El Khouli v R

Overview of facts

1. By way of overview, there was no dispute that the café premises caught fire and were substantially destroyed in the early hours of 3 October 2012. There was evidence that no traces of any accelerant were found. There was evidence that the gas lines were in the "on" position and the knobs of the gas spindles on the grill were missing.
2. There was no dispute that Mr Shousha was very seriously burnt on 3 October 2012. Indeed, he suffered severe burns to his face and both hands, spending three weeks in hospital requiring split skin grafts.
3. Mr Shousha had married Ms Amy Jones in a ceremony at the café in May 2012. Mr Shousha lived with the applicant and his de facto partner, Ms Van De Werff, in Hornsby, and the evidence was that Ms Jones sometimes stayed there, but sometimes stayed at Davistown in the Central Coast where she worked. On the night of 2 October 2012, she had been staying at Davistown, when at around 3:00am she was rung by Ms Van De Werff and told "Amy, there's been a fire. Ahmed's burnt, you need to come and see him, you need to come to Hornsby". Ms Jones drove to Hornsby. Her mobile phone records showed calls involving her handset received by stations at Erina at 3.14am and Gosford at 3:24am, when she called Mr Shousha to say she was coming. She saw Mr Shousha with his hands burnt, his eyebrows burnt off and his eyelashes missing and his face red. She drove him to her home at Davistown, arriving some time after 5am. She took photographs of his hands and was given Burnaid by a chemist. Ultimately, Mr Shousha took himself to hospital later that day by ambulance.
4. Ms Jones said that before speaking with police, she met the applicant who said they "needed to come up with a plan otherwise Mr Shousha would be in trouble and be charged with arson". Ms Jones was interviewed by police at around 7pm that evening, and told a story, as suggested by the applicant and Ms Van De Werff, to the effect that she had picked him up from the train station earlier in the evening, at around 10pm, as his car wasn't working. Ms Jones accepted in the interview that she called Mr Shousha's phone at 2:57am and 3:24am of that morning: "Q960 O.K. And I'm going to put another allegation to you, I'll put it to you that these phone calls at 2:57am, was actually a call to Ahmed and that [h]e wasn't at your house at the time. A No, he was. Q961 He definitely was? A Yeah, definitely was, yeah, he was at my house. … Q1005 At 2.57am will that phone bill say that you were where, where will it say you were? A At Davistown. Q1006 O.K. And where will it say Ahmed was? A At Davistown. Q1007 And what about at 3.24am? A Still at Davistown. Q1008 O.K."
5. Contrary to what Ms Jones told the police at that time, when the appeal was held there was no dispute that in the early hours of 3 October 2012, Mr Shousha was present in premises occupied by Mr El Khouli and his de facto partner at the time, Ms Holly Van De Werff. A series of internet searches were conducted on Ms Van De Werff's mobile handset at times recorded as "2/10/2012 4:37:36pm (UTC+0)" and "2/10/2012 5:05:23pm (UTC+0)". Those times appear to correlate with 2:37am - 3:05am on 3 October 2012. The searches led to the browser in the handset visiting websites titled "SIMPLE Burn Treatment", "Burns: burn on hand from melting flaming plastic, third degree burn, open palm", "Burn treatment - How to Treat a Burn video" and "treat a burn - wikiHow".
6. Ms Jones gave evidence before the jury that what she had told the police was a lie. For example, she gave this evidence: Q. Thank you. And obviously in relation to the call at 2.57am on the morning of the 3rd, what you say in this interview is untrue, I take it? A. Yes. Q. And in fact, it was a lie? A. Yes, it was. Q. Thank you. At various places towards the end of the interview, you say that you did not know that Mr Shousha had any burns until, in effect, the police tell you about them; that was obviously a lie, that you didn't know? A. Yes, it was a lie.
7. Ms Holly Van De Werff was the de facto partner of the applicant, having married him in an Islamic ceremony on 25 November 2011. She shared a bedroom with him. She worked at the café as a waitress. She gave evidence that she had lied to police when interviewed immediately after the fire, including that she had lied when she said she had not seen Mr Shousha that evening. She said in cross-examination that she had been promised that she would not be arrested in relation to any lies she had told in her first interview.
8. In her evidence before the jury, Ms Van De Werff said that she was watching a television show on the evening of the fire, and went to bed with the applicant. She said she eventually fell asleep, and then woke up when the applicant was getting up. She said she did not see where he went, but assumed he was going to the toilet. She went back to sleep.

The appeals against conviction and sentence

1. The appeal against conviction is based on three grounds. The first is that the verdict of the jury was unreasonable or could not be supported having regard to the evidence, with specific attention being given to (a) the paucity of evidence placing the applicant at the location of the fire, (b) the paucity of evidence as to causation of the fire and the location of its ignition, (c) the lack of evidence concerning the existence of a joint criminal enterprise, and (d) the lack of evidence in respect of any actual or potential financial gain to the applicant. The second is that "the judgment of the court of trial is wrong on questions of law", although only one question was ultimately pressed when the matter was heard. That was: "The Court erred in failing to satisfy itself that Holly Van De Werff was aware of the effect of section 18 of the Evidence Act 1995 (NSW), pursuant to the Court's obligation that is provided for in subsection 18(4) of the Evidence Act 1995 (NSW)."
2. The third ground is that there was a miscarriage of justice, and some 13 particulars are relied upon. Five of them correspond to the grounds already identified, and a sixth corresponds to a ground which was expressly abandoned. Of the remaining seven, six concern directions that were given by the trial judge to the jury, and all of these seek to raise matters which had not been raised at trial, to which, accordingly, r 4 of the Criminal Appeal Rules applies. The remaining particular is that the other party in the alleged joint criminal enterprise, Mr Shousha, was permitted to be tried separately.
3. The applicant also seeks leave to appeal against his sentence, relying upon what he says is a "gross, marked and glaring disparity" between the sentence imposed upon him and the sentence of imprisonment for four years with a non-parole period of two years imposed upon Mr Shousha. He also says that the indicative sentences and the aggregate sentence are manifestly excessive, and that the totality principle was offended.
4. Rather than summarising the entirety of the (voluminous) evidence in the 25 day trial, which was relatively well populated with documentary evidence as well as witnesses, the most convenient course will be to address such of the evidence as is relevant while addressing the various grounds upon which the applicant seeks leave to appeal.

Ground 1 - Paucity of evidence

1. The applicant submitted that there was a weak Crown case placing him at the location of the fire. This turned upon the evidence of Mr Mostyn, who operated two nearby businesses. He said that he recognised the applicant and one or more other people present in the café premises late that evening. His evidence was that "most nights" around 10:30 or 11:00 he would drive past both his premises "just to ensure that there wasn't people hanging around". Mr Mostyn lived nearby and was woken by the explosion shortly after 2am.
2. It is of course difficult to assess the full force of Mr Mostyn's evidence from the transcript alone. He seems to have been quite definitive about his identification, saying that he saw the same person behind the counter whom had once served him when he had bought a coffee in the store, and who he regularly saw during the course of his business. It is true that Mr Mostyn was uncertain as to whether there were two, three or four people in the shop that evening. It was repeatedly put to him in cross-examination that he might have been mistaken. He gave this evidence in response: "Q. See, what I suggest to you, sir, is that the reason you can't describe the other persons in the shop was, as you agree, that you had a fleeting glance of what was going on in the shop as you drove past. A. My, from what I saw was the same person that was behind the counter. The other people I didn't recognise. Q. Well, that was not the question. The question was, isn't it the case you can't describe any of the other persons, however many there were in the shop because you only had, as you agreed earlier, a fleeting glance of what was going on in the shop as you drove past? A. Yes. Q. And what you say is recognition of the same person you saw at the counter is almost certainly a, withdraw that. What you say is recognition may in fact be an error that you made because you had such a short period of time to observe what was in there and because of the lighting and the conditions in which you were making the observation. A. Mm. I disagree. Q. Well, do you agree it's a possibility that you may be mistaken or not? A. Could be a very slight possibility. However, being in the area for so long and seeing the same person that works behind the counter on most occasions, it wasn't hard to make that assumption."
3. Mr Mostyn was not the only witness whose evidence connected the applicant with the fire. The Crown adduced evidence from two witnesses that a man had been seen on Dural Street, Hornsby moving towards a parked car at approximately 2am on 3 October 2012. The café premises were located on 199 Pacific Highway, Hornsby. Dural Street intersects with the Pacific Highway at a point close to the café premises.
4. Ms Brodie-Grant, who passed away before the trial, was a resident of Dural Street, Hornsby at the time of the incident. She provided a statement to police on 5 October 2012, which was read into evidence, in which she said that she was awoken on 3 October 2012 at around 2am by a loud noise. Looking from her window, she saw a man running along Dural Street and getting into the passenger seat of a car. She could not see the figure driving the car, but believed the car to be a sedan shape and was "confident it was not black or white." Not long after the car had driven off, she heard "loud explosions" and noticed a burning building.
5. The Crown also called Mr Aguilera as a witness. Mr Aguilera resided in an apartment block on Dural Street at the time of the incident. At 2am he heard a loud explosion. He went to his balcony and saw "a red glow and smoke filling the air". Mr Aguilera next heard two male voices speaking a foreign language which he described as "[m]aybe Indian or some sort of Arabic". One of the voices came from a male figure who sounded panicked, and was about two metres away from a car. Mr Aguilera described the car as being "a red vehicle with - it definitely had a rear spoiler, and a sedan, obviously." He thought the car was a Hyundai.
6. Mr Shousha was the owner of a red Hyundai motor vehicle. Footage captured on 3 October 2012 from Westfield's Hornsby CCTV, located 330 metres from the crime scene, depicts a red vehicle travelling north at 1:40am. At 2:08am, footage from the same CCTV depicts a red car travelling in the opposite direction (towards the applicant's house). Both vehicles appear to resemble Mr Shousha's Hyundai very closely.
7. There was thus a body of evidence connecting Mr Shousha and another man to the fire. And it is known that Mr Shousha returned to the premises where he and the applicant lived immediately after the fire.
8. The second aspect of paucity of evidence was as to the mechanism of the fire and, in particular, the place of the ignition. It is fair to say that the expert evidence adduced by the Crown was only that the explosion was consistent with the leakage of gas from one or more of the items in the store. There was evidence that if all six burners in the cooktop had been left on for some two hours and 22 minutes, that would achieve what one expert described as the minimum ignition point. There was also evidence, obtained from examining the premises after the fire, that not all of the burners had been left on.
9. The applicant emphasised that the Crown had failed to establish (a) the source of the ignition (a pilot flame was the most likely candidate, although other possibilities were the arc when a light switch was turned off), (b) the way by which a concentration of gas had accumulated in the store and (c) accordingly, when the gas had begun to accumulate. Indeed, at one stage it was put that the Crown had failed to exclude to the criminal standard the possibility of accidental explosion.
10. The Crown case did not require establishing to the criminal standard precisely how, when and by what mechanism the premises came to be destroyed by fire. It is known that the premises were destroyed by fire. It was necessary for the Crown to prove that the applicant had caused that to occur (either personally, or as part of a joint criminal enterprise) for the purpose of obtaining a financial gain.
11. Significantly, it is also known that Mr Shousha was in the premises when the explosion occurred (the applicant properly, not to mention realistically, conceded that given the timing and extent of Mr Shousha's burns, any other finding would be perverse).
12. It may readily be assumed that the fire was accidental insofar as it was no one's intention that Mr Shousha be severely burnt. But that does not stand in the way of there being a case capable of establishing to the criminal standard the counts for which the applicant was standing trial.
13. Deferring for the time being the third aspect of this ground, the fourth aspect was based on what was said to be the lack of evidence of any actual or potential financial gain. True it is that the named insured was Mr Shousha. However, on 3 October 2012 - the same day as the fire - Mr El Khouli personally attended an insurance broker and signed and lodged a claim form, styling himself as "Manager". The policy extended to business interruption, so that on any view he had a financial interest in the payout. The Crown called Mr Paul Donnelly, who operated an insurance broking business, who recalled Mr El Khouli calling upon him to take out the policy, and that although the named insured was Mr Shousha, it was Mr El Khouli who completed the form, and that on 3 October 2012, when making a claim, Mr El Khouli had "said something along the lines of, 'when will I get my $50,000?' I am a bit vague on that". In cross-examination, he confirmed that he had an independent recollection of Mr El Khouli saying "why can't I get the $50,000 now?". (In fact Mr Donnelly gave evidence that Mr El Khouli personally completed not one but two applications for insurance. The first, in February 2012, did not proceed, and Mr Donnelly gave evidence that Mr El Khouli said that the premium was too expensive. Mr El Khouli returned and cancelled the policy, with a full refund being given. The insurance on the premises which were burnt was entered into, again personally by Mr El Khouli, on 14 March 2012.)
14. The abundance of evidence of Mr El Khouli's involvement in the inception and claiming of insurance was sufficient, when considered in combination with the balance of the Crown case, to permit the jury to infer that he, as well as Mr Shousha, stood to make a financial gain from the fire.
15. The third aspect of this ground was the lack of evidence of a joint criminal enterprise involving the applicant and Mr Shousha. But this was a circumstantial case, and the jury was entitled to have regard to the entirety of the evidence. That evidence included the applicant's role in causing Ms Jones and Ms Van De Werff to lie to police, the decision to take Mr Shousha away from the applicant's house in the immediate aftermath of the fire, and the applicant's personal role in claiming on the insurance the following day.
16. Contrary to the submissions made in support of this ground, I regard this as a strong circumstantial case. The Crown adduced evidence which placed the applicant in the premises late in the evening of the fire. There was evidence pointing to Mr Shousha being in the premises at the moment of ignition. The applicant's conduct in causing Ms Jones and Ms Van De Werff to lie and then claiming on the insurance policy are consistent with a joint criminal enterprise. Indeed, I cannot readily contemplate another hypothesis not involving a joint criminal enterprise, although that is not the test. Certainly, there is no absence of evidence on any element of the Crown case on count 1.
17. No separate submissions were made as to the paucity of evidence in relation to the convictions of intending to pervert the course of justice. For completeness, and in any event, I note that the evidence of Ms Jones and Ms Van De Werff was capable of being accepted by the jury and sustaining those convictions. It was incontestable that both women had lied to the police in their first interview. It was open to the jury to find that they had done so because the applicant had asked them to do so. It was also open to the jury to find that the reason he had done so was to attempt to pervert the course of justice.

Ground 2 - Evidence Act 1995 (NSW), s 18

1. The sole aspect of this ground that was pressed concerns the evidence given by Ms Holly Van De Werff, who at the time of the fire was Mr El Khouli's de facto partner, and had been married to him pursuant to an Islamic ceremony.
2. Section 18 of the Evidence Act 1995 (NSW) relevantly provides: "18 Compellability of spouses and others in criminal proceedings generally (1) This section applies only in a criminal proceeding. (2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required: (a) to give evidence, or (b) to give evidence of a communication between the person and the defendant, as a witness for the prosecution. (3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later. (4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person. (5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury. ..."
3. It was common ground that the section (and, therefore, the obligation in s 18(4) upon the Court) turned not on whether Ms Van De Werff was the applicant's de facto partner in October 2012, but in November 2016 when she was giving evidence. This is the force of the words "when required to give evidence" in s 18(2).
4. Ms Van De Werff gave evidence only after being told of her right to object on the basis of self-incrimination, and confirming that she wished to proceed. At no stage was any submission put that the primary judge needed to satisfy himself that she was aware of any right to object to giving evidence based on the fact that she was in November 2016 Mr El Khouli's de facto partner.
5. This proposed ground of appeal is that, notwithstanding the absence of any objection, it was incumbent upon the primary judge to satisfy himself that she was aware of that separate basis, in addition to privilege against self-incrimination, to object to giving evidence.
6. There is no reason to doubt that counsel then appearing for Mr El Khouli had clear instructions as to whether there was a continuing de facto relationship between his client and Ms Van De Werff. How otherwise could he have cross-examined her? In this Court, Ms Bateman confirmed that there was no positive evidence to which she could point which suggested that in 2016 (as opposed to at the time of the fire) the relationship was subsisting.
7. There is in fact evidence pointing in the other direction. The primary judge recorded in his remarks on sentence: "In 2011 the offender married Holly Van De Werff. When he was released on bail on 20 December 2012 it was a condition that he not have contact with her. He has not been able to see her." The bail condition supports the inference that the pair were no longer living together. This is also borne out by a report dated 4 April 2017 tendered at the sentencing hearing, in which a forensic psychiatrist recorded that Mr El Khouli had told her that "he is not allowed to see [his second wife] as she is a police witness in the case against him and that he is not allowed to contact her".
8. Further, let it be assumed that s 18 applied in November 2016. Only if Ms Van De Werff, who had not objected to giving evidence that would incriminate herself, would nonetheless have made a different choice if she had been aware of her right under s 18, could there be a miscarriage of justice. But on the material before this Court there is no basis to infer whether Ms Van De Werff was aware of any additional right to object to giving evidence, or if there was such an additional right, whether she would waive it.
9. Those matters combined present an overwhelming case against the grant of leave pursuant to r 4 of the Criminal Appeal Rules. This is a stronger case than that considered in Mulvihill v R [2016] NSWCCA 259 at [134], where it was said: "A consideration of this submission reveals that leave should not be allowed to raise this point on appeal when it was not raised at trial. In the absence of this ground being raised at the trial, there is no means of ascertaining whether Ms Mulvihill was not aware of her right to object to giving evidence. To the extent that there is material available, it suggests that she was very willing to give evidence against her estranged husband. She may have been advised of her right to object but decided not to exercise it. Most significantly, in circumstances where neither party raised s 18 and where it would have appeared to the trial judge that Ms Mulvihill was actively assisting the prosecution, it cannot be inferred from the absence of any express reference by her Honour to s 18(4) that her Honour was not satisfied in terms of that sub-section. Her Honour might have believed that the Crown advised all witnesses in Ms Mulvihill's position of that right as a matter of course but Ms Mulvihill did not wish to raise it because she wanted to assist the prosecution of her estranged husband. If none of the Crown, the witness or the accused raised any issue about Ms Mulvihill giving evidence or made any reference to s 18, then it does not necessarily follow that her Honour would have felt any compulsion to record her formation of the opinion referred to in s 18(4) in the transcript."
10. When that decision was raised for consideration by the applicant (as it was in the Crown's written submissions), counsel's response was to assert that it was "wrong": "LEEMING JA: Very well. Well if you wish, speaking for myself, to persuade me not to follow a unanimous decision of this Court on the same point, you have to do more than simply say it's wrong. [There's] nothing in your written submissions about this? BATEMAN: No, not really other than just rely upon s 18(4). I'm taking it no further than - I'll just be repeating my submissions to be frank ..."
11. Substantially more is required to persuade this Court to depart from one of its earlier decisions. I am not persuaded that the refusal of leave in comparable circumstances in Mulvihill v R was plainly wrong. To the contrary, it was, with respect, plainly correct.
12. I would refuse leave, pursuant to r 4 of the Criminal Appeal Rules, to rely upon ground 2. The absence of complaint at the time, the absence of any suggestion in the evidence that s 18 was engaged, and the absence of any evidence that if anything had been said at the time it would have made a jot of difference to the witness make this an overpowering case for refusing leave.

Ground 3 - Miscarriage of justice

1. As previously noted, six "particulars" within ground 3 duplicate matters raised in grounds 1 and 2. For the reasons already given, those matters do not give rise to any miscarriage of justice.
2. Particular 3.8 is that Mr Shousha was permitted to be tried separately. That occurred following an application made on 19 October 2016 which, so far as appears from the transcript, counsel for the applicant did not oppose. The primary judge gave an ex tempore judgment on the day, and his trial proceeded.
3. The applicant is bound by the order separating his trial from that of Mr Shousha. The decision was one from which an interlocutory appeal would lie, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). No application was made for leave to appeal. Any application would be attended by not only the difficulties attaching to a challenge upon a discretionary decision of the primary judge, but also the fact that no opposition was articulated at the time.
4. There may well have been forensic reasons for taking that course. It may not have been known whether Mr Shousha would have given evidence at a joint trial. If he did, his evidence might well be incriminating of the applicant. This Court was told without objection that Mr Shousha in fact did give evidence at his trial, and this is consistent with a statement in the sentencing reasons to the effect that "the jury clearly did not accept the offender's account". This may well explain why the applicant did not oppose the application for separate trials.
5. In addition to the foregoing, the fact of the matter is that on 2 November 2016 (after the decision separating the trials) the Crown presented an indictment containing four counts directed only to the applicant. There was no challenge to the presentment of that indictment, nor could there be. It follows that there was no right to a joint trial.
6. Further, contrary to the entirety of the foregoing, the applicant was unable to point to any prejudice, let alone demonstrate a miscarriage of justice, by the course that was taken. It was said that both should have been tried together, so that the jury could hear the "whole story": "BATEMAN: The highest I could put it really I think is that one of the matters which should have weighed heavily upon the judge in determining this, that is the trial judge, that in the interests of justice demanded that the jury should have the whole picture presented to them and not half of it, as is indicated in the decision of Collie. However, I do accept that there are, and here there was, a countervailing interest which was the interest of Shousha in being dealt with fairly. And I accept that it is discretionary, so I really don't wish to labour that particular ground."
7. The remaining six "particulars" of this ground all concern directions which, so it is said, should have been given by the primary judge.
8. Particular 3.7 complains that the direction which was given concerning Ms Van De Werff giving evidence by AVL should have been given immediately after her evidence, as well as in his Honour's summing up. No complaint was made as to the form of the direction, only that it should have been given twice. This was not developed either in writing or in oral submissions. There could not possibly be any reason to think that there was a miscarriage of justice by reason of the failure to give the same direction twice, when it was given once and counsel who appeared at trial made no application for it to be given twice.
9. Two of the particulars (3.9 and 3.10) concern a non-responsive portion of an answer given in evidence in chief by one witness, Ms Duval. In its context, the evidence was as follows: "Q. Had you met Ahmed El Khouli before? A. Once, yes. Q. Where had you met him? A. At her home when I dropped her other daughter over to see her mother, Ahmed was there after he'd been bailed from gaol. Q. Just a minute, please. A. Sorry. Q. I asked you where did you meet him. A. I apologise. I was giving too much information, I apologise. Q. Please follow my question. Where did you meet him? A. I met at Joanne's home."
10. No objection was taken at the time, and indeed, no complaint seems to have been made throughout the entirety of the trial (the answer was given on the ninth day). It is far from clear how audible the answer was. Notoriously, when as regularly happens counsel and witness speak at the same time, the transcript does not record that fact, but separately records what each said. It is possible that counsel's words "just a minute, please" were said during Ms Duval's evidence about the applicant being bailed from gaol.
11. In a case such as this, a question will arise whether it is necessary or appropriate to warn the jury immediately, or to do so at the end of the trial, or else to say nothing at all. In an extreme case, evidence might cause the jury to be discharged, if it could be shown that the prejudice was incapable of being cured by a direction. In all such cases, those present at the trial are far better placed to assess the appropriate response (if any).
12. The Crown submitted that Ms Duval's evidence that the applicant had been on bail was not overly prejudicial, and that what was said would have been understood by the jury to relate to the offences for which the applicant was standing trial. There was no suggestion that he had committed any previous offences. Further, the absence of any request for a direction is, as the Crown submits, a strong indication that those best placed to assess whether there was any material prejudice had formed the view that no direction was sought: see Greenhalgh v R [2017] NSWCCA 94 at [42].
13. Rule 4 applies to this ground. For those reasons, no sufficient basis has been shown to grant leave.
14. Particular 3.11 complains that the trial judge failed adequately to direct the jury concerning Ms Abdo's motive to lie. This may be addressed very concisely. Ms Abdo was the applicant's first wife. She had been involved in contested family law proceedings with him. Her evidence displayed a measure of hostility to the applicant.
15. His Honour gave a direction, in a form to which the defence agreed, concerning Ms Abdo's motive to lie. The direction was given immediately before the jury retired, at a time when it might be thought to have greatest weight.
16. The applicant's complaint in this particular is that the direction should have been given immediately after Ms Abdo gave evidence. But, once again, no request was made for any such direction. Once again, no basis has been established to grant leave pursuant to r 4 in relation to a matter where the complaint was only as to the timing of a direction which was in fact given, in circumstances where no application for that direction to be given at any earlier time was ever made.
17. Particulars 3.12 and 3.13 complain about the failure to adequately direct the jury concerning the possibility that both Ms Van De Werff and Ms Jones might have been reasonably suspected of being criminally concerned with the third and fourth counts on the indictment. Both women gave evidence that the applicant had told them to lie to police concerning the whereabouts of Mr Shousha on the evening of the fire. Directions were given about the evidence of each woman. The trial judge directed the jury that they should "scrutinise" Ms Van De Werff's evidence and that of Ms Jones should be considered "with care". Further, the trial judge instructed the jury that the police had enough evidence to charge each woman with a criminal offence, and the primary judge warned the jury that evidence given by such witnesses may be unreliable.
18. Once again, the applicant's complaint is not with the form or substance of the directions given by the primary judge, but with their timing: it is submitted that they should have been given immediately after each woman gave evidence. Once again, no application was made at the time for any such directions.
19. Leave should not be granted to permit the applicant to raise these questions of timing.

Ground 4 - Sentence

1. Accordingly, it is necessary to turn to the applicant's application for leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to appeal against the sentence imposed.
2. The first way in which the applicant submits error attends the sentence which was imposed is based on a "gross, marked and glaring disparity" between his sentence and that imposed upon Mr Shousha. In submissions, attention was given to the indicative sentence of 7 years imposed in relation to the first count, because Mr Shousha (who was in hospital) played no part in the false evidence given to the police. Some caution must be exercised in comparing an indicative sentence (which is but an element of the actual sentence imposed on the applicant), with the actual sentence imposed on Mr Shousha. But, even so, it is clear that mere disparity is not sufficient. Considerably more must be shown where, as here, there are materially different circumstances attending both convictions. 1. First, the sentencing judge found that the applicant had contemplated the offence for some time, although his Honour was not able to be satisfied beyond reasonable doubt about when precisely the intention was formed to commit the offence. That contrasts with the finding applicable to Mr Shousha, which was that, so far as he was concerned, the joint criminal enterprise commenced when he was awakened by the applicant a short time before the offence was committed. It follows that, notwithstanding the imprecision as to time, the sentence imposed upon the applicant reflected a deal of planning - a matter which is of significance in offences of this nature - while that imposed on Mr Shousha reflected none. 2. Secondly, the applicant had a prior criminal record, including for offences of fraud, while Mr Shousha had no prior record. 3. Thirdly, Mr Shousha obtained the benefit of the significant extra-curial punishment he suffered, by reason of the serious injuries sustained during the commission of the offence.
3. Bearing in mind those matters, there is ample explanation for the different sentences. That conclusion is strengthened by the fact that the judge who sentenced Mr Shousha did so with the advantage of knowing the applicant's sentence, and referred to the fact that he was substantially less culpable, his absence of criminal record, reasonably good prospects of rehabilitation, serious injuries and delay coupled with rigorous bail conditions. Her Honour said: "For the following reasons I intend to impose a significantly lesser sentence in respect of this offender: 1. I am satisfied that his culpability is substantially less than Mr El Khouli's; 2. As Mr El Khouli has a criminal record whereas this offender does not; 3. I have found that this offender has reasonably good prospects of rehabilitation whereas Judge Jeffreys found Mr El Khouli's prospects were only reasonable; 4. Mr Shousha suffered serious injuries in the commission of the offence; and 5. I have taken into account in Mr Shousha's favour the delay and his rigorous bail conditions."
4. Secondly, the applicant submitted that each of the indicative sentences was manifestly excessive. This submission was made by reference to sentencing statistics. In so far as complaint is made of the sentences for counts 3 and 4, there is nothing in it. During the oral hearing, Ms Bateman accepted that the indicative sentences fell within the median of the range of sentences imposed for those offences. On no view are they manifestly excessive.
5. The gravamen of this ground was based upon the sentence for count 1, which was relatively high, according to the statistics. But the fact that a sentence falls towards the top of a statistical range is not determinative of manifest excess: see Owen v R [2017] NSWCCA 54 at [76]; Kresovic v R [2018] NSWCCA 37 at [44].
6. There were matters which pointed to a high level of seriousness in this offending, which will not have emerged from the reasons so far. They include: 1. substantial loss not only to the rented premises, but the adjacent premises were completely destroyed, and other neighbouring premises damaged; 2. the offence in count 1 was committed without regard to public safety and could easily have injured persons other than Mr Shousha; 3. plainly the offence was planned; 4. the conduct giving rise to counts 3 and 4 succeeded, causing two women to lie to police.
7. Those matters all point towards a sentence reflecting both general and specific deterrence. Further, the applicant has an extensive record of obtaining money by deception.
8. While the sentence is far from lenient, in those circumstances, I am not persuaded that it is manifestly excessive.
9. Thirdly, it was said that "the totality principle was offended". This was articulated only briefly, in written and oral submissions. It was put that there should have been a higher degree of concurrency than was reflected in the indicative sentences. It was said in writing that "the combined sentences exceed that which is warranted to reflect the totality of the three offences. The aggregate or overall sentence is not just and appropriate. The totality principle is offended." The gravamen of what was put orally was: "In respect of the totality issue, so standing back and having a look at the sentence at the end of the day, just prior to two passing sentence, a sentence of eight and a half years is in my submission offends the totality principle. The way in which his Honour went about the task is - it doesn't indicate the extent of accumulation or non-accumulation as amongst the particular offences. The submission is that there be - that it's appropriate that there be fairly substantial accumulation - sorry, concurrence of the two 319 sentences and that there be some concurrence of the 319 sentences with the destroy damage by fire offence."
10. His Honour expressly said that he had regard to totality. Insofar as there was a complaint about failing to indicate the extent of accumulation or concurrency, that is an aspect of the aggregate sentencing procedure. Indeed, since the introduction of aggregate sentencing, it has been said that absolute precision in specifying the degree of accumulation would be tantamount to expressing commencement dates for each indicative sentence contrary to one of the rationales for introducing this form of sentencing: see ZA v R [2017] NSWCCA 132; 267 A Crim R 105 at [88] and the cases there cited. Further, there was a deal of notional accumulation implicit in the aggregate sentence imposed, which well reflected the fact that the counts 3 and 4 occurred separately from and after the fire, but themselves overlapped in time and subject matter.
11. Although there should be a grant of leave, I would dismiss this ground.

Orders

1. For those reasons, I would extend the time within which to appeal to 8 March 2019, grant leave to appeal, confined to proposed grounds 1 and 4, and otherwise refuse leave. I would dismiss the appeals against conviction and sentence.
2. I propose these orders: 1. Extend the time within which to appeal to 8 March 2019. 2. Grant leave to appeal, confined to grounds 1 and 4, and otherwise refuse leave. 3. Dismiss the appeals against both conviction and sentence.
3. GARLING J: I agree with the orders proposed by Leeming JA for the reasons which he gives.
4. WRIGHT J: I agree with Leeming JA.

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