HOEBEN CJ AT CL: I agree with Hidden AJ and the reasons which he gives.
GARLING J: I agree with the orders proposed, for the reasons given, by Hidden AJ.
HIDDEN AJ: On 21 May 2015, the applicant, Mohamad Majzoub, was arraigned in the District Court on an indictment containing, in all, seventeen counts. The counts were numbered 1 to 15, but the counts numbered 4 and 9 were split into two alternative counts (expressed as 4a and 4b, and 9a and 9b). The charges arose from, or were related to, what was alleged to be a sustained course of violence inflicted by the applicant upon a woman with whom he was in a relationship. Counts 1 to 11 charged various offences of violence and of detaining for advantage committed over a period between October 2011 and November 2013. The applicant was arrested in respect of those charges on 15 November 2013. Counts 12 to 15 alleged that between December 2013 and March 2014 he attempted to influence the complainant not to give evidence against him.
On his arraignment the applicant pleaded guilty to counts 3, 12 and 15 (common assault, and attempts to influence the complainant not to give evidence made directly by him and through one of his sisters). On 7 March 2016, the first day of the trial of the remaining counts, he also pleaded guilty to counts 13 and 14 (attempts to influence the complainant not to give evidence through his brother and another sister). He was found guilty of counts 4b, 5, 6, 9a, 10 and 11. He was found not guilty of count 8 and the jury could not agree in relation to counts 1, 2 and 7. The Director of Public Prosecutions subsequently directed no further proceedings in relation to those counts.
For the offences to which the applicant had pleaded guilty and of which he had been found guilty, Norton DCJ sentenced him to an aggregate term of imprisonment for 12 years with a non-parole period of 9 years, commencing on 15 October 2014. That sentence was partly accumulated upon an aggregate sentence for other offences imposed upon him by Bennett DCJ, on appeal from the Local Court, while he was in custody in respect of the present matters.
The applicant seeks leave to appeal against the sentence. He appeared in this Court without legal representation. The application is out of time but in the circumstances, there being no objection by the Crown, an extension of time should be granted.
In respect of the counts to which the applicant had pleaded guilty, her Honour allowed different discounts of the indicative sentences which varied according to when they were entered. For the counts to which he pleaded guilty at arraignment, counts 3, 12 and 15, she allowed a discount of 20% and for the counts to which he pleaded guilty on the first day of the trial, counts 13 and 14, a discount of 12%.
In the Crown's submissions there is a helpful table setting out the counts, the relevant provisions of the Crimes Act 1900 (NSW) and the maximum sentences provided for them, together with a brief description of each offence, the plea, the notional starting point of sentence for the counts where there were pleas of guilty, and the indicative sentence for each offence. There is also set out a brief statement of her Honour's finding as to the gravity of each of them. It is appropriate to set out that table in these reasons.
Section & Act Particulars Maximum penalty Plea Discount and notional starting point Indicative sentence and objective seriousness
Count and offence date
Count 3 Pleaded guilty 8 months 6 months 2 weeks
Assault s 61 Crimes Act 1900 Pulling the victim by the arm to go with him outside the post office 2 years -at arraignment on 21.4.15 20% "…a serious offence which would have distressed the victim."
Between 1.6.12 & 31.7.12 ROS: 22
Count 4B 2 years 6 months
Assault occasioning actual bodily harm s 59(1) Crimes Act 1900 Assaults (slapping, throwing her against walls & cupboards, kicking in ribs, punch to face) causing several traumatic injuries to the head and face including bruising and swelling 5 years Guilty verdict n/a "I find this a serious offence." ROS 22
Between 28.10.12 & 17.11.12
Count 5 2 years
Possess offensive weapon with intent s 33B(1)(a) Crimes Act 1900 Swinging baseball bat toward victim's head 12 years Guilty verdict n/a "I find this a serious offence."
22.1.13 ROS 22
Count 6 2 years 6 months
Assault occasioning actual bodily harm s 59(1) Crimes Act 1900 Striking victim on the head with the baseball bat causing her to fall to the ground and black out; two stitches requires to a laceration to the head 5 years Guilty verdict n/a "…am satisfied this was a very serious instance of actual bodily harm."
22.1.13 ROS 23
Count 9A 4 years
Aggravated detain for advantage s 86(2)(b) Crimes Act 1900 Victim detained at offender's home for between a few days and a week, in the course of which she was punched to the nose causing a fracture 20 years Guilty verdict n/a "The length of detention coupled with the severity of the injury … makes this a very serious offence."
Between 1.10.13 & 20.10.13 ROS 23
Count 10 3 years NPP 2 years 3 months
Reckless wounding s 35(4) Crimes Act 1900 Stabbed with a knife to the leg through victim's jeans causing a wound 7 years / SNPP 3 years Guilty verdict n/a "…I find this offence falls just below the mid-point of objective seriousness."
Between 20.10.13 & 6.11.13 ROS 23
Count 11 3 years
Detain for advantage s 86(1)(b) Crimes Act 1900 Detaining the victim at the offender's unit for between 3 and 6 days 14 years Guilty verdict n/a "I find this was a serious offence."
Between 20.10.13 & 6.11.13 ROS 24
Count 12 Pleaded guilty 5 years 4 years
Threaten witness s 322(a)/324 Crimes Act 1900 Threatening to cause injury to victim's family if she went to court to give evidence 14 years -at arraignment on 21.4.15 20% "I find this was a very serious offence."
Between 8.12.13 and 10.12.13 ROS 25
Count 13 Pleaded guilty 4 years 3 years 6 months
Influence witness s 323(a)/324 Crimes Act 1900 The offender told his brother to call and persuade the victim to not go to court to give evidence against him 14 years -at arraignment on 21.4.15 12% "It is a serious offence."
Between 25.11.13 & 18.3.14 ROS 25
Count 14 Pleaded guilty 4 years 3 years 6 months
Influence witness s 323(a)/324 Crimes Act 1900 The offender told his friend to call his sister and tell her to call and persuade the victim to not go to court to give evidence against him 14 years -at arraignment on 21.4.15 12% "…this was a serious offence…"
30.11.13 ROS 25
Count 15 Pleaded guilty 4 years 3 years 2 months
Influence witness s 323(a)/324 Crimes Act 1900 The offender told his sister to speak to and persuade the victim to not go to court to give evidence against him 14 years -at arraignment on 21.4.15 20% "It is a serious offence."
17.3.14 ROS 26
[2]
The brief descriptions of the offences lack the surrounding detail from which their gravity might be fully assessed, but they are adequate for present purposes.
[3]
Subjective case
Over the period embraced by the offences the applicant was aged between 31 and 33. He is now 39. He has an extensive criminal history, commencing in the Children's Court and comprising a variety of offences, including drug offences, stalking and intimidating and contravening apprehended violence orders. Apart from the sentence imposed upon him by Bennett DCJ to which I have referred, he had been sentenced to a number of other terms of imprisonment. All the present offences were committed while he was on some kind of conditional liberty.
Before her Honour were a pre-sentence report, a psychological report of Mr Tim Watson-Munro and character references from members of the applicant's extended family. He is the youngest of five siblings, and arrived in Australia from Lebanon when he was an infant. His background was somewhat disturbed. During his early years there is a history of his father assaulting his mother under the influence of alcohol. His father returned to Lebanon when he was five and he was brought up by his mother.
He left school in year 8, and has had very little employment ever since. He began to use illicit drugs at the age of 14, escalating from cannabis to other drugs, including ice. At the time of his arrest he had been using ice on a daily basis.
Mr Watson-Munro noted that the applicant had expressed what he described as "appropriate remorse". The author of the pre-sentence report, Ms Kerryann Thomas, recorded that he expressed shame for his behaviour, although he felt that the victim was partly to blame because of her own actions. Mr Watson-Munro reported symptoms of major depression with features of anxiety disorder. He noted that the applicant had been drug free for a substantial period since being taken into custody, but was of the view that he would require additional help to guard against relapse. Annexed to his report was a treatment plan, which included regular urinalysis and cognitive behaviour therapy. From the character references it was apparent that the applicant enjoyed the continuing support of his family.
[4]
The application
The applicant filed handwritten grounds and a very brief written submission. The effect of that material is that he complains that the sentence is manifestly excessive. In particular, he seeks a lesser non-parole period (while acknowledging that this may involve an increase of the balance of term), and argues that there should be greater measure of concurrency in the indicative sentences. He addressed these matters briefly in oral submissions, and read a document in which he expressed his remorse for his actions, attributing them to some extent to his drug use at the time, and asserted that he had not used drugs now for some years and had been undertaking courses while in custody.
The applicant is to be commended if he is now pursuing his rehabilitation in the manner which he has described. However, this Court can intervene only if error is shown in her Honour's approach to the sentencing task or the aggregate sentence is established to be manifestly excessive.
[5]
Non-parole period
The aggregate term of imprisonment being 12 years, the non-parole period of 9 years was the statutory norm in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that is, three-quarters of the head sentence. To depart from that proportion her Honour would need to have found special circumstances within the meaning of that provision. No submission had been made to her on behalf of the applicant that she should find special circumstances but, in any event, she addressed that issue. She noted the applicant's difficult childhood, the violence perpetrated by his father upon his mother, and his early resort to illicit drugs. She also observed that he had the support of his family, but noted that he had enjoyed that support during the period of the offences. She found him to have "moderate prospects of rehabilitation", and declined to make a finding of special circumstances.
That approach was open to her Honour. It is well established by authority that the finding of special circumstances is a discretionary matter, and the fact that there are features of a case which might support a finding of special circumstances does not compel that finding to be made: R v Fidow [2004] NSWCCA 172 at [22]. It might also be noted that the sentence provides for a period of parole eligibility of three years, a substantial time in which the applicant's rehabilitation might be fostered in the community.
No error has been shown in this respect.
[6]
Accumulation/concurrence
As noted, at the time the applicant was sentenced in the present case he was serving a term of imprisonment imposed upon him by Bennett DCJ. That was an aggregate sentence of 22 months with a non-parole period of 15 months, dating from 16 November 2013, for a number of offences, including stalking and intimidating and contravention of an apprehended violence order relating to the same victim. There was some overlap between those offences and two of the present offences, as her Honour noted. Equally, as her Honour also recognised, there was overlap between most of the present offences as they involved the same victim and arose in the context of domestic violence. However, from this her Honour excluded counts 13, 14 and 15, which were offences of attempting to enlist others to persuade the victim not to give evidence against him.
Her Honour gave careful consideration to the issue of accumulation or concurrence, with an eye to the principle of totality. That principle was examined by Davies J (with whom Hoeben CJ at CL and Beech-Jones J agreed) in Pannowitz v R [2016] NSWCCA 13 at [40]:
"As the Applicant acknowledged the matter of the extent of accumulation is a matter of judicial discretion made in accordance with established principle: R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at [7]. In Regina v XX [2009] NSWCCA 115 Hall J (with whom Tobias JA and Kirby J agreed) set out at [52] a number of propositions that his Honour said could be derived from the case law. Those propositions focused on a consideration of the similarity, differences and the degree of connection between the offending both in time and type to ascertain the extent to which the sentence for one offence can comprehend and reflect the criminality of the other. To those matters may be added a need to ensure public confidence in the administration of criminal justice to avoid the perception that an offender will not be punished more severely for committing multiple offences: Khawaja v R [2014] NSWCCA 80 at [24]-[25] following R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46]."
On accumulation and concurrence generally, her Honour also referred to the summary of the relevant principles by Hall J in R v XX [2009] NSWCCA 115; 195 A Crim R 38 at [52]. From this, her Honour extracted the relevant approach as follows:
"Firstly questions of accumulation are discretionary. The key concern is that the sentence imposed for each offence is appropriate and the total sentence properly reflects the overall criminality of the offending. Applying Cahyadi v R [2007] NSWCCA 1 at [27] Howie J stated that if the sentence for one offence can comprehend and reflect the criminality of the other offence, then the sentence ought to be concurrent because 'otherwise there is a risk that the combined sentence will exceed that which is warranted to reflect the total criminality of the two offences. If not the sentences should be at least partly cumulative. Otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences'."
The non-parole period imposed by Bennett DCJ expired on 15 February 2015. Her Honour considered it appropriate to backdate the sentence she was passing by 4 months so as to commence on 15 October 2014. As to the present offences, her Honour noted that they occurred over a lengthy period of time and that some were more serious than others. She concluded that, if she were sentencing for the offences separately, she would have made the sentence for most counts partly accumulative upon others.
The Crown prosecutor noted that the total of the indicative sentences for the present offences is 29 years and 10 months, so that the aggregate sentence of 12 years demonstrates a substantial measure of concurrence. Her Honour's determination in that respect, and her decision as to the measure of the accumulation of the aggregate sentence upon the sentence imposed by Bennett DCJ, demonstrate an exercise of discretion entirely consistent with principle.
Here also no error has been shown.
[7]
Manifestly excessive?
It remains to consider whether, in any event, the aggregate sentence is manifestly excessive. Consideration of this ground acknowledges the measure of discretion available to a sentencing judge in determining the appropriate sentence, so that a sentence will be found to be manifestly excessive only when it has been shown to be "unreasonable or plainly unjust", the time honoured expression extracted from the High Court decision of House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505. The principles were recently restated by this Court in Hughes v R [2018] NSWCCA 2 at [86]:
"When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles … :
(1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;
(2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;
(3) it is not to the point that this Court might have exercised the sentencing discretion differently;
(4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and
(5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust."
In her comprehensive reasons for sentence her Honour examined the facts of each offence in some detail. Her assessment of the objective gravity of each of them is summarised in the table set out above, and each of those assessments was clearly open to her. The offences constitute a pattern of domestic violence of considerable gravity. On a number of occasions this Court has emphasised the seriousness of domestic violence and the need for denunciatory and deterrent sentences (while giving appropriate weight to the offender's subjective circumstances and prospects of rehabilitation). The Court recently restated its approach in Patsan v R [2018] NSWCCA 129. At [41]-[43], Adamson J (with whom Bathurst CJ and Leeming JA agreed) observed:
"41. The High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 recognised the role of the criminal law in the context of domestic violence and authorised the giving of significant weight to specific and general deterrence, denunciation and community protection. The High Court referred, at [54], to:
"the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community."
42 Recently the High Court in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 said at [21] that:
"current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of the offence because of change in societal attitudes to domestic violence."
43 The approach sanctioned by the High Court in Munda v Western Australia and The Queen v Kilic has frequently been applied by this Court: see, for example: Cherry v R [2017] NSWCCA 150 at [78]-[79]; and Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224 at [83]-[84]. …"
Equally, no exception could be taken to her Honour's characterisation of the gravity of the offences of attempting to influence the victim not to give evidence (counts 12 to 15), offences which sought to interfere with the proper administration of criminal justice. Generally, it is to be borne in mind that the offences were committed whilst the applicant was subject to conditional liberty in one form or another.
Her Honour fairly described the applicant's subjective case as "far from compelling". Nevertheless, as I have noted, she took into account his difficult childhood and his early resort to illicit drugs, together with his current family support, finding that he had moderate prospects of rehabilitation. Finally, her Honour allowed appropriate reductions of sentence for his pleas of guilty.
The aggregate sentence, including the non-parole period, were well within the legitimate bounds of the exercise of her Honour's discretion. The sentence has not been shown to be unreasonable or plainly unjust.
[8]
Order
I would be prepared to grant the applicant leave to appeal, but would dismiss the appeal.
[9]
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Decision last updated: 08 May 2019