HEJAZI v THE QUEEN

Crimes Act 1900 (NSW), s 112 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 50 Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Sch 1 [5]

Cicciarello v R [2009] NSWCCA 272 Elyard v Regina [2006] NSWCCA 43 CASES CITED : R v Simpson (1992) 61 A Crim R 58 Re Attorney-General's Application [No 1]; R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 Regina v El Masri [2005] NSWCCA 167

PARTIES: Michael Hejazi - Applicant Regina - Respondent

COUNSEL: T Gartlemann - Applicant N Gouda - Respondent

SOLICITORS: S O'Connor (Legal Aid Commission) - Applicant S Kavanagh (Solicitor for Public Prosecutions) - Respondent

IN THE COURT OF CRIMINAL APPEAL CCA 2008/15669

BASTEN JA HOWIE J HISLOP J

13 November 2009 Michael HEJAZI v THE QUEEN Judgment 1 BASTEN JA: The applicant seeks leave to appeal against the severity of two sentences imposed on him by Ashford DCJ in the District Court at Parramatta on 1 December 2008. Each sentence was for an offence of breaking and entering a dwelling house with intent to commit a serious indictable offence, namely stealing: Crimes Act 1900 (NSW), s 112(1). 2 On the first offence, the applicant was sentenced to imprisonment for a fixed term of 18 months to commence on 31 July 2008 and to expire on 30 January 2010. On the second offence, he was imprisoned for a term of three years, comprising a non-parole period of two years, commencing on 30 April 2009 and expiring on 29 April 2011, with a balance of term of 12 months, expiring on 29 April 2012. As may be seen from the respective commencement dates, her Honour accumulated the second sentence upon the applicant serving one-half (nine months) of the first sentence. 3 Leave should be granted in respect of each sentence, because there was no order by her Honour pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) directing that the applicant be released on parole upon completing the specified non-parole period. Otherwise in each case, the appeal should be dismissed. Background circumstances 4 The first offence was committed at a home in Revesby at some point between 29 September and 2 October 2007. The house broken into was empty during that period. In giving evidence on sentence, the applicant was invited to recall the circumstances of the offence but was unable to do so, because he was using the drug "ice" at that time: Tcpt, 01/12/08, p 6. 5 The sentencing judge described the discovery of the offence by a father when he attended the house occupied by his son and the son's family. "On arrival [he] noted a hole in the front lounge room window next to the front door and the rear sliding door was wide open. The police were contacted. It was found that numerous items were missing from the house, all three bedrooms having been ransacked as well as the bathroom and the laundry. All the jewellery of the victims had been stolen and there was also missing a Toshiba brand laptop, personal electronic diary and more jewellery from the other bedroom." 6 The applicant was not arrested until 31 July 2008. However, approximately three days after the first offence, he committed a second offence at a dwelling in Bankstown. He was inside the premises when two female members of the family returned and entered through the front door. He was seen to run towards the back door and, while struggling to open it, was grabbed by one of the women. He freed himself and fled through the back door. 7 Entry had been effected by removing a flyscreen from the rear kitchen window and smashing the glass. Drawers and cupboards in the bedrooms had been opened and ransacked. Two bags were located at the top of the stairs, one a small suitcase containing documents of importance, the second a gym bag containing items collected from the bedrooms, including watches, jewellery and a portable DVD player. A wristwatch belonging to one of the occupants was found on the front lawn. 8 Further details relating to the subjective circumstances of the applicant, the fact that he was on parole at the time of the offences and that he had a long record of criminality, though not for the particular type of offences in question, were all set out by the sentencing judge in her judgment. It is not necessary that those circumstances be repeated for present purposes. First ground: "financial gain" as aggravating circumstance 9 The first ground of appeal concerned a statement made by the sentencing judge "in relation to circumstances of aggravation" that it "was clear the offences were committed for a financial gain noting that the items taken were of some significant value": Judgment, p 6. The basis for this comment was s 21A(2)(o) of the Sentencing Procedure Act, as amended on 1 January 2008 to include a motive of "financial gain" as an aggravating factor: Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Sch 1 [5]. Two challenges were raised in respect of this statement. First, it was said that financial gain could not be a circumstance of aggravation in this case, because it was an inherent characteristic of the particular class of offence for which the applicant had been convicted. Reference was made to the judgment of this Court in Elyard v Regina [2006] NSWCCA 43, at [17]: "As discussed above, it is necessary to distinguish cases where a factor identified in sub-s 21A(2) [of the Crimes (Sentencing Procedure) Act 1999 (NSW)] as an aggravating factor is an element of an offence or, in the sense described above, an inherent characteristic or a characteristic that appertains generally to conduct covered by that offence, on the one hand, and other conduct which cannot properly be so described." 10 Too much weight should not be given to the labelling of particular considerations in reasons for sentence. The real question is whether some factor has been "double-counted", both as an element of the offence, and as an aggravating circumstance in relation to the offence. It is entirely appropriate for a sentencing judge to note that a particular offence carries an element of moral culpability, whether or not that would generally be so in respect of that offence. While it may frequently be the case that offences of break, enter and steal, are carried out for personal financial gain, that is not a necessary element of the offence and will not inevitably be the case. On the other hand, the fact that other purposes can be envisaged, does not greatly assist in determining whether one circumstance entails greater culpability than another. Does, for example, theft of personal items of sentimental value, with intent to cause grief to the owner, give rise to greater or lesser culpability than theft for financial gain? 11 In oral submissions, counsel for the applicant placed weight on the decision of this Court in Cicciarello v R [2009] NSWCCA 272. That was a case involving a sale or supply of drugs to support an addiction to 'ice'. Such a case, involving a different offence, would not be of immediate significance were it not for the following statement in the judgment of the Court (Allsop P, McClellan CJ at CL and Fullerton J) at [17]: "Whilst one should be careful about generalising in relation to such factors outside the circumstances of any particular case, here, quite clearly, when one understands the background of this young man and what he was doing, he was not selling for greed or for financial gain, he was selling to feed a drug habit that he had acquired. This does not detract from the fact that he committed a serious offence, but what it does mean is that it was an error, and an important one, to characterise this as selling for financial gain and thus to characterise it as an offence falling within the mid-range." 12 This statement must be read in its context. It does not purport to say that an offence committed for financial gain may not involve an element of aggravation, as indeed s 21A of the Sentencing Procedure Act states. What it does assert is that selling to feed a drug addiction is a factor which does not increase the moral culpability of the offence in the way that it might be increased if financial gain were not otherwise so excused. Nor does it suggest that the fact that the purpose of the offence was to obtain funds to feed a drug habit in any way diminishes the objective seriousness of the offence. 13 In the present case, the issue is to identify the correct understanding of her Honour's remarks. First, there is no basis in law for complaining that the motive was not relevant to culpability and hence to the seriousness of the offence. Nor is there any suggestion that her Honour did not understand that the moral culpability of an addict may be less than that of someone not so afflicted.

14 Secondly, it was said that there was no basis to make a finding that financial gain was a purpose of the offence in the present case. That complaint is not easily understood: on the one hand, if financial gain was, as asserted, an inherent characteristic of that class of offence, her Honour could hardly be criticised on a factual basis for drawing the inference that such was the applicant's purpose. On the other hand, there were passages in the submissions for the applicant which suggested that the finding was erroneous because there was no basis for establishing the value of the property. However, her Honour made no specific finding in that regard, merely "noting" that the items were "of some significant value". There is no substance in the complaint and, indeed, it is one with which this Court should not have been troubled. 15 It may be that the complaint was really a way of asserting that financial gain was not to be equated with obtaining funds to feed a drug habit, but the two are not mutually incompatible. Ground 2: proportion of balance of sentence to non-parole period 16 Her Honour made a finding of "special circumstances" (about which there is no complaint), which entitled her to fix a sentence involving a non-parole period and balance of the term, where the latter exceeded one-third of the former. Because a non-parole period was fixed only with respect to the second offence, this ground does not operate in respect of the first sentence imposed, which was a fixed term of 18 months. The second sentence was for a period of three years, with a non-parole period of two years, commencing nine months after the commencement of the first sentence. 17 The balance of term of one year was 50% of the non-parole period and could not have been fixed, without a finding of special circumstances. Absent such a finding, her Honour would have been compelled to divide a three year sentence into a non-parole period of two years and three months and a balance of nine months. The imposition of the sentence as so constituted was not in contravention of s 44 of the Sentencing Procedure Act. 18 It is commonplace to treat s 44 as having operation in relation to the aggregate period of imprisonment imposed for a series of offences. It does not. There may of course be an appropriate practice of relating the effective non-parole period to the aggregate term of imprisonment, bearing in mind the statutory proportion specified by s 44. However, that is a practice and not an application of the Sentencing Procedure Act. The distinction is not without significance: where the Act operates, it should be applied in its terms. In relation to a practice, the sentencing judge may enjoy a wider range of flexibility, within which to sentence without appellable error. 19 In order to demonstrate error in this regard, the applicant needed to make good one of two propositions. The first available proposition is that the sentence was manifestly excessive. The second is that the sentence imposed did not give effect to the intentions clearly expressed in the judgment. 20 In respect of the first, no real complaint was made under this ground of manifest excess. In relation to the second potential basis of complaint, it is clear that her Honour correctly understood that the finding of special circumstances was the basis for varying the statutory ratio, which she did. At no point in her judgment did her Honour suggest that she was seeking to adopt some particular proportion between the total period of mandatory imprisonment for the two offences and the period of eligibility for parole. 21 The applicant suggested that her Honour could have relied merely on the circumstance of accumulation if the purpose had been to achieve something equivalent to the statutory ratio for the aggregate period of imprisonment. No doubt that is true, but the fact that she referred to substantive factors which constituted special circumstances does not mean that what she did did not reflect her intention. This ground of appeal was not made good. Ground 3: offences capable of being dealt with in the Local Court 22 The applicant stated, correctly, that the offences in question were capable of being dealt with in the Local Court if the value of the property stolen did not exceed $15,000. It was, however, open to the prosecution to elect to have the matter dealt with on indictment and that course was taken. 23 Reliance was placed upon the remarks in Re Attorney-General's Application [No 1]; R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 at [7]-[8], where the Court noted that "the vast proportion of offences [under s 112(1)] … are, and every indication is that they will continue to be, dealt with in the Local Court". 24 The relevance of that fact is, with respect, obscure. It is true that, in some circumstances, it may be appropriate for a sentencing judge in the District Court to take account of the fact that a particular offence can be disposed of summarily in a Local Court, where the maximum sentence available is two years imprisonment. The relevant authorities in support of that proposition are identified by Johnson J in Regina v El Masri [2005] NSWCCA 167 at [29]-[30]. In many cases, especially those involving offences with a maximum penalty (as in this case) of 14 years imprisonment, that factor will have little if any significance. How it might have operated in the present case was not explained. 25 In addition, the possibility that this factor might have had relevance was not drawn to the attention of the sentencing judge. Its relevance being by no means self-evident, it is inappropriate to raise a complaint in this Court that her Honour did not refer to the factor in her judgment. 26 The failure was ultimately relied upon as an indication of error, in support of a conclusion that the sentence was manifestly excessive. Reliance was placed upon El Masri at [45] where Johnson J (Hunt AJA and Hulme J agreeing) stated: "This Court functions within well-established jurisdictional boundaries with respect to an application for leave to appeal against sentence, primarily to ascertain whether the decision of the first-instance judge was in error and, if so, in what way it should be corrected: R v Vachalec [1981] 1 NSWLR 351 at 353. In circumstances where the learned sentencing Judge has made no reference to the summary disposal argument in his remarks on sentence, it is necessary to consider whether this omission is indicative of error. One way of testing this proposition is to consider whether the sentence itself appears manifestly excessive in all the circumstances of the case - if the factor had been taken into account and given appropriate weight, a substantially lesser sentence was appropriate in this case." 27 Those comments must be understood in the context of a sentence which the Court considered was "manifestly excessive": at [46]. That being so, the cause of the error did not need to be identified; nor was it. In the present case, the complaint was that the sentencing judge commenced with a sentence of four years, before allowing a reduction of 25% on account of an early plea of guilty. 28 That sentence was imposed in respect of an offence which took place at a dwelling house which was empty at the time of entry, but in circumstances where the applicant was literally caught in the act of carrying out the offence and was required to physically free himself from the grasp from one of the occupants, in order to escape. 29 Given his criminal record, and the fact that he was on parole, a significant emphasis needed to be placed on personal deterrence as well as on the absence of any mitigating factor which might be found resulting from an isolated lapse into criminality. 30 No case was made to demonstrate that a sentence of three years imprisonment, including a non-parole period of two years imprisonment, was outside the appropriate range for the offence in question, given the maximum penalty available. Conclusion 31 No error has been shown on the part of the sentencing judge in imposing the respective sentences for the two offences. Nor has it been demonstrated that the sentences imposed were manifestly excessive. 32 Were it not for the need to give a direction in relation to the period to be served on parole, this application would give rise to a question as to whether there were any substantial basis upon which it could be pursued. If there were not, it would usually be appropriate to refuse leave to appeal. However, it is not necessary to determine whether the case falls within that category. 33 The proposed orders of the Court are:

(1) Grant the applicant leave to appeal in respect of each of the sentences imposed by Ashford DCJ in the District Court at Parramatta on 1 December 2008.

(2) In relation to the second sentence, direct that the applicant be released on parole at the expiration of the non-parole period.

(3) Otherwise dismiss the appeal. 34 HOWIE J: I agree with the orders proposed by the Presiding Judge for the reasons given by his Honour. I wish merely to make a comment upon the second ground of appeal. The second ground raises a complaint that frequently appears before this Court and arises where there have been sentences imposed which are to be served wholly or partially cumulative with one another. It concerns the relationship between the aggregate or effective term of imprisonment to be served and the aggregate or effective non-parole period applying to that term. 35 For my part I do not see any inconsistency between the practice that has been adopted in this Court in applying the statutory ratio to an aggregate or effective non-parole period and the terms of s 44. In my opinion a judge is required in a case such as the present to consider the relationship between the period to be served before parole eligibility arising from the accumulation of the two sentences and the balance of the term of the sentence for the second offence in order to ensure a sufficient period of parole supervision. 36 It may be necessary to find special circumstances and reduce the non-parole period imposed on the second offence to bring about that result. This has been conventional sentencing practice in this State since at least 1992: see R v Simpson (1992) 61 A Crim R 58. However, the ultimate question to be asked is what is the least period the offender is required to serve before being eligible for parole? The answer to that question will depend upon a consideration of all the purposes of punishment and not simply the rehabilitation of the offender. 37 The ground is not made out in this case because her Honour did in fact find special circumstances in relation to the second offence and reduced the non-parole period accordingly. The effective non-parole period is slightly less than that which would follow upon an application of the statutory relationship. In this particular case, however, having regard to the applicant's record and the fact that he was on parole, a judge would have been justified in imposing an effective non-parole period that exceeded the statutory relationship. This her Honour did not do and the applicant in my view was fortunate that the Judge took the course that she did. 38 Like the Presiding Judge I am not persuaded that the result is not what her Honour intended nor am I persuaded that any lesser period of incarceration before release to parole is warranted. 39 HISLOP J: I agree with Justice Howie. 40 BASTEN JA: The orders of the Court therefore are as I have indicated. **********

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