R v ELZAKHEM

R v ELZAKHEM - [2008] NSWCCA 31 - NSWCCA 2007 case summary — Zoe

[9]

2 HULME J : The Respondent to this Crown appeal pleaded guilty to 5 offences of causing malicious damage by fire and 2 offences of conspiracy to cause malicious damage by fire. Pursuant to s195B of the Crimes Act, the maximum penalty for each of the first group of offences is 10 years' imprisonment. The penalty for the conspiracy offences is at large. Toner DCJ, who sentenced the Respondent expressed the view that, "in relation to counts 1 to 7, the degree of culpability of the offender was approximately the same" and, accordingly, but for the Respondent's pleas, an appropriate sentence for each of these offences would be 7 years. His Honour said that, after allowing a discount of 20% on account of the Respondent's plea, the resultant total sentence would be 5 years and 6 months and this was what he intended to impose. (In fact, 7 years less 20% equals in 5 years and 7 months but the difference of one month may be ignored.) 3 The actual sentences imposed for the first 4 of these offences were of a duration of 6 years made up of a non-parole period of 6 months and a further term of 5 years and 6 months. The actual sentences imposed for the offences the subject of counts 5 - 7 were of a duration of 6½ years made up of a non-parole period of 12 months and a further term of 5 years and 6 months. 4 At the same time the Respondent was also sentenced in respect of an eighth offence to which he had pleaded guilty, viz. of conspiring to maliciously inflict grievous bodily harm upon Andrew Lyons with intent to do grievous bodily harm to Mr Lyons. Although there is no maximum penalty prescribed for the offence of conspiracy, pursuant to s33 of the Crimes Act, the offence of maliciously inflict grievous bodily harm with intent to do grievous bodily harm carries a maximum sentence of 25 years imprisonment. In connection with the eighth count, his Honour was asked to take into account three further offences of causing malicious damage by fire and one of attempting to do so. In relation to this offence, Judge Toner said that, but for the Respondent's plea, an appropriate sentence would be 12 years and that, after allowing a discount of 20% on account of the Respondent's plea, he intended to impose a total sentence of 9 years and 6 months and a non-parole period of 4 years and 1 month. 5 The actual sentence imposed for this offence was of 13 years and 7 months made up of a non-parole period of 4 years and one month and a further term of 9 years and 6 months commencing on 26 December 2009. 6 The total effective sentence imposed was of 18 years and 7 months made up of non-parole periods extending from 26 December 2004 to 25 January 2014 (9 years 1 month) and a further term on 9 years and 6 months expiring on 26 July 2023. In summary, the sentences imposed by Toner DCJ were:-

[22]

Counts 7 and 8 28 Prior to October 2004, Andrew Lyons had been in partnership with the Respondent. The partnership had gone sour and by October or November, Mr Lyons was a director of Beautopia Pty Ltd, a competitor of the Respondent, and which had premises at Chatswood. In November 2004 Beautopia issued a catalogue of products and prices that was based on the Respondent's mailing list of in excess of 10,000 clients. 29 The Respondent told Awit that he was losing money as a result of Beautopia stealing his mailing list and said that he wanted Beautopia put out of business for some months by having its premises burnt down and Lyons roughed up a bit. Awit contacted Adam Ellias and the two inspected the premises. The assessment was that the job would not be easy and Ellias said that he would need to involve others and the job would cost more. The Respondent agreed to pay $10,000 and he provided this to Awit. Ellias enlisted the services of Fouad Sassine, Mark Najem and Christoper Duncan in order to burn the premises and injure Mr Lyons. Najen informed Ellias that they intended to carry out the offences on Friday 3 December 2004. 30 The Statement of Agreed Facts records:- "At no stage did Gabriel Zakhem instruct that guns were to be used to injure Lyons. Awit said that he instructed Adam Ellias that there was not to be any shooting or excessive violence of that nature. After the incident, Zakhem was surprised that firearms were used. … On the night of 3 December, police officers posing as employees of Beautopia occupied the premises. At about 9.25pm, a vehicle owned by Najem entered the car-park above Beautopia's premises and Najem, armed with a loaded 9mm semi-automatic pistol took up position as a lookout on the rooftop. Duncan was armed with a shortened point 222 position (sic) calibre bolt action rifle with a loaded magazine. He walked around and eventually approached a police officer, Detective Sergeant Adam Phillips, who was inside the building and who was posing as an employee. Duncan asked him whether he owned a Toyota RAV4 which was parked in a spot reserved for Beautopia. He said "yes" and Duncan immediately discharged a shot towards the legs of the police officer. The bullet missed Phillips but he felt it brush passed his knee. The bullet lodged in the stairs behind Phillips. Police Officers gave chase and during the chase Duncan turned and fired shots towards pursuing police. Najem, Duncan and Sassine were arrested at the scene."

[23]

Subjective Circumstances 31 The Respondent's plea was first entered in the District Court on 8 September 2006, the day after the matter was listed for trial. He has been in custody since 8 December 2004. All of that custody, except for 18 days, is referable to the offences with which this Court is concerned. 32 He was born in Lebanon in February 1958 and came to Australia as a child with his family in 1975. He married in 1987 someone with whom he had been in a relationship for a number of years and has two children. The marriage was dissolved in 2006 although he and his former wife and children remain in regular contact. 33 After arriving in Australia, he opened first one and then a number of hairdressing salons and then expanded into the wholesale supply of hairdressing products and a variety of investments. At one stage he would seem to have been worth very many millions of dollars. Affidavits and references which were tendered before Judge Toner indicate that the Respondent helped many people in a variety of ways - assisting in the establishment of a business, saving someone else's business, sponsoring someone to come to Australia. He made donations to a variety of causes in Australia and Lebanon and these donations would seem to have been of the order of tens of thousands of dollars a year. His former wife observed that "from the beginning of our relationship Gabriel has always been focused on success" and "Gabriel despite his successes had for a substantial part of his adult life suffered from depression. He was continually visiting doctors, counsellors, taking prescription drugs, attending retreats and transformation courses". 34 In August 1998 Dr Henson, a psychiatrist, was consulted by the Respondent who gave a history of tension and stress over the running of his business and describing "anxiety, depression, frustration and irritability". The doctor observed "evidence of some depression but he did seem to be aware that he would have to change the way he has been living to recover. He has agreed with his wife to plan spending less time at work." 35 From as early as 2001 until 2004 the Respondent and his wife were seeing a counsellor concerning relationship issues and with a view to the Respondent understanding himself better and improving the quality of family life. 36 From early 2001 the Respondent was consulting Dr Galambos, another psychiatrist, who made a provisional diagnosis of a "major depressive disorder on a background of physical abuse from his brother, neglect by his mother, possible complicated bereavement regarding his brother (another who had been killed in a train accident) and obsessive and neurotic personality traits". Dr Galambos placed him on a variety of medications up to what would seem to have been the last consultation in August 2001. 37 A general practitioner, Dr Hood, whose practice the Respondent had attended for the last 10 years said that the Respondent suffered from chronic depression and anxiety for which he had been on multiple medications. Dr Hood and other doctors said also that the Respondent suffered from Crohn's Disease. 38 Another GP whom the Respondent seems to have attended between October 2003 and his arrest also placed the Respondent on medication for depression. 39 Judge Toner also had before him reports from two psychiatrists, Dr Greenberg and Dr Allnut. 40 In findings which were not the subject of challenge during the course of the appeal his Honour concluded that it was hard to see any significant evidence of remorse or contrition on the part of the Respondent and that he was not persuaded that the Respondent had good prospects of rehabilitation. His Honour accepted that the Respondent's psychological makeup contributed to some extent to the commission of the offences, although his Honour was not persuaded that any psychiatric condition drove the Respondent to his crimes. His Honour also said he was not persuaded that depression played any significant part. 41 After quoting a passage from Professor Greenberg's report wherein Professor Greenberg said "psychologically, his personality disorder with obsessive compulsive features would have considerably clouded his judgment" and the opinion of Dr Allnut that, "It is probable that, as a consequence of his depression and anxiety with an obsessive compulsive personality style, your client was more inclined to attempt to take more control of his environment to bolster a flagging self esteem than reduce anxiety without being seen as a failure. Thus, given his wealth at the time of the alleged offence, it is possible that his motive was at least partly driven by his emotional needs rather than purely for secondary gain."

[28]

and deciding to impose the same length of sentence on each of counts 1 to 7. Although the Respondent's role in each of these offences may have been the same and his motivation may have been the same or substantially so, it was wrong of his Honour not to have had regard to the difference, in some cases enormous, in the damage caused. To treat an offence under s195 of the Crimes Act that causes damage of $18m as meriting the same punishment as one where, as in the case of count 4, the evidence was that the damage was "a small amount" was to overlook one of the main features of an offence under the section. 46 A second error was to fix the non-parole periods for the offences, the subject of counts 1 to 7 at periods of 6 or 12 months. While I acknowledge that his Honour may have been influenced by considerations of totality in choosing these periods which he then accumulated, they are so far from the periods required to reflect the Respondent's criminality as to amount to error. 47 Thirdly, his Honour erred in not treating the offences the subject of counts 1 and 6 as requiring, subject to any discount for the Respondent's plea, the maximum penalty provided for by the section. Notwithstanding his Honour's findings to the effect that the Respondent's mental condition had made some contribution towards the offending, it is clear that his motivation was in large part out of either greed in maintaining the profits of G & T, or out of revenge or a desire to punish other businesses that were no longer serving the Respondent's interest. When one adds to these factors the extent of the damage caused, these offences came clearly into a worst case category and merited the maximum penalty of 10 years. 48 By parity of reasoning the offence the subject of count 4 where the amount of damage was small merited in my view a lesser starting point than the 7 years his Honour adopted. 49 My mind has vacillated on the question whether his Honour's starting point for the sentence he had in mind to impose for count 8 was erroneous. 12 years is less than half the maximum prescribed for the substantive offence under s33 and the Respondent's criminality was gross. No standards of human decency or merely civilised behaviour can accept the infliction of grievous bodily harm as an incident or consequence of the simple commercial conduct of business competitors. Furthermore, although there is some evidence that might lead to the inference that the Respondent sought to limit the damage to Mr Lyons, he was content to leave it to others to carry out the object of the conspiracy. It takes no great knowledge of the world to know that in the situation the Respondent sought to bring about, things often go further than intended and experience in this Court indicates while the grievous bodily harm intended by the Respondent may have been toward the lower end of grievous bodily harm, what eventuated may well have extended to injuries either physically crippling for the remainder of the victim's life or serious brain damage. 50 It must also be borne in mind that the eighth count was the one where the Form 1 offences were to be taken into account, a factor calculated to increase significantly the sentence for that count. 51 However, ultimately I have concluded that there was no error in his Honour's intended sentence on count 8 and that it was within the legitimate exercise of his discretion. Of course, in that the sentence imposed did not reflect his Honour's reasons, that sentence did contain error. 52 Other error also lies in the total effective sentence imposed by Toner DCJ and in the inadequacy of his Honour's accumulation of sentences for the 8 offences. Probably this is most starkly demonstrated by the fact that for the 7 offences under s195, causing almost $25M damage, the total sentence imposed was only 10½ years - from 26 December 2004 to 26 June 2015 - 6 months more than Parliament has thought appropriate for one "worst case" offence under the section. The result is an effective sentence that is manifestly inadequate. 53 Subject to any considerations of parity, these errors and the extent of the inadequacy of sentence imposed by Toner DCJ are such that, notwithstanding the constraints which arise in the circumstances of this being a Crown appeal, this Court should re-sentence the Respondent. Subject to such considerations, principles of totality, and the possible existence of special circumstances, the sentences which this Court should impose are as follows.

[33]

63 The effective sentence imposed on VAA reflects a discount of 62.5%. If that were added back, that sentence would be of 16 years with a non-parole period of 10 years 8 months and he did not occupy the role of principal as the Respondent did. There is a significant disparity between the individual and total sentences imposed on Coleman and those I propose for the Respondent in for the offences they had in common. However in addition to involvement in the offences committed by Coleman (Snr), the Respondent was involved in the offence at Dateline for which a head sentence of 10 years is warranted, the offence against Mr Lyons which merits a sentence of almost 10 years and 2 other offences. Coleman also had a lesser role. These factors are more than sufficient to justify the differences in total sentences. 64 There is also disparity between some of the individual sentences I propose for the Respondent and some of the individual sentences imposed on his co-offenders, a disparity which I do not regard as adequately explained by their individual roles. One area where this disparity exists lies in the sentences imposed for the offence of conspiring to maliciously inflict grievous bodily harm on Mr Lyons. There is a considerable difference between the sentence of 9 years and 4 months including a non-parole period of 7 years and 2 months that I propose and the sentences imposed for this offence on some of the others. 65 While I acknowledge that this disparity is undesirable and provides a reason to depart from the sentences I have foreshadowed, I am disinclined to do so. Firstly, disparity but enlivens a discretion. It does not compel its use - see R v Diamond (unreported, CCA 18 February 1993); R v Doan (2000) 50 NSWLR 115 at [19]; R v Rexhaj (unreported, NSWCCA, 29 February 1996); R v Ismunander and Siregar [2002] NSWCCA 477 at [38]. Secondly, with the number of offenders and charges here, it is very difficult to avoid some disparity. Thirdly, with the exception of Coleman, there is no unjustified disparity in the total sentences. Fourthly, to adjust the Respondent's sentences downwards to match those imposed on Coleman is likely to create disparity with others. Fifthly, much if not all of the effect of disparity is removed as a result of the application of the principle of totality. Finally, the Respondent's criminality was so great that I regard it as more important that the sentences imposed on him be proper by reference to other principles of sentencing than that they be reduced on parity grounds. As was said in R v Rexhaj (unreported, NSWCCA, 29 February 1996) and quoted in R v Ismunander and Siregar [2002] NSWCCA 477 at [38]:- "The principle which underlies … [intervention for disparity] … is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice … . There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision." 66 There is disparity also in the effective non-parole periods. However, given the extent to which these are sometimes a somewhat arbitrary product of the need to apply principles of totality, so long as the total effective sentences are fairly comparable, I do not regard this disparity as justifying any legitimate source of grievance or a reason to depart from what otherwise seems appropriate. 67 (For an abundance of caution I should add this. The sentences imposed on the Respondent's co-offenders were not the subject of challenge in these proceedings. No inference should be drawn from my remarks here that I regard any or all of those sentences as adequate.)

[34]

68 Toner DCJ made a finding of special circumstances arising from the facts that the Respondent had no relevant prior criminal history or time in gaol despite his age of 40 (or thereabouts) when the first offence was committed, that there was delay in the matter coming to trial and the Respondent's psychological history which inspired a need for support and assistance. The fact and extent of accumulation of sentences that must occur in this case provides a further basis for such a finding. 69 However, I would not be disposed to extend the balance of term at the expense of the effective non-parole period for longer than the 5 years period foreshadowed above. In part that decision is based on the fact that longer than 5 years on parole is most unlikely to be of benefit to the Respondent or the community but primarily it is based on the need for the Respondent's non-parole period to adequately reflect the enormity of his criminality. However, I would alter the sentence foreshadowed above in respect of count 8 to provide that 5 years period when the Respondent will be eligible for parole. 70 In the cause of simplicity, because all of the non-parole periods foreshadowed above except that imposed in respect of the eighth count will be co-existent with other non-parole periods, I propose that the sentences on all counts except the eighth be of fixed terms equal to the non-parole periods foreshadowed. 71 To give effect to the conclusions at which I have arrived, I propose that the Court make the following orders:- 1. Allow the appeal. 2. Quash the sentences imposed on the Respondent by Toner DCJ on 14 May 2007. 3. In lieu of the sentences imposed by Toner DCJ sentence the Respondent as follows:- Count 1 Imprisonment for a fixed term of 6 years commencing on 26 February 2004. Count 2 Imprisonment for a fixed term of 6 years commencing on 26 August 2005. Count 3 Imprisonment for a fixed term of 3 years commencing on 26 February 2007 Count 4 Imprisonment for a fixed term of 1 year and 6 months commencing on 26 February 2008 Count 5 Imprisonment for a fixed term of 3 years commencing on 26 August 2008 Count 6 Imprisonment for a fixed term of 8 years commencing on 26 August 2009 Count 7 Imprisonment for a fixed term of 3 years commencing on 26 August 2013 Count 8 Imprisonment for a non-parole period of 4 years and 7 months commencing on 26 July 2014 together with a further term of 5 years commencing on 26 February 2019. 4. Record as the date upon which it appears that the Respondent will become eligible for parole, 26 February 2019.

At a glance

Court

Decision date

Before

Source

Judgment (36 paragraphs)

Parties

Cases Cited (3)