R v Mohamad Issam HAMIED

R v Henry & Ors. (1999) 46 NSWLR 346 R v SDM [2001] NSWCCA 158 CASES CITED: R v Griggs [2000] NSWCCA 33 R v Fidow [2004] NSWCCA 172 R v Simpson (2001) 53 NSWLR 704 ; 126 A Crim R 525 R v Wall [2002] NSWCCA 42

PARTIES: Regina - Crown Applicant Respondent - Mohamad Issam Hamied

COUNSEL: Crown Applicant - B Dawe QC Respondent: A Francis

SOLICITORS: Crown Applicant - S Kavanagh Respondent - Forsters

IN THE COURT OF CRIMINAL APPEAL 2007/1036

TOBIAS JA LATHAM J FULLERTON J

8 JUNE 2007 REGINA v MOHAMAD ISSAM HAMIED Judgment 1 THE COURT : On 30 May 2007, this Court dismissed a Crown appeal against the asserted inadequacy of a sentence imposed upon the respondent by her Honour Judge Murrell SC on 20 April 2007. The following constitute the Court's reasons for that dismissal. 2 The respondent pleaded guilty on 28 November 2006, shortly before the jury was to be empanelled for the respondent's trial, to a charge of assault with intent to rob whilst armed with a dangerous weapon, pursuant to s 97(2) of the Crimes Act 1900. The offence carries a maximum penalty of 25 years imprisonment. The respondent was sentenced to 18 months imprisonment, commencing on 16 February 2006, with a balance of term of 18 months, expiring 15 February 2009. 3 Her Honour's summary of the facts was taken from a statement of agreed facts, to which no issue has been taken for present purposes. The relevant portions of her Honour's remarks on sentence are as follows :- During the afternoon of Thursday 16 February 2006, telephone calls were made between members of a group which included the offender. Other members of the group of telephone communicants were Michael Maglis, who was the receiver or instigator of many calls, and the co-offenders, David Fepuleai and Michael Tarazi. The offender was first involved in telephone communication with members of the group at approximately 3 p.m. in the afternoon.

At about 8 p.m. that evening, the offender met Mr Tarazi, Mr Fepuleai and two unidentified men at Punchbowl. The offender drove the four men to Botany in his vehicle. Sometime between about 8 p.m. and about 11 p.m. the offender parked his car near the Sir Joseph Banks hotel in Botany. The four other men exited the car. They were disguised. They had cloth wrapped around their faces. Three of the four men were armed. Mr Fepuleai was carrying a replica pistol. Mr Tarazi was armed with a screwdriver. One of the unidentified men was armed with a baseball bat.

At about 11:10 p.m. the four men entered the hotel. The baseball bat was swung about. Mr Fepuleai brandished the replica pistol. At that time, several hotel employees and at least five patrons were present in the hotel. They were told to "get down, get on the floor". The man armed with a baseball bat struck the cigarette machine and yelled "this is a robbery, get on the floor".

All the patrons dropped to the floor except Ken Kirby, who was 82 years old. Mr Fepuleai approached Mr Kirby, pointed the replica pistol at him and said "get to the ground". Mr Kirby grabbed a bar stool to protect himself, but one of the unidentified assailants struck the stool with his baseball bat. Mr Tarazi kicked Mr Kirby, causing him to fall to the ground.

One of the patrons then realised that the replica pistol was in fact a replica and called out "it is not a real gun". At that, all four men ran from the hotel. They were pursued by the hotel security guard and a patron. They ran towards the offender's vehicle. The offender began to drive the car slowly. The co-offenders jumped into the car and the offender drove off. 4 The registration number of the respondent's car was communicated to police, who became involved in the pursuit of the vehicle. Ultimately the vehicle was stopped and three of the five offenders (the respondent, Mr Fepuleai and Mr Tarazi) were arrested. The respondent's vehicle was searched and a number of items of clothing worn by those who had entered the hotel were located, together with a mobile phone belonging to Mr Maglis. A number of screwdrivers were also found within the car. The respondent's mobile phone contained the stored mobile phone numbers of Mr Fepuleai and Mr Maglis. 5 The respondent remained in custody following his arrest. On 4 July 2006 the respondent was interviewed by a correctional officer, to whom the respondent said "I have information which you should tell the police. 303241 Michael Mags John did the armed robbery on me and I was shocked to see him in here. I do not want to see him again." According to the Crown, this statement by the respondent was put forward in the agreed statement of facts as an admission of the respondent's participation in the offence, rather than by way of indicating a willingness to give assistance in the prosecution of Mr Maglis, who has not to date been charged with any offence arising out of the attempted robbery. 6 This aspect of the agreed facts assumed some significance in the course of the respondent's submissions on the hearing of the appeal. It was submitted that the disclosure was capable of constituting assistance for the purposes of s 23 of the Crimes (Sentencing Procedure) Act 1999 and that, despite such a submission not having been advanced at first instance, the sentence imposed upon the respondent was beyond reproach when account was taken of that assistance. The simple answer to this proposition is that the respondent was given a number of opportunities to confirm to police the participation of Mr Maglis in the offence but declined to do so. There has not been anything meeting the description of assistance within the terms of s 23 and it is accordingly disregarded in considering the disposition of this appeal. The Respondent's Subjective Circumstances 7 The respondent was 48 years of age at the time of sentence. He was born and raised in Syria, one of eight children who suffered at the hands of a violent and alcoholic father. Following the respondent's father's death when the respondent was 15 years of age, the respondent left school. He came to Australia approximately 29 years ago and has since worked in a number of semi-skilled positions. The respondent has been married twice and has six children, four of whom presently reside with the respondent's second wife and a teenage son of his first wife. 8 Three testimonials from persons prominent in the Lakemba/Bankstown community attested to the respondent's active and positive contribution to that community over a number of years, and to the respondent's devotion to his family. The presentence report tendered before her Honour remarked upon the fact that the respondent was coming before a court "at an age more advanced than is usual" for a first offender, with "a history of community involvement and pro-social activity". However, the respondent had been convicted in 2003 of possess a prohibited weapon for which he received a fine. The court was informed that that charge related to the possession of a cattle prod. Her Honour, rightly in our view, discounted this conviction in terms of its relevance to the sentencing exercise. 9 The presentence report also referred to the respondent's mental health condition which was well controlled by medication. That condition was the subject of a separate report under the hand of Dr Jonathan Carne. That report largely accepted the psychiatric history related by the respondent, which included several psychiatric hospital admissions under the care of a psychiatrist who had been struck off the medical register several years before. Dr Carne found no evidence of abnormality of perception, albeit the respondent's mood was described as "distressed, anxious and emotional." Dr Carne did not make a clear psychiatric diagnosis, although the medical records obtained from the St John of God Hospital relating to a 1990 admission gave a diagnosis of depression and past alcohol dependence, probably indicating a depressive illness. The respondent has been on medication for depression since his incarceration.

Asserted Errors in the Exercise of the Sentencing Discretion. 10 The Crown submissions pointed to five specific errors said to have been made by the sentencing judge :- (i) failing to properly consider and apply the guideline judgement in R v Henry & Ors. (1999) 46 NSWLR 346. (ii) an element of double counting in the finding of special circumstances. (iii) an excessive discount for the plea of guilty. (iv) excessive weight attributed to the respondent's medical condition, which was not supported by the evidence. (v) failing to have regard to the principles of specific and general deterrence. 11 As to (i), it was contended that her Honour paid "mere lip service" to the principles in the guideline judgement of Henry. Reliance was placed upon the fact that the offence being considered in Henry was one carrying a maximum penalty of 20 years imprisonment, not 25 years imprisonment, and that the range nominated as a starting point in Henry (that is, four to five years) was therefore of greater relevance in the circumstances of this case. In addition, the Crown pointed to the use of a number of weapons in the course of the offence, the fact that the offence disclosed a significant degree of planning, by way of a number of telephone calls between the participants in the offence throughout the day, and the use of beanies and other garments to disguise the identity of the offenders. The actual violence meted out to the elderly gentleman within the hotel and the presence of a number of other patrons were also factors relied upon by the Crown to justify the imposition of a sentence above the range identified in Henry. 12 Her Honour expressly referred to the guideline judgement in Henry as one which the court was required to consider. Her Honour went on to say :- In relation to the objective seriousness of this particular offence, I note that the offence was committed in company. Not only was the offence committed in company, but a total of four individuals entered the hotel, three of whom were apparently armed. That must have been a very intimidating event for the patrons, including 82-year-old Mr Kirby. There was significant planning associated with the offence, as evidenced by the multiple phone calls between participants commencing early in the afternoon of the day in question. …..

The offender was a much older man than the two co-offenders, …. On the other hand, I accept that, so far as this offender's involvement was concerned, his conduct was quite unsophisticated. In particular, he utilised his own vehicle as the delivery and getaway vehicle. Had he considered it, it should have been quite obvious to him that it would be easy to trace his vehicle. The offender played a minor, albeit essential, role as driver of the delivery and getaway vehicle. …………………………………………………………………………… As far as the aggravating features which I must consider under section 21A(2) of the Crimes (Sentencing Procedure) Act are concerned, the relevant features appear to be (b) the offence involved not only threatened by actual violence, (e) the offence was committed in company and (n) the offence was part of a planned or organised criminal activity. 13 It may be readily observed that her Honour has specifically alluded to each of the factors relied upon by the Crown to found the submission in support of this ground of appeal. We would not in these circumstances be prepared to conclude that an experienced criminal judge failed to have adequate regard to a relevant decision of this Court. It must be borne in mind that Henry constitutes a "[benchmark for a particular kind of offence], by way of guidance, while preserving the application of proper sentencing principle ….., that might reduce the need for the sentence to reflect factors of deterrence, while requiring greater attention to be given to the interest of rehabilitation." (R v SDM [2001] NSWCCA 158, per Wood CJ at CL at [10]) See also R v Griggs [2000] NSWCCA 33. 14 Ultimately the Crown's submission sought to elevate her Honour's comments, with respect to the use by the respondent of his own vehicle and the respondent's role in the commission of the offence as minor, to errors in the sentencing exercise. In our view, both of these comments legitimately arose out of the agreed statement of facts. The description of the respondent's role as minor should be considered in its proper context, namely, that the respondent's role was minor when compared to the roles undertaken by his co-offenders. It is conceded that her Honour properly recognized the respondent's role as essential. 15 As to (ii), the Crown maintains that the sentencing judge relied upon the respondent's depressive illness to reduce the head sentence and, in addition, to reduce the non-parole period below the statutory ratio, in contravention of the Chief Justice's admonition in R v Fidow [2004] NSWCCA 172 at [18]. In Fidow, the Chief Justice confirmed what was said in this regard in R v Simpson (2001) 53 NSWLR 704 ; 126 A Crim R 525 :- Where a circumstance is taken into account by way of reduction of the head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non-parole period. Before a sentencing judge further reduces the non-parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence. 16 We can find nothing in the remarks on sentence to indicate that her Honour placed particular reliance upon the respondent's mental illness in order to reduce the head sentence. Her Honour referred to the respondent's depression in the course of outlining his subjective circumstances, but that feature of the respondent's case does not appear in her Honour's treatment of the mitigating circumstances at par. 27 of the remarks on sentence. Nor does her Honour refer to the respondent's mental illness in the context of any reduction upon the emphasis otherwise to be placed upon the principle of general deterrence. In short, there is nothing to support this aspect of the Crown's submission. 17 As to (iii), her Honour discounted the proposed head sentence of three and a half years by 14% for the plea of guilty, which was on any view a late plea. However, the Crown's representative on sentence acknowledged that such a discount was appropriate. We accept that it seems a generous discount in the circumstances, but it cannot be said to be outside the range of the sentencing judge's legitimate discretion. 18 As to (iv), we reject the Crown's contention that the respondent's depressive illness was not supported by any evidence. The submission made by the Crown's representative on sentence was that there was no evidence that the respondent's cognitive capacity was affected at the time of the offence or at the time of sentence. That submission was accepted by her Honour. However, it was never disputed that the respondent was suffering from depression at the time of sentence and that he was receiving medication appropriate to that illness within the prison system. The only reliance placed by her Honour on the respondent's mental health arose in the context of a consideration of his prospects of rehabilitation and her Honour's decision to vary the statutory proportion between the non-parole period and the balance of the term. In the latter respect, her Honour was entitled to have regard to the greater hardship experienced by prisoners suffering from a mental illness, relative to others in the prison population. 19 Her Honour's reasons for reducing the non-parole period to 18 months included the respondent's depressive illness and the fact that it was the respondent's first custodial sentence. Accepting that her Honour was entitled to find these special circumstances, it must be acknowledged that such a non-parole period is the very least that could be imposed in order to reflect the objective gravity of this offence. However, making due allowance for the judge's independent sentencing discretion, we are unable to conclude that her Honour accorded too much weight to the respondent's illness in setting the non parole period. 20 As to (v), the Crown's complaint is that nowhere in the remarks on sentence does her Honour refer to the principles of specific and general deterrence. The respondent was not an offender to whom specific deterrence applied. The instant offence was, to all intents and purposes, an aberration. One prior conviction for possessing a cattle prod hardly qualified the respondent as a repeat offender. It cannot be doubted that general deterrence was important to the sentencing exercise, but a failure to refer to it specifically does not lead inexorably to the conclusion that her Honour disregarded it. The remarks on sentence, which were delivered on the same day as the sentencing proceedings, bear all the hallmarks of a reasoned, principled approach to the sentencing exercise. Her Honour could not have failed to appreciate the significance of the principle of general deterrence. 21 In the absence of specific error, the question remains whether the sentence is manifestly inadequate. We have already intimated that the sentence was a lenient one, but not "definitely outside the range for the case in hand" (R v Wall [2002] NSWCCA 42, per Wood CJ at CL [70]). The respondent's age, his role in the commission of the offence, the absence of any relevant convictions, his prospects of rehabilitation, the support of his family and the long-standing depressive illness from which he suffered, represented a combination of factors that were legitimately reflected in the exercise of her Honour's broad sentencing discretion.

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