditions during the first bail period was a failure to take into account a material consideration, and thus error of the kind contemplated by House v The King. [1]
While strict bail conditions may be taken into account by a sentencing court, this is discretionary, and their relevance depends upon the circumstances, in particular as to whether the conditions amount to quasi-custody. [2] Such circumstances, if established, do not mandate backdating, nor a specific discount. [3]
In my judgment, her Honour did not overlook the first bail period. Although it might have been clearer had her Honour explicitly rejected the submission that the first period should be taken into account and given reasons for it, the juxtaposition of her Honour's recitation of the submission that she should "take into account Mr Banat's very strict bail conditions during the periods he was on bail as quasi custody", and her Honour's conclusion that "I will take into account his onerous bail conditions in the period November 2017 to October 2018, in determining the indicative sentence I will impose in respect of the detention offence", reveals not inadvertence, but a determination to reject the submission that the first bail period should be taken into account.
The absence of reasons for the distinction in the approach taken to the two periods requires this court to scrutinise more closely the material, in order to ascertain whether that determination was reasonably open. Once that exercise is undertaken, however, it becomes apparent that there were significant differences between the bail conditions applicable to the first bail period and those applicable to the second bail period, which amply justify a different approach in respect of each.
Contrary to the applicant's submissions, during both periods there was a condition which required that he not leave the premises in which he resided except in the company of one of a number of specified persons (his brother, his sister, and in the second period also his parents). However, during the second period, there was also a curfew, in that he was not permitted to leave the premises at all (that is, accompanied or unaccompanied) between the hours of 7pm and 7am. In addition, during the second period, he was required to wear an electronic monitoring device.
Restrictive accommodation requirements do not necessarily amount to quasi-custody, [4] although arrangements such as residential rehabilitation programs have been recognised as quasi-custodial. [5] In Bland v R, the offender was required to live at home and be in the company of one of a number of prescribed relatives when leaving home, and that was not considered to amount to quasi-custody such as to mitigate the custodial sentence in that case. [6] The appellant cited R v Cartwright [7] as authority for the proposition that bail conditions should be taken into account. In that case, the offender was given credit for 75% of the time spent on bail. However, he had been required to reside away from his Sydney home, in the Australian Capital Territory, in order to be available and accessible to the Australian Federal Police to assist with their enquiries. Those circumstances are much more analogous to a residential rehabilitation program (such as has been recognised as "quasi-custody") than those which affected the applicant, under which he was during the first bail period not only able to reside in (not away from) his home, but also to leave it, so long as he was accompanied.
Although her Honour described the conditions during the second period as "onerous" and took them into account, the sentencing judge did not find that the bail conditions in the present case amounted to quasi-custody. Indeed, explaining a sentence which had been imposed on a co-offender, her Honour said (emphasis added):
"Mr Karass was 63 when I sentenced him and had a relatively limited criminal history which contained no matters of violence. He had been in custody bail refused for 302 days and since his release to bail on 12 July 2017 had been under house arrest. I was satisfied that he was remorseful and his prospects of rehabilitation were good, particularly as I accepted he would do what he could never to go back to gaol. I took into his strict bail conditions as quasi-custody."
In that context, her Honour adopted the terminology of "quasi-custody", which was not adopted (except in recording the applicant's submission) in respect of the applicant. The reason is apparent: as noted by her Honour, when on bail, Mr Karass was "under house arrest"; no such constraint affected the applicant during the first bail period. The most onerous bail condition during the first bail period required the applicant to be accompanied when leaving his home. That is relevantly indistinguishable from the condition considered in Bland, which was held not to amount to quasi-custody and not to require mitigation of the custodial sentence. In distinction, during the second bail period there was a curfew condition.
Thus the imposition of a curfew condition, and the requirement for electronic monitoring, are material differences between the conditions applicable to the two bail periods, justifying taking into account the second period but not the first.
Moreover, during the first bail period, whatever restrictions the conditions purported to impose, they did not in practice prevent him from committing the kidnapping offence, and being present at the Conway Road unit on at least two occasions during the kidnapping. The rationale for taking into account bail conditions is that they correspond to some form of custody, or at least a restriction on liberty. If they are disregarded, then they are not imposing any practical constraint on liberty, and there is less reason to take them into account.
There was no error in her Honour taking into account the bail conditions during the second bail period but not the first.
[5]
Manifest excess
The principles relevant to a submission that a sentence is manifestly excessive are well-established, as Bathurst CJ observed in Kerr v R: [8]
"113 The circumstances in which a sentence will be found to be manifestly excessive are well established. The Court will only intervene if the sentence is unreasonable or plainly unjust, such that the Court may infer that in some way there has been a failure of the sentencing judge to properly exercise the sentencing discretion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [59]. In that context, it must be remembered that an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a different way: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29.
114 As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive."
This ground appears to rely in part on the contention, already addressed, that her Honour failed to take into account the first bail period. Beyond that, reliance was placed on the applicant having had a limited role in the kidnapping offence, the December 2015 offences being at the lower end of the range of objective gravity, and the subjective matters, in particular the impact of the death of his brother and his care responsibility for his elderly parents.
As the sentencing judge found, the kidnapping offence was a very serious offence and involved a high level of moral culpability. Although the applicant was liable for the conduct of other parties to the joint criminal enterprise, the sentencing judge properly had regard to the nature of his involvement. Her Honour did not find that the applicant played a "limited role" in the kidnapping offence, only that her Honour was not satisfied beyond reasonable doubt that he had an "organisational role". Her Honour accepted that the December 2015 offences were relatively low-level examples of the relevant offences, and that is reflected in the indicative sentences specified by her Honour in respect of those offences, and by the circumstance that their cumulative impact was to increase the aggregate sentence above the indicative sentence for the kidnapping offence by only 12 months.
As to the applicant's subjective case, he had a not insignificant criminal history; he was subject to conditional liberty at the time of each offence; and he did not have the benefit of a finding of good prospects of rehabilitation, remorse or reduced moral culpability. His psychological diagnosis of historic undiagnosed childhood ADHD was not a significant mitigating factor in circumstances where the kidnapping was not impulsive. His familial circumstances and hardships, including the illness and death of his brother, and his care responsibilities for his sister and their elderly parents, were taken into account.
In the light of the objective seriousness of the kidnapping offence, no basis for supposing that the sentence was outside the permissible range of the sentencing judge's discretion is apparent. There is no reason to infer from the sentence that there has been a failure in any way on the part of the sentencing judge to properly exercise the sentencing discretion.
[6]
Commencement date
The Crown nonetheless drew attention to an apparent miscalculation in the commencement date of the applicant's sentence. The applicant spent 568 days in pre-sentence custody, being 561 days relating to the kidnapping offence and 7 days to the plea offences, and the sentence should therefore commence with effect from 20 July 2017, rather than 27 July 2017. The Court may correct such a mistake by adjusting the commencement date of the sentence without having to re-sentence the applicant afresh. [9] The Crown accepts that it would be open to this Court to find that the appeal should be allowed to that limited extent.
[7]
Orders
I propose orders that:
1. The applicant be granted leave to appeal against the sentence imposed in the District Court on 15 March 2019;
2. The appeal be allowed, to the extent that the commencement date of the sentence is varied to 20 July 2017, and the expiry date to 19 July 2026, with the non-parole period expiring on 19 July 2023;
3. The appeal be otherwise dismissed.
WALTON J: I agree with the orders proposed by Brereton JA for the reasons given by his Honour. I also agree with the observations of Beech-Jones J with respect to ground 2 of the application for leave to appeal.
BEECH-JONES J: This is an application for leave to appeal against an aggregate sentence of nine years with a non-parole period of six years imposed pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act 1999. Ground 2 of the application contend that the aggregate sentence was manifestly excessive. However, the submissions in support of the ground were exclusively directed to the indicative sentence that the sentencing judge specified for the offence under s 86(3) of the Crimes Act 1900, namely eight years imprisonment. I summarised the principles concerning the challenge to an aggregate sentence by reference to a complaint about an indicative sentence in Lee v R [2020] NSWCCA 244 at [32]. In this case the proportion that the indicative sentence for the offence under s 86(3) of the Crimes Act 1900 (eight years) bears to the total aggregate sentence (nine years) is such that a successful complaint about manifest excess in relation to the former is very likely to result in a successful challenge to the latter. Nevertheless, for the reasons given by Brereton JA, the complaint of manifest excess in relation to the indicative sentence for the offence under s 86(3) must be rejected. I am otherwise not satisfied that the aggregate sentence is manifestly excessive. I agree with Brereton JA's reasons for dismissing ground 1 of the application and for altering the commencement date of the applicant's sentence. I agree with the orders that his Honour proposes.
[8]
Endnotes
(1936) 55 CLR 499; [1936] HCA 40.
Hoskins v R [2016] NSWCCA 157 at [36]; Frlanov v R [2018] NSWCCA 267 at [24], citing R v Webb (2004) 149 A Crim R 167; [2004] NSWCCA 330 at [18].
Hoskins v R [2016] NSWCCA 157 at [36], [39].
R v Perry [2000] NSWCCA 375 at [33]; Bland v R [2014] NSWCCA 82 at [128].
See, for example, Renshaw v R [2012] NSWCCA 91 at [28]-[32].
Bland v R [2014] NSWCCA 82 at [128].
(1989) 17 NSWLR 243.
[2016] NSWCCA 218 at [113]-[114]; see also Hughes v R [2018] NSWCCA 2.
Refaieh v R [2018] NSWCCA 72 at [83], citing Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] and Lehn v R (2016) 93 NSWLR 205; [2014] NSWCCA 255 at [72].
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Decision last updated: 18 December 2020