David EID v R

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Crimes Act 1900 Financial Transaction Reports Act 1988 (Cth)

R v Henry [1999] NSWCCA 111; 46 NSWLR 346 CASES CITED : Huynh v R [2006] NSWCCA 224 Bain v R [2006] NSWCCA 79; 161 A Crim R 36 R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: David EID (Applicant) REGINA (Respondent)

COUNSEL: P Lange (Applicant) G Rowling (Respondent)

SOLICITORS: Adam Houda (Applicant) S Kavanagh (Solicitor for Public Prosecutions)

McCLELLAN CJ at CL SIMPSON J McCALLUM J

5 November 2008 David EID v R Judgment 1 McCLELLAN CJ at CL: I agree with Simpson J. 2 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him on 30 November 2007 in the District Court by Williams DCJ following his pleas of guilty to an indictment containing three counts. The counts were:

3. Conduct dealings to avoid reporting requirements.

He asked, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act ") that a further 2 offences on a Form 1 be taken into account. 3 The first offence on the indictment is an offence against s 97(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of imprisonment for 25 years; the second is an offence against s 193(B)(1) of the same Act, and carries a maximum penalty of imprisonment for 20 years. The third is an offence against s 31 of the Financial Transaction Reports Act 1988 (Cth) and carries a maximum penalty of imprisonment for 5 years. 4 Williams DCJ sentenced the applicant as follows:

Count 1 (taking into account the additional offences): imprisonment for 10 years and 4 months commencing on 8 August 2006 with a non-parole period of 6 years and 6 months, expiring on 7 February 2013;

Count 2 : imprisonment for a fixed term of 3 years commencing on 8 August 2007 and expiring on 7 August 2010;

Count 3 : imprisonment for a fixed term of 2 years commencing on 13 August 2008 and expiring on 12 August 2010. 5 It will be seen that, although his Honour made the second and third sentences partly cumulative, each is fully subsumed in the non-parole period imposed in respect of the first. It is therefore the sentence imposed in respect of the first, and most serious, count, that is the subject of the application for leave to appeal.

The facts 6 Although the offences are of a disparate nature, they were linked and were all part of a chain of criminality that began with the armed robbery. That offence was committed on 28 February 2006. On that day the applicant, in company with another man, and driving a vehicle bearing stolen number plates, accosted two Chubb security officers, Abdul Jodeh and Steve Adams, who were in the process of transferring bags containing a large sum of cash from a business at Mascot in an armoured vehicle. After Adams had placed the bags in the van and secured the door, the applicant pointed a black revolver at his chest. He demanded that the men hand him the bags. The applicant handed the security officers two bags, into which they placed satchels containing the money. The applicant took the bags and drove off, with the other man as passenger. 7 The proceeds of the robbery was the sum of almost $2,000,000. 8 Five days later, on 5 March 2006, the applicant purchased a Lexus motor vehicle for which he paid $27,500 in cash. This constitutes one of the additional offences on the Form 1. 9 On the same day he purchased a BMW motor vehicle, for the sum of $92,490 for which he paid by way of a trade-in, together with $87,750 in cash. This constitutes the offence the subject of the second count. 10 On 21 April 2006, in company with two relatives, he purchased at auction another BMW, bidding $79,979.70. He tendered this sum in cash, but was presented with an Austrac currency declaration, requiring disclosure of the source of the cash. The applicant and his relatives left, and purchased eight separate bank cheques, seven in the sum of $9,900 and one in the sum of $2,700. The purchase of the vehicle was the second offence on the Form 1 taken into account; the purchase of the bank cheques was an attempt to launder the stolen money and avoid the requirements of the Financial Transactions Reports Act, and constitutes the third offence on the indictment.

Subjective circumstances 11 The applicant did not give evidence in the sentencing proceedings. His wife did and his Honour had the benefit of a pre-sentence report, a number of psychiatric reports (concerning himself and members of his family) and two psychological reports. From these, the following subjective circumstances were disclosed. 12 The applicant was born in April 1977, in Australia, to Lebanese parents. He turned 29 during the course of this episode of criminal conduct. He is married and has two children. He has a minor criminal record which the sentencing judge regarded as insignificant. However, he told the psychologist and psychiatrist that he had been arrested in 1998 in connection with a shooting; he was refused bail and remained in custody for 6 months, but was ultimately discharged at committal. Whilst in custody, however, he became severely depressed and developed a heroin addiction; on his release that dependency continued, despite a number of attempts on his part to overcome it. Those attempts included a course of naltrexone, which caused kidney disease resulting in his hospitalisation and a continuing recurring condition. He has also undertaken methadone treatment programmes. Since being taken into custody in respect of the present offences, the applicant has become involved in Narcotics Anonymous and his progress appears to be satisfactory. He has received favourable reports on his prison conduct. 13 Notwithstanding his continued drug use (prior to his arrest) the applicant held and maintained responsible employment in the retail industry, and was regularly promoted. 14 The psychiatrist, Dr Neilssen, considered the applicant was suffering from depression and anxiety, which he attributed to his then current circumstances (in custody awaiting sentencing) but also thought that he had been depressed and anxious for some years before that, "in the context of his general history". 15 This included a matter that the applicant did not disclose to the psychologist, Mr Watson-Munro, nor, it seems, to Dr Neilssen. The applicant's father has long suffered from a number of psychiatric conditions, including major depression, anxiety and schizophrenia. He had made more than one attempt at suicide. 16 The applicant's wife also has suffered from depression and anxiety.

The Remarks on Sentence 17 Williams DCJ set out the facts of the offences, and the subjective circumstances. 18 Correctly, he held that the guideline sentence in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 had no application. This was correct because of the obvious existence of significant planning in the offence, the amount of money stolen, and the applicant's age. 19 His Honour noted a submission that the offence was attributable to the applicant's heroin addiction, but expressed some scepticism about that, relying on the evidence of the applicant's conduct after the robbery in purchasing the motor vehicles, and conversations of which evidence was given. To this might be added his ability to maintain employment. 20 His Honour found special circumstances within s 44(2) of the Sentencing Procedure Act "to a limited degree". He discounted the sentences by twenty percent in recognition of the pleas of guilty, and some assistance given by the applicant to authorities, although his Honour had earlier expressed the view that such assistance as he had given was not of any substantial value. 21 His Honour recognised the need for "a substantial element" of general deterrence in the sentence and stated his intention of reflecting that in the sentence imposed. 22 Rather surprisingly, perhaps, he concluded that the offence fell "within the mid-point area of penalty for this offence". 23 Specifically relevantly to the grounds of the application, his Honour said: "Apart from the obvious planning behind this offence, and no matter what Mr Eid's condition may have been with regard to the effects of heroin, he was the person whose use of the weapon resulted in the victim being forced into the van and being deprived of cash. The weapon was loaded. Had the victim resisted the potential for serious injury or death was substantial."

The grounds of the application 24 Three grounds of appeal were pleaded, as follows: "1. His Honour erred in treating as an aggravating factor the presence of the firearm, even though it was an element of the offence; 2. His Honour erred in failing to sentence the applicant in accordance with the procedure provided for by s 44 of the Crimes (Sentencing Procedure) Act 1999; and 3. The sentence imposed by his Honour was manifestly excessive."

Ground 1: the presence of the firearm as an aggravating factor 25 By s 21A of the Sentencing Procedure Act, in determining sentence, a court is obliged to take into account relevant and known aggravating factors (and mitigating factors). S 21A(2) specifies the aggravating factors to be taken into account. One of these (in sub-paragraph lettered (c)), is the actual or threatened use of a weapon. 26 However the sub-section concludes with the direction that a court is not to have "additional regard" to any such aggravating factor in sentencing if it is an element of the offence. 27 The argument put on behalf of the applicant was that, in the passage of the Remarks on Sentence which I have extracted above, his Honour breached that prohibition and expressly took into account, as an aggravating factor, the presence of the weapon, which was, of course, an element of the offence charged. 28 The submission can be disposed of shortly. On any fair reading of the passage, it could not reasonably be held that his Honour regarded the presence of the weapon as an aggravating factor. The passage appears in the paragraph in which his Honour turned his attention to the guideline sentence of this Court in Henry, and held that it was inapplicable. He then went on to explain why that was so - the criteria specified in Henry were not met, by reason of "the obvious planning". There is no reference to s 21A, and no reference to aggravating factors. Apart from excluding the application of the Henry guideline, the passage is only relevant to his Honour's account of the objective gravity of the offence and the applicant's participation in it. I would reject ground one of the application.

Ground 2: Sentencing Procedure Act , s 44 29 S 44(1) of the Sentencing Procedure Act provides as follows: "(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence)." 30 In sentencing the applicant his Honour said: "The appropriate sentence for count 1 and the Form 1 matters without reduction was in my view 13 years imprisonment. I reduce that to 10 years and 4 months. I specify a minimum period in custody of 6 ½ years to date from 8 August 2006. He is thus eligible for release on 7 February 2013. The total term will expire on 7 December 2016." 31 It is true that this manner of pronouncing sentence failed to comply with the directive of s 44(1); however, it is well established that s 44(1) does not require that the reasoning process begin with the selection of the non-parole period; it is the pronunciation of orders that is required to be done in that way. 32 In R v Cramp [2004] NSWCCA 264 Spigelman CJ described a similar error as: " … a technical error of little or no practical significance".

He expressly held that the error did not affect the exercise of discretion by the sentencing judge, and that, unless some other aspect of the sentence warranted intervention, it was not necessary that the court take that course. 33 I would apply that reasoning to the present circumstances. The intention of the sentencing judge is perfectly clear. There is no error which this Court is called upon to correct.

Ground 3: manifestly excessive? 34 Relied upon in this Court were two cases said to be comparable, in which sentences were imposed after trial; each of those offenders had been sentenced to imprisonment for 9 years: Huynh v R [2006] NSWCCA 224; Bain v R [2006] NSWCCA 79; 161 A Crim R 36. Although appeals against both sentences were dismissed, the sentences were described respectively as "severe" and "very severe". 35 It is true that the applicant has the benefit of the sentencing judge's finding that the offence called for a "mid-range" penalty, although, having regard to the amount of money stolen, and the level of planning inherent in the offence, that finding must be characterised as generous to the applicant. 36 Counsel for the applicant also sought to draw comfort from the standard non-parole period set by Parliament, pursuant to Pt 4 Div 1A of the Sentencing Procedure Act not in relation to offences against s 97, (in respect of which there is no standard non-parole period) but in respect of offences against s 98. S 98 makes offences of armed robbery with wounding, or causing grievous bodily harm, and similarly carries a maximum penalty of imprisonment for 25 years. That standard non-parole period is of 7 years; that is, of course, a standard non-parole period applicable where an offender has been convicted at trial: R v Way [2004] NSWCCA 131; 60 NSWLR 168. 37 Offences against s 98 do have considerable parallels with offences against s 97; however, the Legislature has chosen not to specify a standard non-parole period in respect of s 97 offences, and only limited weight could be given to the s 98 standard non-parole period. But, in any event, the applicant had to be sentenced with due regard to the gravity of his offence, including the very large amount of money taken, and by reference to the maximum sentence prescribed by Parliament. 38 Against a maximum penalty of 25 years, a starting point of 13 years, before reduction for the pleas of guilty, was precisely the mid-point which his Honour determined was appropriate. 39 In my opinion it has not been shown that the sentence was manifestly excessive. 40 I would reject this ground of appeal. 41 The orders I propose are:

(2) appeal dismissed. 42 I would, however, re-formulate the sentence to accord with the requirements of s 44(1). I therefore propose the following additional order:

(3) in respect of the first count, the applicant is sentenced to imprisonment with a non-parole period of 6 years and 6 months, commencing on 8 August 2006 and expiring on 7 February 2013, and a balance of term of 3 years and 10 months, expiring on 7 December 2016. 43 McCALLUM J: I agree with Simpson J.

07/11/2008 - Originally citation quote attributed to Gleeson CJ - now reads Spigelman CJ - Paragraph(s) 32

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