R v Bilal BAKKOUR; R v Nasis JAVELOSA; R v Hussein EL-SKAF; R v Mohamad HELLO

District Court of NSW|2009-11-20

These proceedings and his personal circumstances have caused significant stress on his wife who suffers from psychological stress and weight loss. She has been diagnosed as having a major depressive disorder with severe anxiety and stress.

Mr Bakkour has three previous convictions committed between 2000 and 2003 for goods in custody and car theft. He expressed remorse in his evidence. That is also demonstrated by his plea of guilty and he apologised in his evidence. There is a psychological report provided by Mr John Taylor who assessed him as having a low to moderate recidivism risk and good prospects of rehabilitation. He is obviously regarded by employers and assessed by Mr Taylor as being a person who works hard.

Exhibit 10 in Mr Javelosa's case is a detailed report from a consultant psychologist, Dr John Jacmon. Dr Jacmon described Mr Javelosa as having post traumatic stress disorder as well as depression, anxiety and substance abuse, specifically cocaine.

As Mr Brewer pointed out, he suffered extraordinary trauma in early life and it was not surprising that he had the difficulty which he had adjusting in Australia. That would include the mores of the society which he had migrated to. As Mr Brewer said, some people cope with such trauma and others don't. The drugs which he was taking at the time resulted in what Dr Jacmon described as a highly impaired judgment. He is well regarded and has a good reference from his employer. He now sees a doctor every fortnight and his urinalysis indicates that he is presently drug free. He has a good relationship, although it has been troubled in the past, with Sofia Javelosa, his girlfriend who gave evidence on his behalf.

He too demonstrated remorse in his evidence. Dr Jacmon thought that his post traumatic stress disorder and depression were likely to worsen, but that he had made an excellent start to a treatment plan which Dr Jacmon prepared. Mr Javelosa too has prior convictions, more than Mr Bakkour. Between 2000 and 2003 he has been convicted of car theft, larceny and goods in custody as well as possessing implements and entering land illegally. In fact, the number of convictions is not significantly greater than Mr Bakkour's, but there are more convictions.

In Mr Javelosa's case he too was regularly reporting whilst he was on bail and was subject to a curfew. The delay in bringing his case to court was brought about by the same need to translate the telephone intercept product from Arabic into English.

In Mr Bakkour's case he has asked me to take into account when I am sentencing him some other offences that he has pleaded guilty to and which have been placed on to a document in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999 called a Form 1. One of those offences is conspiracy to obtain money by deception and the other is goods in custody. I will take into account, when sentencing him, those offences and will sign the form accordingly.

In Mr Javelosa's case he does not ask me to take into account any additional offences under the Crimes (Sentencing Procedure) Act, but I do note that when he committed the offence he has pleaded guilty to he was at the time at liberty on a Community Service Order which a court had imposed upon him. In other words, the court had released him into the community instead of imposing a more serious penalty on condition that he undertake certain community work and he abused that lenient option which the court offered to him to engage in this very serious crime. Obviously, an important factor to take into account in sentencing for both of these crimes is the deterrence of each of the offender from committing other offences as well as stopping others from committing similar crimes.

Because of the seriousness of the crime which each has been charged with and the extent to which this is a very significant example of such a serious crime, in my opinion no other sentence than full time custody is appropriate for both of these offenders.

In Mr Bakkour's case given that the finding that his crime was above the mid range of objective seriousness for the reasons that I have given and given that I am taking into account two other crimes on the form, I regard an overall sentence of eight years imprisonment as being an appropriate sentence. However, Mr Bakkour has pleaded guilty and that means that the administration of justice is assisted and made much more expeditious and the courts reward such a plea of guilty by discounting the offence.

In addition, in Mr Bakkour's case I have taken into account exhibit E. I place significant weight on the contents of exhibit E and I regard an appropriate combined discount for the plea of guilty and the contents of exhibit E as being just under forty-five per cent. In other words, I am going to discount, that is, reduce the eight years sentence which I would otherwise impose on Mr Bakkour by just under forty-five per cent so that the appropriate sentence for him is reduced to four years and six months.

The non-parole period for a sentence of four years and six months would normally be about three years and four months. Normally a non-parole period is about seventy-five per cent of the full sentence. Mr Peluso argues that there are special circumstances which warrant me reducing the non-parole period. He says this will be his client's first time in gaol and there are good prospects of rehabilitation and employment. Those submissions I accept. I propose to fix a non-parole period of two and one half years instead of three years and four months. Shortly I will sentence Mr Bakkour to a total of four and a half years imprisonment with a non-parole period of two and a half years which I will backdate by one month and twenty-four days.

In Mr Javelosa's case, taking into account the crime which he has committed which is almost as serious as Mr Bakkour's, in fact it involves only two fewer cars, and taking into account that he committed that crime whilst he was in the community serving a community service order, but also taking into account his own personal circumstances I regard an overall sentence as seven and one half years as an appropriate overall sentence.

However, Mr Javelosa also has pleaded guilty at the first opportunity. This makes the administration of justice much more manageable for the authorities. I propose to discount, that is, reduce his sentence by twenty-five per cent because he has pleaded guilty. That reduction would bring the sentence to just over sixty-seven months and I propose to round that down to sixty-six months, that is, five and one half years.

The normal non-parole period of seventy-five per cent for such a sentence would be four years and one and a half months, but in this case Mr Brewer also argues that there are special circumstances to adjust the non-parole period. His client will need to undergo drug rehabilitation and continue his adjustment to society when he leaves prison. I propose to reduce his non-parole period from four years and one and a half months down to three years so that shortly I will sentence him to imprisonment for five and one half years with a non-parole period of three years which I will backdate by two months and twenty-six days.

Mr Bakkour, if you would stand up please I am going to sentence you now. Bilal El Cheikh Bakkour, I convict you of the offence of knowingly facilitating organised car rebirthing activities and I set a non-parole period of two and one half years which will commence on 25 September 2009 and expire on 24 March 2012. The balance of the term of the sentence will be two years from 25 March 2012 to 24 March 2014.

Mr Javelosa, I set a non-parole period for your sentence of three years to commence on 24 August 2009 and to expire on 23 August 2012. The balance of the term will be two and a half years to commence on 24 August 2012 and to expire on 23 February 2015.
In each case I have regarded it as appropriate to depart from the standard non-parole period of four years because each man pleaded guilty and, in Mr Bakkour's case, because of s 23 of the Crimes (Sentencing Procedure) Act.

Now Ms Duncalf, Mr Peluso, Mr Brewer, any factual errors or mathematical errors or anything that I have omitted or should attend to?

DUNCALF: Your Honour, there is a matter of a confiscation application in each of those cases.

HIS HONOUR: All right, I'll hear you in a moment. I need to explain.

Mr Bakkour, your gaol sentence is four and a half years. I have specified that you must serve at least two and a half years in gaol. Your non-parole period is two and a half years. I have backdated it by one month and twenty-four days because of the time that you spent in custody. So I backdated it to commence on 25 September this year. Your non-parole period will expire on 24 March 2012. That is the first date, 24 March 2012, on which it appears you will be eligible to be released on parole back into the community. Whether or not you are released on parole depends upon the Parole Authority, not upon me. The balance of the term of two years will be on parole, provided you are released at the end of your non-parole period.

Mr Javelosa, your overall sentence is five and a half years. Your non-parole period is three years. I too have backdated that by two months and twenty-six days. So your sentence started on 24 August 2009 because of the time you spent in custody. Your non-parole period expires on 23 August 2012. 23 August 2012 is the first date upon which it appears that you will be eligible for parole. Whether or not you get parole, as I said to Mr Bakkour, will depend upon the Parole Authority and once you are released you will be on parole. If you are released on that day then you will be on parole for two and a half years.

Ms Duncalf? DUNCALF: The Crown is just seeking to stand the confiscation application over in both of those cases.

HIS HONOUR: All right. I don't think there is any process filed, is there?

DUNCALF: No, not yet, your Honour. I don't know whether the matter needs to stay before your Honour or whether the matter can go back to the Sydney District Court.

HIS HONOUR: I don't know the answer to that either, why don't you make some enquiries. I imagine somebody will be here next Tuesday for when I'm sentencing Mr Hello and Mr El-Skaf. Perhaps you can find out in the meantime. I don't mind either way. I'm here next week and then I'm in Broken Hill for three weeks and then I'm not back in crime till March, back out here. So you make some enquiries and perhaps if you or Mr Vautin could let me know on Tuesday morning?

HIS HONOUR: Okay. Now Mr Jankowski and Mr Velcic, do you have an application?

JANKOWSKI: Yes, I do your Honour. I'd ask your Honour to continue bail till next Tuesday.

I have determined that a full time custodial sentence is appropriate and the risk of flight is obviously very significant at this stage. So your client is refused bail. Do you have an application, Mr Velcic?

VELCIC: Does that also apply to my client, your Honour?

Mr Hello and Mr El-Skaf, both of your lawyers have applied for bail, but I have refused bail. That means that you are going into custody now because I have determined I can tell you that I will be sentencing you to full time custody and it is not appropriate to release you in my opinion because of the increased risk of flight. You are both bail refused.

Both Mr El-Skaf and Mr Hello are remanded in custody until Tuesday 24 November 2009 before me here at Parramatta at 10 o'clock. Again I will direct that an Arabic interpreter be available on that day and my associate will make sure that it happens so far as it is within her power.

JANKOWSKI: Your Honour, I'm wondering whether it's appropriate to have two of them, only that your Honour is not sentencing as it were them separately, but referring to both in the one set of remarks?

HIS HONOUR: Yes, I see your point, we'll order two, yes, two Arabic interpreters. Anything else?

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CITATION: R v Bilal BAKKOUR; R v Nasis JAVELOSA; R v Hussein EL-SKAF; R v Mohamad HELLO [2009] NSWDC 405

This judgment contains the sentences of Mr Bakkour and Mr Javelosa. For the sentences of Mr El-Skaf and Mr Hello see R v Hussein El-Skaf; R v Mohamad Hello [2009] NSWDC 406

The Court of Criminal Appeal has not yet commented - so far as my or counsel's researches have revealed - about this new law, but under previous laws when the Court was dealing with car rebirthing activities (as under offences for stealing or car theft) the Court made some remarks in a case called R v Mason [2007] NSWCCA 32. The Chief Judge at Common Law said in a judgment about rebirthing: " Regrettably this type of illegal enterprise is not uncommon. It inflicts considerable loss on those members of the community whose vehicles are stolen, as well as inflicting loss on any insurer who may have obligations to provide compensation." The other judges in the court agreed with his Honour.

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