R v El-Kotob and Hijazi [2002] VSCA 109

R v El-Kotob and Hijazi [2002] VSCA 109 - VSCA 2002 case summary — Zoe

[9]

"One may accept that the conduct here constituted a single criminal enterprise, but there is, in my view, a fallacy in the contention as to double punishment, in that there is a logical glide from `single criminal enterprise' to `single crime'. For, as Mr. Ryan demonstrated in his outline, the enterprise had two components, burglary and theft, just as there are two components in the single enterprise in which a would-be armed robber steals a getaway car with the sole object of using it in the robbery, which he then commits. A separate conviction and a separate sentence are called for with such enterprises. Here, the burglary, while admittedly preparatory to the theft, involved a violation of the rights of the owner or occupier of the premises separate from the violation of the rights of the owner of the goods which the theft involved. Indeed, as the President pointed out during argument, there could in a given case be different victims of the two crimes. Pearce and Sessions do not, in my view, assist the applicant.

...

The reasons why the appellant in Pearce was held to have been doubly punished for the same act were that the single act of inflicting grievous bodily harm was an element of each of the offences in question there and that the identity of the terms of imprisonment imposed for the two offences and their concurrency enabled the High Court to discern that they were imposed to punish that single act. Here, there is not as a common element in the offences an act which both the sentences imposed could be said to punish. The direction for cumulation puts that beyond argument. Mr. Priest informed the court that ground 4 was modelled on Sessions, but that case is clearly distinguishable. For there, as appears from 313 and 315, the offender's conduct could not be divided into parts and distributed between the two offences in question. The act for which he was to be sentenced on count 1 was the same act as he was to be sentenced for on count 2. That simply is not so here. Indeed, the burglary was complete before the theft occurred."

[37]

"Count 1: The Director of Public Prosecutions presents that Firas El-Kotob, Ziad Tarek Hijazi and Ali Arabi at Melbourne in the said State between the 10th day of April 2001 and the 11th day of April 2001 conspired together with Frederick Hassan and Mohammed Rasheed to cheat and defraud diverse financial institutions. Count 2: And the Director of Public Prosecutions further presents that Firas El-Kotob and Ziad Tarek Hijazi at Preston in the said State on the 11th day of April 2001 dishonestly obtained from the Olympic Hotel alcohol valued at $498.95 with the intention of permanently depriving the said Olympic Hotel of the said alcohol by deception namely by falsely representing that the magnetic encoding of the number 5353 1629 7294 7683 on the credit card produced for payment was authorised for use. Count 3: And the Director of Public Prosecutions further presents that Firas El-Kotob at Melbourne in the said State on the 11th day of April 2001 made false documents namely credit cards magnetically encoded with account numbers which are and which he knew to be false with the intention of inducing another namely divers retail outlets to accept them as genuine and by reason of so accepting the said credit cards to do some act to that other person's prejudice namely to part with property. Count 4: And the Director of Public Prosecutions further presents that Firas El-Kotob at Melbourne in the said State on the 11th day of April 2001 had in his custody and control a machine or implement namely a card reader and encoder and a notebook computer which are and which he knew to be specially designed or adapted for the making of a false document. Count 5: And the Director of Public Prosecutions further presents that Ziad Tarek Hijazi at Melbourne in the said State on the 11th day of April 2001 had in his control a false document namely a credit card magnetically encoded with the number 5353 1629 7294 7683 which is and which he knew to be false with the intention of inducing another namely divers retail outlets to accept it as genuine and by reason of so accepting the said credit card to do some act to that other person's prejudice namely to part with property.

[67]

"It was accepted below, and on the hearing before us, that the applicant inserted his finger into the child's body only once. That is, it was accepted that there was, in this sense, only a single act by the applicant. The learned sentencing judge said in the course of his sentencing remarks that: `It is a fundamental rule that a person must not be punished twice for the one act. In view of the way in which the Director of Public Prosecutions has formulated the charges, I must impose two separate sentences on you, one for rape, and one for recklessly causing serious injury.' His Honour noted that the maximum sentence that could be imposed on the count of recklessly causing serious injury was six years and eight months. He went on to say: `Despite the fact that your conduct occupied only a second or so, it is necessary to identify what act constituted the rape, and what other separate act constituted the reckless causation of serious injury.' His Honour sentenced the applicant on the basis put forward by the Crown that the rape constituted by the applicant inserting his finger to the slightest extent into the vagina of the child and that `the other offence was constituted by your continued forceful penetration'. So to divide the applicant's single blow to the victim is obviously artificial. There was, as I have said, but a single blow struck."[25]

...

"Although I did not understand the director to say that Newman[26] required the charging of two counts in this case, I should say at once that I do not consider that if the applicant had been charged only with rape, the sentencing judge could not properly have had regard to all of the consequences that flowed to the victim from that rape. Indeed, had the applicant been presented only on the count of rape, I consider that the sentencing judge would have erred if those consequences were not considered in determining the sentence that should be imposed: see the Sentencing Act 1991 s.5(2)(db). The present case may be contrasted with a case in which the offender rapes the victim, and strikes and injures the victim. If the Crown contends, in the latter case, that the offender is to be punished for the rape and for the assault, separate charges should be preferred: see e.g. R. v. O'Rourke [1997] 1 V.R. 246 esp. at 252-3. Here, however, the injury to the victim was done by the act of penetration constituting the rape. That injury not only may be taken into account in punishing the offender for the rape, the Sentencing Act requires that the sentencing judge take it into account. The problem dealt with in Newman would not arise."[27]

[81]

Given that the joinder of the counts relating to conspiracy and the commission of substantive offences was not of itself in the circumstances contrary to principle, the question posed in Hoar must still be considered. If the sentencing judge has taken into account the criminal conduct covered by the other counts in his determination of the proper sentences to be imposed upon the appellants for the count of conspiracy then, to record separate convictions, whether or not concurrent sentences were handed down in respect of them, would constitute the imposition of double punishment. After a deal of thought and careful perusal of the transcript and his Honour's sentencing remarks relating to the appellants and their co-offenders, I consider on the basis of several features that it is likely that this has occurred. Among these are the facts that there was no discussion in the course of the plea hearing concerned with the appellants about the form of the presentment or the manner in which the various counts could be related to each other and the count of conspiracy. His Honour's sentencing remarks do not deal with these aspects at any point and I observe that without giving any explanation for so doing he made no order for cumulation. In his description of the events upon which the sentences were based, his Honour made no specific reference to those underlying count 2 and referred to the total value of goods obtained. The substantive offences did not call for separate treatment in the particular circumstances and there is nothing save the sentences to indicate that his Honour considered that any was required. I observe in this context that they were not singled out for specific attention in the course of the plea. The offence encompassed by count 2 was simply typical of a number committed by the appellants and was treated as such. All of the other transactions were obviously taken into account in the determination of the sentence to be imposed on the conspiracy count and there is no reason to suppose that the offence in count 2 was excluded. Counts 3, 4 and 5 all relate to activities which were clearly directed to the implementation of the broad conspiracy to which the judge adverted in his sentencing remarks.

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Judgment (189 paragraphs)

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