Fayad v R

Court of Criminal Appeal (NSW)|2017-03-10|Before: Simpson JA, Button J, Adams J

Judgment

SIMPSON JA: I agree with N Adams J.
BUTTON J: I agree with N Adams J.
N ADAMS J:

The facts

A nine-page document headed "Agreed Facts" was tendered as constituting the facts upon which the applicant was to be sentenced. That document included detailed facts of not only the principal offence but also the accessory matter on one of the Forms 1. The applicant's counsel before this Court submitted that the agreed facts should not have been fully extracted by her Honour as they provided too much detail concerning the shooting of Mr Rooke. I propose to set out the agreed facts so that the applicant's complaint in this regard can be fully understood: "Aggravated in company break and enter with intent to steal Events preceding 1. On 14 May 2013 at approximately 1:45pm the offender Wassim Fayad and co‑accused Milad Al-Ahmadzai were together at Bankstown Police Station as recorded in CCTV footage. 2. At 7:50pm the offender and Al-Ahmadzai spoke on the phone. Al‑Ahmadzai said "Tomorrow me and you will try to go job hunting eh." The offender replied "Yep we got to do that." The term "job" is a reference to the ram raid. 3. At 11:03pm the offender and Al-Ahmadzai spoke on the phone again, an excerpt of the conversation is as follows. "WF: Sorry, brother, if I woke you up, man. MA: No. WF: I just wanted to let you know, eh, my brother's wife is very sick. MA: Okay. WF: My brother's wife is sick and her son just finished work and she asked me to go pick him up. I got to pick him up, and, um, you know, he might be running a little bit late, you know. MA: Ah, it will be good, Allah willing. He's running late, no worries." 4. In this conversation the offender was informing Al-Ahmadzai that the third co‑offender was running late. The conversation continued: "WF: How was work today? MA: Yeah praise be to Allah, man. Oh bro, you know me. I'm dying from work let's quickly go find something, eh? WF: (laughs) (indistinct). MA: Mmm. WF: Alright, alright. MA: (indistinct) just got out of the shower, bro. I'm gonna collapse, man, I'm that tired. WF: It will be good, Allah willing. Alright, just be patient, ah, with the brother. MA: Yeah, yeah. For sure, for sure." Stolen vehicles (Form 1 offences) 5. Shortly thereafter the offender drove Toyota Camry BR40UX to Auburn where he picked up Al-Ahmadzai. At some stage a third unidentified male co‑offender also entered the car. 6. The offender drove Al-Ahmadzai and the unidentified male to Rowe Street, Eastwood, where one of them stole blue Ford Econovan AG91LK. The offender also drove them to Cottonwood Crescent, North Ryde, where one of them stole white Toyota Tarago RZW967. The offender then drove to Pembroke Road, Marsfield, where he parked the Camry. Ram Raid 7. On 15 May 2013 at approximately 3:50am, the offender, Al-Ahmadzai, and the unidentified male drove in convoy to the Macquarie Shopping Centre. The white Tarago was driven into the shopping centre crashing through the glass front doors. It was driven through the shops and crashed directly into a group of free-standing ATMs in an attempt to dislodge them. The vehicle was then reversed and driven into the ATMs for a second time. 8. The blue Econovan was driven into the shopping centre behind the white Tarago. It did a U-turn and reversed close to the ATMs. The offender was in the front passenger seat of the Econovan. After the Econovan was stopped, the offender opened the passenger side door but he did not alight from the vehicle. 9. The three offenders had entered the shopping centre with the intention of stealing at least one of the ATMs. They intended to dislodge it using the white Tarago before loading it into the back of the blue Econovan. 10. The offenders were unable to dislodge the ATMs so money was taken. The Commonwealth Bank ATM contained $210,090 in cash and sustained $8,887 worth of damage. The ANZ Bank ATM contained $49,170 in cash and sustained $34,941 worth of damage. 11. The white Tarago was damaged and abandoned at the scene. The three offenders entered the blue Econovan and drove away. They then parked the Econovan on Pembroke Road, Marsfield, and set it alight to destroy any forensic evidence. 12. While driving back to Auburn in the Camry, the offender activated a speed camera at 4:18am on Pennant Hills Road, Oatlands, between Glencoe and Gollan Avenues, travelling in a southerly direction. Al-Ahmadzai and the unidentified male were also in the car. Speeding Fine 13. Toyota Camry BR40UX is registered to Zachariah Alameddine, the offender's son. They reside at the same address in Auburn. 14. The speeding fine was issued on 21 May 2013. On 23 May 2013 Zachariah phoned the offender and told him that he had received a speeding fine. Upon being informed of the location and time the offender admitted that he had been driving the Camry. Events following 15. On a date between 23 May 2013 and 8 June 2013, the offender told his friend Osama Gebara about the speeding fine. Gebara provided the offender with the personal details including licence details of his employee Munther Abu-Taer. On 8 June 2013, a statutory declaration was completed in the name of Zakariya Alameddine falsely asserting that Abu-Taer had been the driver of the Camry at the relevant time. 16. On 10 July 2013, police attended the offender's home and spoke to Zakariya, they told him that they were investigating a ram raid at the Macquarie Shopping Centre and that his vehicle had been detected in the area. Between 10 July 2013 and 14 August 2013, the offender had a number of discussions with Gebara about ensuring that Abu-Taer would effectively take the blame for the speeding fine. 17. On 12 July 2013 Al-Ahmadzai called the offender, Al-Ahmadzai was in custody for other matters at the time. They had a conversation: WF: Do you remember that little, do you remember that little (indistinct).MA: The little what? WF: Do you remember that little trip? MA: Yeah. WF: Me, you and Abu Ziad? MA: Yeah. WF: Yeah, brother, it's, they've just ah (beeping) yeah. MA: Okay. It's gunna cut out. WF: ---yeah, listen, I love you for the sake of Allah. MA: (indistinct)... you love me. Give my love to all the boys, huh? WF: I will, I will but there's something else I needed to tell you, man. It's just, there's a lot, too much to say, bro. MA: I'll try calling you back later today. 18. The term "little trip" is a reference to the ram raid. 19. On 18 July 2013 Al-Ahmadzai called the offender again. The offender indicated that he needed to see Al-Ahmadzai face to face. Al-Ahmadzai was still in custody at that time. They had a conversation: WF: Oh man, I, anyway, listen, remember our little fishing trip? MA: Yeah. WF: You - you and Abu Ziad? MA: Yeah. WF: Yeah, guess what, brother? (Laughs) MA: What? All - all good? WF: What? I said, guess - our- our, remember our little fishing trip? We went and… MA: Yeah, yeah. WF: We went and fished. MA: Yeah. WF: You remember the fish that we went and tried to catch and they were very-- MA: Yeah. WF: Very very very hard to get out of the water. MA: Yeah. WF: Yeah, brother, forget it, man. Um, it's come back to ...... ... MA: Gone? WF: Yeah, they, they've- they've come back to bite us. MA: What do you mean? WF: (Laughs). They've come back to bite us. MA: What.... WF: Yeah, yeah. Do you remember? On our way home? MA: Yeah, yeah, I remember, brother. WF: Do you remember on our way back home? When I said to you Glory be to Allah, did you see a flash? MA: Oh, no way. WF: Yeah, brother. Yeah, brother. Yeah. 20. In this conversation the "flash" is the flash of the speed camera on Pennant Hills Road, "the fishing trip" is the ram raid, the "fish" being "very, very hard to get out of the water" is a reference to the offender Al-Ahmadzai and 'Abu Zaid' being unable to dislodge the ATMs. 21. Between 23 July 2013 and 14 August 2013 the offender had a number of conversations with Gebara and Wesam Hamze in which they discussed how to ensure that Abu-Taer would stick to the story and take the blame for the speeding fine, Fayad said "These pigs are just looking [for] a link". 22. The "link" referred to by Fayad was the link between the speeding fine and the ram raid. 23. The offender was arrested on 29 November 2013. He declined to be interviewed. FORM 1: ACCESSORY AFTER THE FACT TO ASSAULT WITH INTENT TO ROB ARMED WITH AN OFFENSIVE WEAPON CAUSING GRIEVOUS BODILY HARM 24. The offender Wassim Fayad was an accessory after the fact to the shooting of Michael Rooke at the Arrows Nightclub in Rydalmere on 1 May 2013. The shooting was carried out by Milad AI-Ahmadzai, Osama Toffic and Wesam Hamze. The offender afterwards had knowledge of the offence and Toffic's involvement in it, and he assisted Toffic by telling him to leave the country because he was going to be arrested in relation to the shooting. The shooting 25. On 30 April 2013, the victim Michael Rooke (aged 53 years) attended the Arrows Nightclub located at 17 Bridge Street, Rydalmere. The venue is marketed as a 'Gay and Bi Sex Club'. The victim arrived at approximately 11:08pm and parked his car in the partially underground car park. He left the club at approximately 12:45am (1 May 2013) when he started walking back to his car. Due to the late hour, the car park was almost empty. 26. Upon exiting the club, the victim saw stolen white Toyota Hiace van AJ0-13X parked behind his vehicle, effectively blocking the exit. The van's window had been smashed and the rear sliding door was open. The victim saw two males run from the van and stop approximately 10 metres up the driveway leading to the street. The victim saw the males squat down and look towards him through an opening in the car park wall. 27. The victim returned to the door to the club to inform the manager that a van was blocking the exit. The door to the club is secure and access can only be gained by activating the intercom and waiting for the door to be unlocked by staff inside. 28. A few moments later, the duty manager came to the door. The victim told the manager to come outside because there were "people" there. 29. The victim walked back towards his vehicle. He did not appear to be carrying anything. He arrived back at his vehicle and unlocked the doors. The manager was walking a few metres behind him. 30. At approximately 12:47am, the two males ran towards the victim. The victim initially crouched down behind his car before quickly closing the car door and running back towards the entrance to Arrows. 31. Both of the males were wearing facial coverings and gloves. Male #1 was wearing long pants and holding a firearm. AI-Ahmadzai was wearing three-quarter length pants. Male #1 was either Toffic or Hamze. 32. The victim was shot by male #1. The first shot hit the victim's ankle and he fell to the ground. The victim tried to crawl back towards the club but male #1 and AI-Ahmadzai repeatedly kicked and shoved him while he was on the ground and while he was trying to get away. 33. The two males pursued the victim across the car park to the entrance to the club. Male #1 fired six more shots towards the victim at close range. The victim called for help and tried to open the door to the club. 34. The two males ran back to the victim's car and male #1 attempted to shoot the car window, however, the firearm did not discharge. Male #1 spent 22 seconds rummaging through the victim's vehicle while AI-Ahmadzai stood nearby. It is unclear from the CCTV footage whether anything was taken. 35. Male #3 remained away from the car park and closer to the street, either in or near stolen Nissan Pulsar AGN-47U. Shortly after the gun shots, male #3 reversed the Pulsar down the driveway. The two males ran towards the Pulsar and got inside. Male #3 drove them away. Male #3 was either Toffic or Hamze. Victim's injuries 36. The NSW Ambulance Service registered the Triple 0 call at 12:51am. Ambulance officers arrived at the scene at 12:57am however they were unable to treat the victim until 1:18am because Police were fearful that the shooter was still in the vicinity of the nightclub and would not allow the ambulance officers to enter. 37. The victim had been shot four times - once in the ankle and three times in the torso. He was taken to hospital where he was found to have the following injuries: • A metallic foreign body in the right anterior chest wall with subcutaneous emphysema (gas or air in the layer under the skin); • Bilateral haemopneumothorax (air and blood in the chest cavity); • Right pneumomediastinum (air in the thorax); • Free intraperitoneal gas; • Right ruptured kidney with surrounding haematoma; • Hepatic (liver) laceration with arterial blush and metallic bodies; and • Right inguinal (groin or lower abdomen) surgical emphysema. 38. The victim underwent "urgent damage control surgery". The surgical procedures included insertion of chest drains, abdominal packing over liver and spleen, repair of diaphragmatic injury, and cleaning of gunshots wounds to right flank, right hip, right suprapubic region, and left leg. 39. The surgical findings were: • Haemoperitoneum (200ml of blood in the peritoneal cavity) in both upper quadrants; • A through-and-through 2cm liver laceration with long tract; • 2cm right diaphragm perforation; • 10cm x Bern right peri-nephric (around the kidneys)/retroperitoneal (abdominal cavity behind the peritoneum) haematoma; • Subcutaneous RIF (right iliac fossa) tract connecting gunshot wounds over the right supra-pubic and right hip; and • Deep laceration over left ankle exposing the tendon. 40. X-rays showed a comminuted fracture of the left fibula. After surgery, the victim was transferred to the intensive care unit for monitoring. 41. At 4:10pm, an angiogram revealed ongoing arterial bleeding from the liver. The victim underwent further surgery to repair the bleed. 42. On 2 May 2013, the victim had further surgery to repair bleeding from the spleen, a defect in the right mesocolon (tissue between peritoneal cavity and small intestine), and multiple defects in the omentum (layer of peritoneum that surrounds abdominal organs). His spleen was removed and abdominal drains inserted. 43. On 8 May 2013, the victim was extubated. 44. On 9 May 2013, he underwent further surgery including sphincter repair and repair of a bile leak. 45. On 10 May 2013, he was discharged from intensive care unit and transferred to the high dependency ward. 46. During his hospital admission, the victim had a prolonged period of delirium. He made a "very slow" but satisfactory recovery before being discharged on 13 June 2014. 47. His injuries were life-threatening. He will have permanent scarring in his chest, abdomen, and legs and a result of his injuries and treatment. 48. The victim has undergone further surgeries since being discharged from hospital. Knowledge of the offence 49. On 19 August 2013, the channel 10 television program 'Wanted' broadcast a story about the shooting of Michael Rooke. The story included the broadcasting of an interview with the victim in which he talked about being shot and described his injuries, as well as broadcasting the CCTV from the shooting. 50. Telephone intercept and listening device material prove that the offender became aware of the offence and the involvement of at least AI-Ahmadzai and Toffic either on or before 17 September 2013. Arrest of AI Ahmadzai 8 October 2013 51. On 8 October 2013, Police attended Goulburn Police Station and arrested AI Ahmadzai in relation to the Arrows shooting. He declined to be interviewed. Arrest of Hamze 10 October 2013 52. On 10 October 2013, Police arrested Wesam Hamze. He denied the offences. The offender's assistance 53. Shortly before 10 November 2013, Wesam Hamze's wife Tara-Lee Hamze visited her husband in gaol. Wesam told her, "Go speak to Abu Zakariya and tell him to tell Osama to leave ASAP." 54. On 10 November 2013 at 11:46am, Tara-Lee phoned the offender. She said that she needed to see him "very quickly" and speak to him directly as she needed to tell him something. They arranged to speak again. 55. At approximately 5:45pm, the offender and Tara-Lee had a meeting. Tara-Lee told the offender to tell 'Osama' to leave the country ASAP. At this time, Tara-Lee did not know Toffic's surname. 56. While Tara-Lee was still present, the offender phoned Toffic. The offender told Toffic that he needed to come back to Sydney from Newcastle and see the offender straight away about a "really serious" matter that could not be discussed over the phone. The offender said to Toffic, "Don't go anywhere else, come see me straight away." 57. At 6:13pm, the offender spoke to Mirwais Danishyar. The offender said that he had "just received a very important call from inside" and that he was "very, very, very busy. I might even have to drive halfway to Newcastle just to see this guy. It's really important, really important." 58. At 6:13pm, the offender spoke to an unidentified male. The offender said that he needed to meet with the male "ASAP" because he just got "a very, very important message…and I've got to meet up with this guy urgent, urgent. I just received a very important message from someone in gaol, ok? From his wife and I've got to attend to it ASAP." 59. At 6:20pm, Toffic and the offender agreed to meet on Pennant Hills Road. Later the offender phoned Toffic and told him not to go to a place with a television. The word "television" in this context was actually a reference to a CCTV camera. The offender and Toffic had a face-to-face meeting shortly thereafter. The offender told Toffic to leave the country because he was about to be arrested by Police in relation to the Arrows shooting. 60. At 7:04pm, the offender spoke to William Kostopoulas. He asked Kostopoulas to ask Wesam to put him (the offender) on his visitors list and to phone him ASAP. 61. On 11 November 2013 at 9:56pm, the offender phoned Toffic and said that he will go and see Hamze on Toffic's behalf. 62. On 12 November 2013 at 10:53am, the offender spoke to Tara-Lee and asked her to tell Wesam to call him. 63. At 10:58am, the offender called Toffic and told him that he had confirmation that he (Toffic) was definitely "that one". The offender told Toffic not to speak to anyone because he did not want Tara-Lee's information to be exposed. 64. On 13 November 2013 at 5:42pm, the offender called Toffic and said that he wanted to meet however Toffic said that he was "out of town". Toffic said, "You told me to wait til you see him" and the offender replied, "I've already done that, brother…I've got a message. I need to see you." The offender said, "As soon as you get in the area, like, please come straight to me brother…It's really urgent. Trust me." Toffic and the offender met shortly after 9pm. 65. At 10:06pm, as a result of the conversation with the offender, Toffic did an internet search looking for cheap flights to Turkey. 66. At 11:45pm, the offender spoke to an unidentified male. The offender said, "The brother has only one day to leave the country...I told him to call your number...His name is Osama...I told him what to do and the letter came to me from gaol...he has to go and leave the country." Toffic's response 67. On 15 November 2013 at 10:57am, Toffic spoke to Bilal Elzamtar. Bilal Elzamtar is Milad AI-Ahmadzai's brother-in-law. Toffic asked him if he had heard any news about "Milad" because he thinks he (Toffic) will be charged by Police. Elzamtar asked if he was talking about "the shooting" near Ermington and Toffic replied in the affirmative. Toffic told Elzamtar that he would be going on "holidays" soon but he didn't want to talk about it over the phone. Toffic said that he was being "accused". 68. At 11:28am, Toffic again spoke to Elzamtar. Toffic said that "they" came asking about him and that "the men" have told him to go. This was a reference to Fayad. Elzamtar told Toffic not to have one bit of regret and Toffic replied, "I swear by God, I don't. God willing, I will get through the ticket box." 69. At 2:26pm, Toffic spoke to his wife. He said, "I am wanted by the fucking Police." 70. At 3:22pm, Toffic spoke to an unidentified male and said that next week he was going on a holiday. Not a normal holiday- a "holiday holiday." 71. At 4:49pm, Toffic did an internet search to compare flight prices to Germany. Toffic's flight 72. On 16 November 2013 at around midday, Toffic's sister and mother attended a travel agency in Granville and purchased a ticket to Germany via Abu Dhabi in the name of Osama Toffic. The ticket was for an Etihad flight leaving at 9:50pm that night. Arrest of Toffic 16 November 2013 73. On 16 November 2013 at approximately 8:35pm, Toffic was stopped at Sydney International Airport by customs staff and subsequently arrested by Police. Toffic was in possession of the ticket that had been purchased by his mother and sister. 74. Toffic's arrest at the airport was broadcast on various television news reports. Shortly after Toffic was arrested, Wesam Hamze phoned Tara-Lee Hamze and told her that, "The guy that got arrested was the guy the [she] called Fadi for." The offender's phone call to AI Ahmadzai 75. On 19 November 2013 at 9:57am, the offender spoke to AI-Ahmadzai. The offender said, "Your brother has been…pretty much collected." AI-Ahmadzai said that he already knew because it's "all over the news". Arrest of the offender 76. The offender was arrested on 29 November 2013. He told Police that he had "never heard of" the shooting of Michael Rooke at Rydalmere. He agreed that he knew Milad AI-Ahmadzai, Osama Toffic, and Wesam Hamze as they are his "brothers in Islam" however he said he could not remember whether he told Toffic that Police wanted to arrest him and that he should leave the country. He declined to be interviewed.

The sentence proceedings

In addition to the agreed facts document, the Crown tendered the following documents on sentence: a document headed "Crown Sentence Summary"; the applicant's criminal and custodial histories; the remarks on sentence of Bennett SC DCJ in relation to the applicant's conviction appeal to the District Court; documentation from NSW Corrective Services concerning the applicant's segregated custody in the High Risk Management Programme ("HRMP"); and a statement outlining the damage done as a result of the ram raid. In addition, CCTV footage of the commission of the offence was played at the proceedings on sentence and relied upon by the Crown.
Counsel for the applicant objected to paragraphs [15] - [22] of the agreed facts document, which state that the applicant made a false statutory declaration in the name of his son as to the identity of the driver of the Toyota Camry with registration BR40UX. That vehicle was captured by a speed camera as the applicant and his co-offender drove back to Auburn. The basis of the objection was that this material was irrelevant, in that it pertained to the count on the indictment to which the applicant had pleaded not guilty. Her Honour accepted that submission.
The only evidence adduced in the defence case on sentence was an affidavit of the applicant sworn 13 November 2015. In it he deposed that he is being held in the High Risk Management Unit of Goulburn Correctional Centre ("HRMU"). He described suffering extreme distress, nausea and severe migraine headaches since being housed in the HRMU. He has six children whom he had not been able to see as at the date of his affidavit because they were not as yet approved as visitors by Corrective Services. He speaks to his family twice a week. He described not being able to afford the religiously appropriate meals provided at an extra cost in custody and thus his only source of meat is at the halal barbecue conducted in custody one day a week.
The applicant's counsel informed the court that he was not in a position to make a submission that there was any evidence of remorse in this matter. He indicated that the applicant's subjective case would be run solely on the question of the applicant's custodial circumstances. He focused his submissions upon the proper assessment of the objective seriousness of the offences, a table of cases said to be comparable, the applicant's hardship in custody and the utilitarian value of the plea.

The reasons of the sentencing judge

Her Honour outlined the procedural history of the matter and set out the agreed facts in full. She then went on to note that she could not take into account the facts that form the basis of the alleged offence under s 319 of the Crimes Act to which the applicant had pleaded not guilty. Her Honour proceeded to make an assessment of the objective seriousness of the principal offence. Her Honour found that there were five matters relevant to that assessment: that there was considerable planning involved; that the intent was to commit the serious indictable offence of larceny of a substantial amount of cash; that the circumstance of aggravation was that the offence was committed in company (which is less serious than some other aggravating factors); that the damage to the shopping centre and the ATMs was substantial; and that the offence was committed for financial gain. Overall she found that this was "a very serious instance" of an offence contrary to s 113(2).
As for the accessory offence on the Form 1, her Honour found that the offence was less serious than some, but not at the lowest end of culpability. She noted that it is necessary to take into account the nature of the principal offence. Her Honour found that the offence contrary to s 98 was a serious one and thus that the applicant had knowingly assisted an attempt to elude justice for a very serious criminal offence.
Her Honour allowed a 12.5% discount for the guilty plea. She then considered the applicant's subjective circumstances. She noted that the applicant was born in November 1967 and was aged 45 at the time of the commission of the "ram raid" offence. She noted that his criminal history revealed early contact with the criminal justice system, but that the history was not extensive. She noted that the main significance of the criminal history was that the principal offence for which the applicant stood to be sentenced, as well as the matters on both Forms 1, were all committed while the offender was on bail. Her Honour noted that this was a matter relevant to the determination of sentence.
It was noted that, beyond the conditions of the applicant's imprisonment, there was little evidence before her Honour as to his personal history or circumstances. In those circumstances, her Honour found that there were "…no matters mitigating Mr Fayad's criminal culpability for the offence committed by him."
Furthermore, it was noted that there was no evidence of remorse. Her Honour did not find that the applicant's prospects of rehabilitation were good or that he was unlikely to reoffend.
As for the applicant's conditions of custody, her Honour noted that the evidence before her was that the applicant's segregation was necessary for the security of, and good order and discipline within, a correctional centre. She found that it was reasonable to conclude that it was more likely than not that the applicant would continue to be housed in the HRMU. Accordingly, she accepted that the applicant's conditions of custody would be harsher than might otherwise be the case and determined that it was appropriate to mitigate the sentence to some degree for that reason.
Her Honour then referred to the purposes of sentencing and noted: "This is a case where I am called upon to sentence a mature age man who was at liberty on bail when he committed the principal offence. His plea of guilty has to be duly acknowledged and taken into account. There is no evidence of remorse as I have said and Mr Fayad does not have good prospects of rehabilitation. He cannot be sentenced as though he is a young offender who has both accepted responsibility for his conduct and who is remorseful and who has reasonable prospects of rehabilitation. In all of the circumstances I am satisfied that the sentence to be imposed must fulfil not only the purpose of general deterrence and denunciation but also special deterrence. Mr Fayad must be made accountable for his serious criminal conduct. In so stating I recognise that having regard to all of the purposes for which a sentence may be imposed and having regard to all of the facts of the matter concerning the offence and concerning the offender that there is a need to impose a proportionate sentence."
Her Honour went on to consider five comparable cases involving "ram raid" offences upon which the applicant's counsel at sentence relied. The schedule summarising those five cases is annexed to her Honour's reasons. They are Johnson v R [2009] NSWCCA 204; McDonald v R [2011] NSWCCA 2; Forbes v R [2009] NSWCCA 292; R v DBN [2005] NSWCCA 435; and McGeown v R [2014] NSWCCA 314. Her Honour noted that three of those cases pertained to breaches of s 112(2) of the Crimes Act (namely, break, enter and commit serious indictable offence in circumstances of aggravation). The present offence is contrary to s 113(2) of the Crimes Act (break and enter with intent to commit serious indictable offence in circumstances of aggravation).
Having referred to those cases, her Honour stated: "It should not be thought that the appropriate sentence in a particular case is to be determined by the objective of seeking mathematical equivalence with other cases. In considering the cases brought to the attention of the court it is clearly acknowledged by the parties that there are differences in the facts and circumstances of the offences and the particular offenders. So much can be seen from the nature and number of offences committed by the particular offenders referred to in the chart including by way of distribution of various Form 1 offences. It is to be recalled that one of the matters I am to take into account on sentence is a matter unrelated to the principal offence. Ultimately the sentence to be imposed must be appropriate to the circumstances of the offending and of the offender."
Her Honour noted that there was no attempt on behalf of the applicant to make a submission that a finding of special circumstances should be made. Nonetheless, having determined to mitigate the sentence by reason of the applicant's conditions of custody, her Honour made a finding of special circumstances and adjusted the statutory ratio to some limited extent in order not to impose a head sentence that failed adequately to mark the seriousness of the offending.

The proposed appeal

The sole ground of appeal upon which the applicant relied in this application for leave to appeal is that the sentence imposed was manifestly excessive.
Mr Scragg of counsel, who appeared on behalf of the applicant, submitted first that the applicant's criminal history was not such that it would disentitle him to leniency. In support of this submission, he relied upon the reasons of Bennett DCJ allowing the applicant's severity appeal in the unrelated assault and steal from dwelling house matters. In particular, he pointed to Bennett DCJ's observations that the applicant was of a deep religious faith and had been acting in accordance with what he understood to be his responsibility at the time of those offences. It was also noted that that the complainant had consented to the first three of the 40 blows inflicted and had gone to the applicant looking for guidance and assistance.
Complaint was then made that, despite the fact that her Honour stated that she would not take into account the facts pertaining to the count contrary to s 319 of the Crimes Act, she nonetheless set out those facts in her reasons. It was submitted that her Honour may not have adhered to her express self-direction. Mr Scragg did not rely upon this as a separate error, but submitted that it is indicative of some misapplication of principle that cannot be identified as any patent error.
It was further submitted that the sentencing judge set out the facts for the Form 1 offence in considerable detail and that this too was indicative of error. It was submitted that the error was revealed in the ultimate sentence imposed.
Mr Scragg submitted that a crushing sentence had been imposed on the applicant. He accepted that a sentence can be increased in order to take into account a Form 1 offence or offences. Nonetheless, it was submitted that the sentence imposed was unjust and does not promote the objectives of rehabilitation. Mr Scragg relied upon a number of cases by way of comparison, some of which were before the sentencing judge, and submitted that her Honour could not have had proper regard to those cases. In addition to the five cases to which her Honour referred, he also relied upon decisions of this Court concerning "ram raids" prosecuted contrary to s 112(2) of the Crimes Act. Those decisions were R v Ceissman [2004] NSWCCA 466; R v Leslie [2009] NSWCCA 203; and R v Reilly; R v Smith [2012] NSWCCA 166. He also relied upon the cases of R v Lenthall [2004] NSWCCA 248 and R v Guthrie [2002] NSWCCA 77, which concerned offences contrary to s 113(2) of the Crimes Act.
Mr Scragg submitted that the applicant had led an "unblemished life", but conceded that there was no material before the sentencing judge upon which such a finding could be made. It was also submitted that a finding of remorse should have been made because of the plea of guilty. However, Mr Scragg accepted that there was no evidence of remorse before the sentencing court.
Finally Mr Scragg relied upon the statistics published by the Judicial Commission in its Judicial Information Research System ("JIRS") in support of a submission that the applicant received the highest sentence imposed for an offence against s 113(2) of the Crimes Act.
The Crown submitted that the decisions upon which the applicant relied can all be distinguished from the present case on their facts and their respective subjective features. It was noted that offences under s 113(2) cover a broad range of offending conduct.
It was further submitted that, having regard to the multiple objectives of sentencing for offences of this kind, the absence of any strong subjective case, and the inclusion of the Form 1 matters, the head sentence of seven years with a non-parole period of four years and nine months imposed in this matter cannot be regarded as plainly unjust or unreasonable.

Consideration

To succeed on a ground of manifest excess, the applicant must establish that the sentence is "unreasonable" or "plainly unjust": Markarian v The Queen [2006] 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. Consideration of such a ground is undertaken in the context that there is no single correct sentence and that sentencing is not to be understood as a mathematical exercise. Accordingly, sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle. As Hayne J observed in AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, "…there will be a range of possible sentences that could be imposed without error."
In Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 19, the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) at [15] expressed the role of an appellate court dealing with a ground of manifest excess this in this way: "…a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
The focus of the applicant's submissions in seeking to establish that the sentence imposed on the applicant was unreasonable or plainly unjust was a detailed comparison of the sentence with that imposed in other "ram raid" decisions of this Court. In this regard it is pertinent to extract what the High Court observed in Barbaro v R; Zirilli v R (2014) 305 ALR 323; [2014] HCA 2 at [40]-[41], where French CJ, Hayne, Kiefel and Bell JJ stated (footnotes omitted): "The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil-Brown, the synthesis of the "raw material" which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel."
I have had regard to the five cases to which her Honour referred as well as the additional cases relied upon by the applicant at the hearing of this application. Only three of the cases involved offences contrary to s 113(2) of the Crimes Act (as opposed to s 112(1)). In R v Lenthall, a significantly lower sentence than the present sentence was imposed, but the offender received a 25% discount for his early plea, was found to be genuinely remorseful and had good prospects of rehabilitation. In R v DBN, the sentence of five years was described as "lenient" by Rothman J. In any event, the s 113(2) offence committed by DBN was part of a series of offences for which he was being dealt with and thus the principle of totality applied. R v Guthrie was a Crown appeal in 2002 (prior to the enactment of s 68A of the Crimes (Appeal and Review) Act) 2001 (NSW)) where the appeal was allowed and a sentence of six and half years imposed.
The submission advanced on behalf of the applicant was that, even having regard to the sentences imposed for the more serious offence under s 112(2) of the Crimes Act (which carries a maximum penalty of imprisonment for 20 years and a standard non-parole period of five years), the sentence imposed on the applicant was excessive. Implicit in this submission is a contention that the sentencing judge placed undue weight on the s 112(2) decisions rather than the s 113(2) decisions, and thus erred. The difficulty with this contention is that her Honour's reasons show that she expressly identified that some of the cases upon which the applicant relied involved convictions for offences contrary to s 112(2) of the Crimes Act. There is nothing in her Honour's reasons to suggest that she did not make the distinction between the respective decisions. Although it is to be accepted that the sentence imposed upon the applicant is towards the higher end of the sentences imposed in the s 112(2) cases upon which the applicant relied, this submission is ultimately no more than a submission that the sentence is too high.
The sentencing judge paid close regard to the decisions in other cases and annexed the schedule of the relevant cases to her final reasons. Her Honour clearly had regard to the relevant principles in those cases. "Ram raid" offences are particularly serious property offences because of the potential both for property damage and the theft of large sums of money. The sentencing judge quoted in her reasons from the decision in Reilly v R; Smith v R, where Price J (with whom Basten JA and Campbell J agreed) observed at [37]: "In my opinion, a 'ram-raid' is a serious instance of an offence of break, enter and steal because of the inevitable destruction that is unleashed by the use of a motor vehicle to smash into commercial premises and the difficulty that store owners have protecting their property from such an offence. Both specific and general deterrence would normally play an important part in the sentencing task for a ram-raid offence."
Her Honour also extracted the observations of Fullerton J in McGeown v R (with whom Leeming JA agreed, Adams J dissenting) at [55]: "Using a vehicle as a ram to force entry to commercial premises with the intention of stealing from them has been recognised as a particular type of offending in breach of s 112(2) largely because of certain common features which, when they are present, serve as an indicator of objective seriousness: invariably a stolen vehicle is used and the offence committed in company; considerable property damage is frequently occasioned and property of not inconsiderable value taken. In addition, while insurance is some measure a proprietor can take against loss, little can be done to protect against the risk of particular commercial premises being targeted. In this case the pharmacy was targeted because of the expectation that there would be quantities of prescription drugs and cash available to be stolen quickly before an escape was effected in the vehicle used as the ram."
Having had regard to the other decisions concerning "ram raid" cases, her Honour noted that the appropriate sentence in any given sentencing exercise is not to be determined by the objective of seeking mathematical equivalence with other cases.
In order for this appeal to be upheld, the applicant must establish that, having regard to all of the features of his case, both objective and subjective and aggravating and mitigating, the sentence is unreasonable or plainly unjust. When regard is had to those matters the following emerges.
The applicant was sentenced to seven years' imprisonment in circumstances where the maximum penalty was imprisonment for 14 years. The offence included a degree of planning that her Honour found to be considerable. The amount of cash in the two ATMs that the applicant sought to remove was in the vicinity of $260,000, although no money was actually taken. There were three offenders involved in circumstances where the aggravating element was that the offence was committed in company. The offence caused damage in the amount of approximately $75,000, which her Honour described as "substantial". The offence was committed for financial gain. No other explanation was advanced on behalf of the applicant.
There were three separate offences to be taken into account on two separate Forms 1 in this matter. Although I accept that the offence of taking and driving a conveyance is often associated with offences of this nature, the accessorial offence was a further serious matter unrelated to the index offence. It is well established that a sentence can be increased to take into account matters on a Form 1: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115. The seriousness of a Form 1 offence is pertinent to the extent to which a sentence would be increased to take the offence into account.
The principal offence was committed whilst the applicant was on bail. The Form 1 accessory matter was also committed whilst the applicant was on appeal bail. It was appropriate to have regard to this an aggravating factor.
The applicant pleaded guilty at a relatively late stage of the proceedings. He was afforded a discount of 12.5%. Many of the other cases upon which the applicant relied involved pleas at an earlier stage of the proceedings.
The applicant could not rely upon his previous good character. The applicant has a criminal history, but until recently it was not significant. He had a conviction for a stealing offence and a break, enter and steal in the Children's Court and a conviction for offensive behaviour in 1987. He then had nothing on his criminal record until 2001, when he was fined for driving whilst disqualified from holding a licence. There were no further convictions until he committed the assault occasioning actual bodily harm in company offence in 2011, the facts of which were before the sentencing judge in the form of the remarks on sentence of Bennett DCJ.
Mr Scragg invited the Court to have regard to the matters to which Bennett DCJ referred in his reasons allowing the applicant's severity appeal. It is to be noted that her Honour did not refer to the facts of those offences at all in her reasons. Her Honour considered that the only significance of those offences was that the applicant was on bail for them when he committed the present offence and on appeal bail in relation to them when he committed the Form 1 offence. Bennett DCJ imposed a suspended sentence on the applicant for those offences. To the extent that it was suggested on behalf of the applicant that her Honour somehow placed too much weight on those matters, such a submission is not borne out in her Honour's reasons.
Although the applicant's criminal history was not significant, the applicant - a middle-aged man - involved himself in a course of serious offending behaviour over a relatively short period of time. There is nothing disclosed in her Honour's reasons to suggest that she placed too much weight on the applicant's criminal record, nor was the applicant entitled to any leniency based on it.
Significantly, there was no material put before the Court to assist her Honour as to whether the sentence could be mitigated in any way beyond the fact that the applicant had pleaded guilty and was serving his sentence in the HRMU. This is an unusual feature of the case and one that is of some relevance in circumstances where the applicant seeks to rely upon comparisons of this case with other decisions of this Court. In none of the other cases upon which the applicant relied was there such a paucity of mitigating material as in the present case. In some of them a great deal of subjective material was before the Court. It is well established that a sentence can be mitigated by evidence of, by way of example, mental illness, a disadvantaged childhood, remorse, good prospects of rehabilitation, charitable works, extreme hardship to families, provocation, duress, an offer of assistance, or an offer to make reparation to the victim.
No material of this nature was put before the sentencing judge by experienced counsel appearing for the applicant. It was not suggested by counsel on the appeal (who was not counsel who appeared for the applicant at first instance) that the decision not to do so was for any reason other than the applicant's instructions. In circumstances where her Honour found that the offence was "very serious" and that there was no basis to mitigate the sentence any further, a stern sentence was the inevitable result.
It is of further significance that the applicant is not a young man, having regard to the fact that offences of this nature are usually committed by young men. The ages of the offenders in the cases upon which the applicant relied at the time of the offence (where the age appears in the judgment) were 24 (Mr Leslie), 19 (Mr Johnson), 24 (Mr Reilly), 22 (Mr Smith), 29 (Mr Forbes), 26 (DBN), and 27 (Mr Guthrie). Only Mr Ceissman at 31 and Mr McGeown at 36 could not be described as young, albeit that they were both considerably younger than the applicant. As her Honour pointed out, she was not able to sentence the offender on the basis that he was a "young offender who has both accepted responsibility for his conduct and who is remorseful and who has reasonable prospects of rehabilitation". Her Honour could not find that the applicant's prospects of rehabilitation were good.
The only mitigating feature upon which her Honour was in a position to rely was the circumstances of the applicant's custody. The evidence before her Honour was that the applicant was placed in segregation not for his own safety but because his actions in custody whilst in the general prison population were having a negative impact on the safety and security of the correctional centre. The basis for this was not put before the sentencing judge in any detail; it was simply stated that, whilst in custody, the applicant had been "actively recruiting inmates to Islam" and was a "proponent of the implementation of Sharia law". Although it was open to her Honour to take his conditions of custody into account "to some degree", as her Honour did, they did not warrant any significant amelioration given that they are a result of his own actions.
I have had regard to the applicant's complaint that her Honour's recitation of the facts pertaining to the Form 1 accessory offence contained too much detail of the principal offence (the shooting). Her Honour simply set out the agreed facts, which were before her in their entirety. This is a common practice in sentencing proceedings. It is difficult to see how any complaint can be made to the effect that her Honour recounted the facts upon which the sentence was to be based in the form that it was agreed that they should be before her for the purpose of sentencing the applicant.
Finally, in concluding that the sentence imposed was not unreasonable or plainly unjust, I have had particular regard to the sentencing statistics published by the Judicial Commission. They show that, of the 137 cases between January 2009 and December 2015 in which offenders received a custodial sentence for an offence contrary to s 113(2) of the Crimes Act, only three offenders (including the applicant) received a head sentence as high as seven years. That is, the applicant's sentence is at the top of the current "range" of sentences reflected in those statistics. It is pertinent in this regard to note the observations of Simpson J (as her Honour then was) in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303] - [305]: "A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases. It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty. The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned: Wong and Leung, at [59]. In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender. Significant sentencing considerations include the role played by the offender in the particular importation or enterprise, the quantity of the drug involved, and its estimated street or wholesale value (having regard, inter alia, where relevant, to its purity). Also of considerable significance are the character and antecedents of the offender (s 16A(2)(m)). This last consideration bears upon the offender's prospects of rehabilitation, and also to any claim for leniency made on his or her behalf by reason of prior good character."
These comments were endorsed by the High Court in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54].
The statistics do not reflect the relevant objective and subjective features in each case. Significantly, they do not record how many of the other offenders committed serious "ram raid" offences whilst on conditional liberty, asked that other matters be taken into account at the time of sentence, and then placed virtually no subjective material before the sentencing court.
The sentence imposed is high, but in the circumstances of this case I am not persuaded that it is unreasonable or plainly unjust. I would grant the applicant leave to appeal but would dismiss the appeal.

Amendments 01 May 2017 - Coversheet amended to change sentencing judge to "Woodburne SC DCJ". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2018

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