Houri v R

Court of Criminal Appeal (NSW)|2013-10-03|Before: Emmett JA, Hulme J, Bellew J, Mr P

Judgment 1EMMETT JA: The applicant seeks leave to appeal against the severity of sentences imposed in relation to offences of aggravated armed robbery committed by him. He was sentenced in the District Court on 12 December 2012 to a total effective term of 7 years and 3 months, with a minimum custodial component of 5 years and 6 months, in respect of four offences against s 97(2) of the Crimes Act 1900 (NSW). The prescribed maximum penalty under that provision is imprisonment for 25 years. 2The grounds upon which the applicant seeks to rely may be summarised as follows: + upon finding that special circumstances existed in relation to the applicant, the sentencing judge erred in the exercise of her discretion in failing to adequately reflect that finding in the overall non-parole period imposed; and + the applicant has a justifiable sense of grievance by reason of disparity in the finding of special circumstances and the effective non-parole period imposed on him as compared with a co-offender. 3The applicant participated in the robberies committed at three hotels in February, April and June 2011. He pleaded guilty to two charges of aggravated robbery at one of the hotels. There were multiple offenders on each occasion. The offenders wore balaclavas and were armed with firearms or knives. 4The sentencing judge found special circumstances in relation to the applicant by reason of his age, the fact that it would be his first time in custody and the fact that he would need a substantial period under supervision in relation to rehabilitation. Her Honour, having found special circumstances in relation to the individual offences, altered the statutory ratio for each offence. In doing so, her Honour noted that the total non-parole period was very close to the statutory ratio when one has regard to the total sentence. 5It was accepted in the course of argument that this case did not involve a group of offenders participating in a common criminal enterprise, with individual offenders committing discrete offences in the course of such an enterprise. Out of the four offences for which the applicant was sentenced, only one was in common with the co-offender. There was no suggestion of any disparity between the sentences imposed. 6I have had the advantage of reading in draft form the proposed reasons of R A Hulme J. I agree, for the reasons given by his Honour, that leave to appeal should be granted, but that the appeal should be dismissed. 7R A HULME J: Essa Houri ("the applicant") was sentenced by her Honour Judge Wells SC in the District Court at Parramatta on 12 December 2012 for four offences of aggravated armed robbery. (One of the offences was an attempt in the sense of there having been an assault with intent to rob.) 8These offences are contrary to s 97(2) of the Crimes Act 1900 (NSW) and the prescribed maximum penalty is imprisonment for 25 years. 9For three of the offences her Honour imposed sentences of 5 years with non-parole periods of 3 years 3 months and for the fourth offence she imposed a sentence of 5 years 3 months with a non-parole period of 3 years 6 months. 10There was a degree of partial accumulation of sentences such that the total effective term was one of 7 years 3 months with a minimum custodial component of 5 years 6 months. 11Related summary offences were also dealt with by her Honour (possession of ammunition without a licence and possession of a steroidal agent). The applicant was convicted but no penalty was imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 12The applicant seeks leave to appeal against the sentences on the following grounds: 1. Upon finding that "special circumstances" did exist in the case of the Applicant the sentencing judge erred in the exercise of the sentencing discretion in failing to adequately or at all reflect the said finding in the overall non parole period imposed. 2. The Applicant has a justifiable sense of grievance by virtue of the disparity in the finding of "special circumstances" and the effective non-parole period imposed on him as compared to his co-offender Mouhamed Elabdallah.

Facts 13Given the nature of the proposed grounds of appeal it is unnecessary to review the facts of the offences in any great detail. 14A series of robberies in licensed premises in the Sydney metropolitan area were investigated by police. It was found that there were a number of similarities: they were predominantly committed in the early hours of the morning as hotel staff conducted closing procedures; they usually involved two or three persons armed with handguns; and emergency access points were breached before staff were confronted. These circumstances indicated to investigating police that "inside information" concerning security measures and cash handling procedures at each hotel was being used by the offenders. Some of the offenders were found to be licensed security guards. 15The applicant participated in robberies committed at three hotels: the Greenacre Hotel on 27 February 2011; the Bull and Bush Hotel at Baulkham Hills on 28 April 2011 and the Cedars Tavern at Emerton on 14 June 2011. 16The applicant pleaded guilty to two charges of aggravated armed robbery in relation to the Greenacre incident. There was a robbery of personal property from a security guard and a robbery of $2000 of hotel takings from the manager. On this occasion the three offenders each wore balaclavas and they were armed with one firearm and two knives. The applicant's co-offenders were Mohamad Kouzi and Shadi Salameh. 17The Bull and Bush Hotel robbery involved three offenders. Two of them, the applicant and Mouhamed Elabdallah, entered the hotel while the applicant's brother, Moussa Houri, waited outside. The offenders wore hooded jumpers and black balaclavas. The applicant was armed with a tomahawk and Elabdallah was armed with a pistol. They left without taking anything when they were told that the cash could not be accessed due to a time lock on the safe. The usual hotel takings on that night of the week averaged $50,000. 18The Cedars Tavern robbery involved five offenders. Two of them, the applicant and Elabdallah, entered the hotel, both armed with handguns and wearing balaclavas. They took $50,000 in cash from the office while the manager was hiding in the toilet out of fear. 19The applicant was arrested on 26 August 2011 and remained in custody thereafter.

Personal circumstances of the applicant 20The applicant was aged 19 at the time of the offences. His upbringing was marred by episodes of domestic violence between his parents who separated in about 2006. This was said to have had an emotional impact upon him during his formative years but he maintained a close relationship with both parents. 21The applicant had no criminal history to speak of. The judge noted that his custodial disciplinary record since his arrest was "not ideal". 22There were a number of matters identified in the applicant's subjective case that the judge described as "significant". The first was that he was involved in a motor vehicle accident in December 2009 in which he sustained significant injuries and was hospitalised. He was left with a crush fracture of a lumbar vertebra and chronic lower back pain. 23The applicant gave an inconsistent account about illicit drug use that the judge could not accept, although she said that it seemed likely he was using illicit drugs at some stage. 24Dr Nielssen, forensic psychiatrist, diagnosed the applicant with a depressive illness, in remission; anxiety disorder, also in remission; and substance abuse disorder. The judge observed: Overall, Dr Nielssen felt that those underlying psychiatric matters were likely to have been a contributing factor to his offending behaviour. That matter will be taken into account in terms of consideration of his subjective background. In terms of it going to a question of affecting his judgment and his moral culpability, those matters would be given only the slightest weight in this particular matter. He was well aware of the effect of drugs upon him, and he was also well aware that he would be able to get professional help. 25The final "significant" matter related to "the incarceration of [the applicant's] older brother in relation to a murder offence and his significant illness and death subsequent to the commission of these armed robbery offences". The judge accepted that this had a significant effect upon him.

The judge's assessment of sentence 26The judge considered the guideline range of sentence of 4 to 5 years for the typical armed robbery case described in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. She noted the higher maximum penalty for the offence of aggravated armed robbery and observed that each of the applicant's offences were "much more serious than those considered in Henry". In relation to the latter she referred to the considerable amount of planning involved in the applicant's offences and that there were co-offenders involved. 27Her Honour regarded the fourth offence as more serious because it was preceded by three others; the applicant actually held a handgun and there were two guns involved; the applicant was instrumental in the preparation for the offence; the proceeds were $50,000; and the car used by the offenders was later burnt. 28The issue of finding special circumstances, thus allowing the judge to impose a non-parole period that was less than the usual three-quarters of the head sentence is the subject of the first ground of appeal and so I will quote what the judge said about it in full: In passing sentence I propose to find special circumstances which will reduce the statutory ratio substantially for each of the four offences, though on the overall total sentence the statutory ratio will not reduce substantially. That will be done because there is already a considerable reduction for each of the individual offences, of the statutory ratio. Furthermore, the offender will spend a substantial period of time on parole once the custodial period has ended. The reasons for finding special circumstances are: his age; that it is his first time in custody; and that he will need that substantial period under supervision in relation to his rehabilitation. 29After she had pronounced the sentences, her Honour returned to the issue of special circumstances: Again, I find special circumstances in relation to the individual offences and alter the statutory ratio, though I note that the total non-parole period is very close to the statutory ratio when one has regard to the total sentence, and that is what I intend in passing the sentence.

Ground 1 - error in not reflecting the finding of special circumstances in the overall sentence 30It was submitted for the applicant that despite her Honour foreshadowing that the finding of special circumstances would reduce the statutory ratio for each of the four offences, the end result was that the applicant was sentenced to an overall sentence with a non-parole period that actually exceeded the statutory ratio. 31Reference was made to a variety of matters, some adverted to by the judge and some not, which would have justified a reduction of the non-parole component of the overall sentence. 32Cases referred to by the applicant included those where sentencing judges had indicated an intention to find special circumstances so as to allow an offender a longer period of parole supervision but, through inadvertence or miscalculation in the process of accumulating sentences, did not impose an overall sentence that gave effect to that intention.

Determination of Ground 1 33There is no merit in this ground. Whilst there were factors that could have justified a reduction in the non-parole component of the overall sentence, they did not mandate that the judge should do so. It cannot be said that it was not open to the judge in the exercise of her sentencing discretion to impose a non-parole component that was about three-quarters (it was a fraction over 75 per cent) of the overall term. 34I do not believe that there was any inadvertence or miscalculation by the judge. She imposed individual sentences and partially accumulated them to achieve the precise result that she said she intended. In the first passage quoted above she said that the in the overall total sentence "the statutory ratio will not reduce substantially". In the second passage she noted that "the total non-parole period is very close to the statutory ratio when one has regard to the total sentence, and that is what I intend in passing sentence". 35It is clear that the judge appreciated what the end result was because after announcing the individual sentences and before making the second of the statements I have quoted she said: So what that means is, your total term is seven years and three months, expiring on 25 November 2018. The total non-parole is five years and six months and dates from 26 August 2011 to 25 February 2017, which is your earliest release date. 36This case is very different to the types of cases referred to on the applicant's behalf: see, for example, the discussion of this issue in Caristo v R [2011] NSWCCA 7 at [33]-[37]. 37I believe that leave to appeal should be granted in respect of this ground, despite its ultimate lack of success. Her Honour's approach in finding special circumstances in relation to each of the individual sentences is somewhat puzzling. Given that the effect of the sentence structure was what she intended, there was only utility in finding special circumstances in relation to the last of the sentences to be served so as to preserve the equivalent of the statutory proportion in the overall result. The only explanation I can think of for her Honour's approach is that she recognised that there were factors that could have amounted to special circumstances, but that in the exercise of her discretion she did not consider it appropriate to give effect to such a finding in the overall sentence.

Ground 2 - parity in relation to the co-offender Elabdallah

Sentencing of Mouhamed Elabdallah 38Mouhamed Elabdallah was sentenced by his Honour Judge Sides QC after the applicant had been sentenced. He had pleaded guilty to offences of aggravated armed robbery at the Cedars Tavern at Emerton on 14 June 2011; conspiring to commit an aggravated armed robbery on the Crown Hotel at Revesby; aggravated armed robbery at the Brewhouse at Lalor Park; and aggravated armed robbery at the El Toro Hotel at Warwick Farm. 39Whilst the agreed facts tendered in the applicant's case indicated that Elabdallah was involved in the Bull and Bush Hotel robbery, the only charge they had in common related to the Cedars Tavern robbery. 40In sentencing Elabdallah for his offences Judge Sides took into account some further offences listed on a Form 1 document (Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act). These were three offences of aggravated kidnapping which arose from the offenders in the Brewhouse and El Toro Hotel offences having tied up some victims. 41In the context of discussing parity with Elabdallah's co-offenders, Judge Sides considered the sentencing of the applicant in relation to the Cedars Tavern robbery and Milad Salama in relation to the Brewhouse robbery and being an accessory after the fact to the Cedars Tavern robbery. He assessed relevant similarities and dissimilarities and stated that he was applying the principle of parity in relation to the robberies at those two venues. 42Judge Sides imposed an aggregate sentence upon Mr Elabdallah of 9 years 6 months with a non-parole period of 6 years. He indicated that if he had imposed individual sentences, he would have imposed a sentence for the Cedars Tavern robbery of 5 years 6 months.

Submissions for the applicant 43It was pointed out in submissions for the applicant that the aggregate sentence imposed upon Elabdallah involved a non-parole period that was 63 per cent of the overall sentence. This was to be contrasted with the almost 76 per cent proportion in the sentencing of the applicant. It was contended that the nature of the offending of the two men was sufficiently similar that the applicant was left with a justifiable sense of grievance that warranted the intervention of this Court. 44No authorities were cited in the submissions for the applicant. But in the light of two cases to which the Crown drew to the Court's attention (see below), it was conceded that in relation to a ground of appeal of this nature, there must "as much as possible" be a comparison of "apples with apples". It was submitted that there were sufficient similarities in the two cases to justify such a comparison and to give rise to the sense of grievance asserted.

Determination of Ground 2 45It was conceded in the course of oral submissions that this was not a case of a group of offenders participating in a common criminal enterprise with individual offenders committing discrete offences in the course of such an enterprise: see, for example, Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540; and Henderson v R [2012] NSWCCA 65. As a result parity, or proportionality, does not arise for consideration in relation to the overall offending and the overall sentences imposed. 46Out of the four offences for which the applicant was sentenced, only one was in common with the co-offender Elabdallah. He received a sentence (indicatively) for the Cedars Tavern robbery of 5 years 6 months, whereas the applicant's head sentence for that robbery was one of 5 years. There was no complaint (nor could there be) about this disparity. 47Even if parity, or proportionality, was a relevant issue in relation to the applicant and Elabdallah, the problem for the applicant is that his sentencing, and that of Elabdallah, proceeded upon a substantially different factual basis, both in terms of the offences for which they were to be sentenced and in terms of their respective subjective cases. An argument that the applicant has a justifiable sense of grievance in that a finding of special circumstances was reflected in the overall sentence imposed upon Elabdallah and not in his own case must, for that reason, also fail. 48The two cases to which the Crown drew attention amply support this proposition. In R v Do [2005] NSWCCA 209, Howie J (with whom Studdert and Latham JJ agreed), after referring to what he had said in an earlier case, stated: [19] I maintain the view that I expressed in those passages that generally disparity does not arise simply from the fact that a finding of special circumstances was made in respect of one co-offender but not in respect of the other. I am prepared to accept that there may be a case where, all relevant facts and circumstances being equal, a finding of special circumstances in the case of one offender but not in the other may give rise to a justifiable sense of grievance. But in the present case not all things were equal because of the different findings made in respect of the criminality of the two offenders and the appropriate head sentences. 49The other case to which the Crown referred, Lau v R [2010] NSWCCA 43, provided an example of a situation when the parity principle could be invoked because of what were considered to be the "indistinguishable" personal circumstances of the applicant and his co-offender. McClellan CJ at CL (with whom James and Davies JJ agreed) endorsed (at [15]) Howie J's proposition in R v Do that "there may be cases where all relevant facts and circumstances being equal, a finding of special circumstances in the case of one offender and not in the other may give rise to a justifiable sense of grievance". 50In present case there was no equality of "all relevant facts and circumstances". So, even if there could be a legitimate comparison of the sentences imposed upon the applicant and upon Elabdallah, there is no legitimate basis for the applicant to have a sense of grievance that special circumstances were found in Elabdallah's case but not his own.

Orders 51I propose the following orders:

Leave to appeal granted.
Appeal dismissed. 52BELLEW J: I agree with R A Hulme J.

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: 12 November 2013

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