R v Mohamed; R v Houry

District Court of NSW|2017-11-03

Preliminaries

HIS HONOUR: On 3 November 2017 the offenders came before court for sentence following their entering pleas of guilty to the offence under s 350 Crimes Act 1900 (NSW) of being an accessory after the fact to the serious indictable offence of with menaces, demanding money with intent to steal. The maximum penalty is imprisonment for 5 years. There are no Form 1 matters.
The Crown described the offenders' criminal conduct as "foot solider" work carrying the obvious risk of detection and to be distinguished from the more serious principal offender's criminal conduct of demanding money with menaces and with intent to steal: s 99 Crimes Act 1900 (NSW). Sentencing of the offenders is to contemplate the alternative lesser offence only.
The pleas of guilty entered were in accordance with the offenders' offers to the Crown advanced approximately one year before the matters were listed for trial earlier in 2017. The pleas were entered shortly after committal. The Crown and counsel for each of the offenders submitted that utilitarian discounts of 15% were appropriate for the entering of the pleas of guilty. I adopt that course. The proposed discount is appropriate in accordance with principle: R v Thompson; R v Houlton (2008) 49 NSWLR 383; [2002] NSWCCA 309.
The offender Mohamed arrived in Australia in 2007 from Egypt. He has no antecedent or subsequent history of criminality.
The offender Houry arrived in Australia as a young child and was educated to tertiary level here. On 17 October 2005 in Queensland he committed the offences of stealing and robbery with actual violence/in company for which he was sentenced on 22 September 2006, at Beenleigh District Court, to imprisonment for 12 months to be served by way of Intensive Correction Order. Albeit he was not entirely compliant with supervision in the course of that Order, he satisfactorily completed it. On 14 October 2008 at Brisbane Magistrates Court he was fined $250 on conviction for the relatively minor offence of not being endorsed to possess a restricted drug. But for that minor restricted substance offence, the offender Houry has a clean criminal record for more than a decade intervening between the serious robbery with actual violence/in company offence and the subject offence. There is no record of subsequent criminality.

Facts

Between 2012 and 2014 another person made demands for $300,000 upon the victim. The other person and the victim had been business partners. On 10 May 2015 other persons, with menaces, demanded the money from the victim at his home and in front of his wife. The offenders were not involved in that conduct of the primary criminal offence and those events. That conduct of others can form no part of the consideration of sentencing of the offenders.
The offenders Houry and Mohamed, for sums of $1,500 and $2,000 respectively (sums recorded as stated by the offenders in the sentencing options reports), agreed to retrieve a bag of money from a motor vehicle parked outside a suburban home for a male person. The association between the offenders and that person emanated from meeting at the local mosque. There is nothing to suggest that either of the offenders knew of or were known to the victim. Offender Houry made limited telephone and text communication with the victim. Offender Mohamed made no contact with the victim.
Each of the offenders concedes that they understood the arrangement to pick up money for the male person was shady. There is nothing to suggest that they were aware of the preceding menaces and demands by the principal offenders upon the victim.
On 13 May 2015, the victim answered a call from a male person being the offender Houry, who said: "Do you have the money ready?" The victim said: "No but I'm trying." Houry: "Can we pick it up Sunday night?" Victim: "No." Houry: "Can we pick it up Monday morning? Eight o'clock in the morning? Do you remember the instructions?" Victim: "Yes." The victim heard in the background a male voice say: "From 6am to midday." Houry: "If the moneys are not ready you know the outcome." Victim: "Can I ask you a question…Is the $300,000 for the guy at Earlwood?" Houry: "You're asking too many questions." Houry then hung up.
On 16 May 2015 the victim received, from a telephone operated by Houry, a text message which read: "mr mee has arranged someone for collection on Monday 18th, between 7.30am and 8.30am".
The victim reported these calls and text message to police.
At 5.30am on 18 May 2015, Police setup a digital recorder on a tripod facing the direction of the victim's residence and kept vigil from a neighbour's house.
The instruction, which the victim had previously received from a principal offender, was that the money be left in the boot of his car parked outside his property.
At about 8.10am, Police saw offender Mohamed riding a bicycle in the direction of the victim's home, holding a mobile phone to his ear.
On arrival at the victim's home, offender Mohamed dismounted his bicycle and walked to the victim's car. He was observed by Police to attempt to open the boot of the car and when it would not open to attempt to open the rear and front passenger doors of the car. Police approached yelling "Police don't move". Offender Mohamed began running towards the bicycle. Police detained him and he was handcuffed. Offender Mohamed was in possession of a mobile phone provided to him by offender Houry. Offender Mohamed's driver licence bore an address in Cockthorpe Road, Auburn, at which, it was subsequently determined by Police, he did not reside.
Offender Mohamed failed to co-operate with and assist Police and indeed gave them a false address and untruthful information during the events which follow: 1. Offender Mohamed, on apprehension, told Police: "I was dropped off by two males in a white ute [he denied knowing the males]. They picked me up in Auburn out the front of a shopping centre…One male had a beard." When Police asked him why he was trying to enter the victims motor vehicle, offender Mohamed answered "I was dropped off in a white Toyota ute. They gave me a bike. They told me I had to go to [the victims address] to get their bag." 2. Offender Mohamed participated in an ERISP, with an interpreter. 3. On release, pending further investigations, offender Mohamed accepted a Police offer that he be driven home. He directed Police to the Cockthorpe Road, Auburn, the address on his licence. There a male person informed Police: "I don't know him." In response to Police enquires, offender Mohamed responded "I don't live anywhere." He determined to walk, without Police assistance, saying that he was going to McDonald Street, Lakemba. Police enquiries subsequently identified that to be offender Mohamed's correct address. 4. On 21 July 2015, Police contacted offender Mohamed to speak with him further in relation to the principle offence committed by others. He agreed to attend Campsie Police Station on 23 July 2015. 5. At about 9.27pm on 22 July 2015, offender Mohamed was arrested at the Sydney International Airport. On 23 July 2015 he was interviewed again with an Arabic interpreter and after he spoke to his solicitor, he declined to answer any questions. He was charged. 6. Police investigations following the viewing of CCTV identified the white ute referred to by offender Mohamed to be registered to offender Houry.
Offender Houry exercised his right to silence during police investigations as follows: 1. On 3 July 2015 Police conducted a vehicle stop of the white ute and offender Houry denied knowledge relating to the above events of 18 May 2015; 2. He was cautioned and refused to provide information during ERISP; 3. Offender Houry declined to participate in an identification parade; 4. On 19 August 2015 offender Houry declined to consent to a forensic procedure and refused to provide Police with an address for service of court papers saying: "I'm in Queensland but that's all I'm going to tell you." Offender Houry continued to refuse to cooperate with police.
Paragraph [43] of the Agreed Facts describes in a concise fashion the culpability of the offenders' conduct in the commission of the offence. It reads: Houry became involved in contacting [the victim] and arranging for collection of money on behalf of persons who demanded the money with menaces [previously]. The offenders agreed to assist the principal offender by arranging and collecting the money for them. Both Mohamed and Houry knew the principle offence was committed by these offenders before they agreed to assist. Both Mohamed and Houry knew the principal offenders had no legal claim to the money demanded from [the victim].

Consideration - Offender Mohamed

At the time of the offence Mohamed was 31 years of age. He migrated to Australia in 2007 in order to study but subsequently abandoned his studies. In 2014 he became engaged and his wife presently lives in Egypt. He has maintained employment and but for the subject offence he has been a law abiding member of the community. Since 1 December 2013 he has been a full-time driver/trolley collector employed by Starlight Trolley Service Pty Ltd. Exhibit M is a letter from his employer which indicates that he is a reliable and valued employee. In addition he works as a part-time small truck driver for extra income. He suffers no mental impairment or disability. He enjoyed a normal and nurturing family life.
Through his counsel he conceded that his misleading of Police and his being apprehended at the international airport are factors indicating a lack of early remorse for his criminality. He did not give evidence on oath as to remorse or to explain his actions. Accordingly, statements contained in the Intensive Correction Order Assessment Report dated 2 February 2018 whilst of some weight, have not been subject to test under cross-examination.
He was assessed as of low risk of reoffending and of a willingness to engage in interventions to address his offending behaviour if given the opportunity to do so. The report acknowledges that the offender benefits from stable employment and accommodation and accepts that he has a present acceptance of responsibility for his offending behaviour with some insight into the criminality of his thinking leading up to the offence.
It was pressed by counsel for the offender Mohamed that his experiences of being in custody for 5 days (23 July 2015 to 28 July 2015), release on strict bail conditions including daily reporting and curfews as well as forfeiture of his passport have brought home to him the serious consequences of his offending conduct. He has been unable to visit his wife in Egypt. He has been unable to visit his unwell mother in Egypt. It was submitted that provision of financial support for family in Egypt was part of his incentive for engaging in the criminal activity. It was further submitted that with the part time work in addition to his regular full time employment in trolley services, offender Mohamed is in a better financial position than he was at the time of his offending.
I accept that given his otherwise 11 years of law abiding membership of the Australian community with the exception of the subject offence, his improved financial position, that he is not an abuser of drugs or alcohol, is of stable family background and in long term employment, that he is in a position to contribute to the community and that he is, as assessed in the report, an individual representing low risk of reoffending.
A significant matter for the purpose of sentencing is that because there is currently no local suitable community service work available, according to the assessment report, he is unsuitable for an Intensive Corrections Order. The Crown conceded that it would be unfair for offender Mohamed to be sentenced to full time imprisonment when he was, as an individual, assessed as suitable for an Intensive Correction Order but that it was not available for him, for that reason.
On the question of parity, he was the foot soldier bag man, who made no contact with the victim and was in the position most exposed to detection by the Police. The objective seriousness and the criminality of his conduct was at a lower level than that of offender Houry who provided the illicit mobile phone for the purposes of managing the event, delivered offender Mohamed to the location by use of the white utility and provided him with the bike. An obvious matter raising the objective seriousness of the conduct of offender Houry above that of offender Mohamed is that offender Houry made the direct telephone communications and a text message with the victim finalising the arrangements for the pickup of the money.
In summary, offender Mohamed represents a low risk of offending, good prospects of rehabilitation and contribution to the community if not sentenced to full-time imprisonment, and separately, the objective seriousness of his offending is in the lower range.
The offender who, as above, has been assessed as not suitable for Intensive Correction Order, due to his residential location but otherwise as personally suitable applies for the following alternative in order that he might avoid full time imprisonment: 1. That execution of the whole of his sentence of imprisonment be suspended and that he enter a good behaviour bond pursuant to s 12 of the Act; or 2. That he be granted an adjournment to permit him to change the location of his residence in order to be reassessed for an Intensive Correction Order at a location where community service is available.
The Crown does not oppose the options sought by the offender.
An Intensive Correction Order is not a swap for a s 12 bond. That alternative deserves separate consideration. There is no applicable standard non-parole period. Section 12 of the Act does not provide for avoidance of a sentence of imprisonment but rather only that the execution of the sentence of imprisonment be suspended. The suspension is conditional upon the offender's compliance with the terms of the good behaviour bond.
Offender Mohamed willingly participated for financial reward in the act of retrieving a bag from a motor vehicle parked outside a residential family home, whilst being aware that he was participating in criminal dealing.
Whilst entitled to remain silent, his positive untruthfulness when dealing with the Police as well as his being apprehended at the international airport display consciousness of criminality, criminal culpability and early lack of remorse.
Those matters plainly show the colour of his criminality, whilst not involving direct contact with the victim, as of seriousness such that as I earlier found: imprisonment is appropriate.
His counsel submits, and I accept that the five days in custody (23 September 2015 to 28 September 2015) following apprehension and the subsequent strict bail conditions causing him to experience the hardship of being unable to visit his wife and unwell mother in Egypt brought home to him the seriousness of his offending. He has remained on bail for 2.5 years with no further offending. In the order which follows I have taken (by deduction) into account time already spent in custody.
Section 3A of the Act requires that the sentence imposed adequately punishes the offender reflecting the objective seriousness of the offence and requires reasonable proportionality between the sentence passed and the circumstances of the crime committed. The conduct of Mr Mohamed in having participated in the obvious criminal activity must be denounced. The protection of society, particularly from crime visiting the precincts of a suburban home as occurred here, deterrence, retribution and reform are the guideposts to the appropriate sentence: Veen v The Queen (No. 2) (1988) 164 CLR 465 at 476. Personal deterrence does not weigh as heavily in Mr Mohamed's case because he has no antecedent criminal history and has been law abiding during the two and a half years of his bail; however, protection of the community and general deterrence as well as appropriate retribution prevail.
Balanced in mitigation is the value of the opportunity of providing offender Mohamed the opportunity of reform and rehabilitation. But for this offence he was a person of good reputation. Not under any duress and for a meagre monetary gain, he threw away that good reputation. It is in the interests of the community to provide him with the opportunity of reform and rehabilitation even at the expense of deterrence, retribution and denunciation of his criminal activity.
In my opinion a head sentence of 1 year imprisonment is appropriate. After allowing the 15% discount on his plea, I determine a sentence of 10 months imprisonment.
Whilst suspending the sentence pursuant to s 12 of the Act, is recognised as less likely to fulfil all the purposes of punishment (R v Zamagias [2002] NSWCCA 17 at [28]); I am satisfied on the circumstances of offender Mohamed's otherwise crime free history, low risk of reoffending and "foot soldier" participation that to suspend his sentence of imprisonment as provided for by s 12 of the Act will denote the seriousness of the offence and the consequences of the offending, whilst at the same time providing him an opportunity, by good behaviour, to avoid those consequences.
These sentencing reasons subsequently turn to consideration of the sentence of the offender Houry whose organisation of the attempted retrieval of the bag and whose communications with the victim by mobile phone call and text on 13 and 16 May 2016 place his criminality in a higher order of objective seriousness than that of offender Mohamed. In addition, offender Houry had a prior history of offending associated with violence and robbery in 2005; whereas offender Mohamed had clean antecedent record, albeit of duration of only about a decade. These considerations weigh in favour of offender Mohamed presenting less of a risk to the community and that his sentence require less specific deterrence and less general deterrence than that appropriate for offender Houry.

Orders 1. Ramy Mohamed is sentenced to a term of imprisonment for a term of 10 months. 2. I order that the execution of the sentence be suspended for the term of the sentence pursuant to s 12 Crimes (Sentencing Procedure) Act 1999 (NSW). 3. I direct that the offender be released from custody on condition that the offender enter into a good behaviour bond for the term of the sentence. 4. Conditions applying during the term of the bond: 1. appear before court if called to do so at any time; 2. to be of good behaviour; 3. accurately advise the Registrar of the Criminal Listing Directorate of the District Court at Parramatta of any change of residential address; 4. accurately advise Roads and Maritime Service of any change of residential address for the purpose of keeping up to date his address shown on his motor vehicle driver licence; 5. accept the supervision and guidance of and obey all reasonable directions of the Community Corrective Service for as long as that Service considers appropriate; 6. accurately provide his residential address when asked to do so by Police.

Mr Mohamed, you should obtain from your lawyers the terms of your bond and be clear of this understanding: If you breach your bond you will be back before me and the prospect of you going to full time jail will be hanging very heavily upon you. Do you understand that?
OFFENDER MOHAMED: Yes, your Honour.

Consideration of Offender Houry

The objective seriousness of the offending of Houry exceeds that of offender Mohamed because offender Houry's conduct included the direct phone contact with the victim in the arrangement for the pickup of the money, made 13 May 2015 and the text communication confirming the arrangement made 16 May 2015.
Offender Houry was in custody for only one day, 22 September 2015, which period has been taken into account.
Whilst I accept that offender Houry's participation was that of a "foot solider" in the criminal activity; nevertheless it is a serious matter that being aware of the criminality of his activity he was willing to communicate by phone directly with the victim and then participate, as did offender Mohamed, in criminal activity associated with a suburban family home in that their purpose was to recover a bag of money from a vehicle parked outside the home.
There was no duress pressuring the offender into the commission of this offence for the meagre financial gain.
That he returned to criminal activity a little more than a decade after having received the benefit of a sentence alternative to full time imprisonment for his serious 2005 offence in Queensland indicates caution against affording leniency for the subject offence. Mitigating that caution is that he has lived as a contributing, working member of the community. He was then 23 years of age. He has matured to age 36 years and has acquired the responsibilities of family including a 3 year old daughter.
Both the Intensive Correction Order Assessment Report and report of Forensic Psychologist, Ms Fleur Taylor dated 2 November 2017 (Exhibit 2) portray that whilst offender Houry concedes the criminality of his conduct (Agreed Facts [43]) he attempts to minimise his culpability. At [23] Ms Taylor recorded: He indicated that he did not believe his behaviour to be illegal at the time however, he said that it quote "seemed shady". Mr Houry reported that he trusted these men due their attendance at his mosque and his desire to be accepted and experience a sense of belonging and social inclusion. I set out above, the Agreed Fact is that he knew that the principal offenders had no legal claim to the money.
The offender did not give evidence on oath. His description of naivety by becoming involved through trusted people, does not meet with my assessment of his participating in that arrangement by telephone communication with the victim whilst aware the purpose was criminal.
Ms Taylor confirms in her report that offender Houry does not suffer any depression, anxiety, formal thought disorder or other clinical pathology. Having emigrated as an infant, he had the benefit of a normal family upbringing albeit his father died when he was young. He enjoyed nurturing from his mother and step father through life. He had the opportunity of secondary and tertiary education. He obtained a Bachelor of Arts in environmental studies. He worked as an environmental and safety advisor including at Mannus Island Detention Centre. He obtained qualifications towards pest control and established his own pest control company working in that business at the time of the offending behaviour. He reported to Ms Taylor, that it was in consequence of criminal charges for the subject offence that he ceased that business because he was unable to renew his public liability insurance. Less than one month before he came before the court at Parramatta on 3 November 2017 for sentence, he obtained employment with the Islamic Council of Queensland as a Halal Certifier working in Brisbane. It was submitted that he surrendered that employment to relocate his family to Sydney in order to be able to meet requirements of an Intensive Correction Order Assessment, if available.
In Sydney the offender resides with his wife's family in Auburn. He continues to receive family support. There is no evidence of drug use or alcohol abuse other than the minor substance matter in Queensland earlier referred to.
The Intensive Correction Order Assessment is that he is of low risk of reoffending and that he presented with insight into the gravity of his offending behaviour and regretted committing the offence. The author of the assessment report recorded Mr Houry presented with the personal resources to learn a salutary lesson from his experience. As earlier observed and in the absence of him giving evidence on oath, I remain cautious of accepting that offender Houry truly accepts the gravity of his criminality.
His counsel submitted that he intends to return to university to study for his master's degree in waste management. It is submitted on his behalf that he should be permitted under supervision to remain in the community in order to provide valuable contribution.
The offender has satisfactorily complied with bail for approximately 2.5 years. For the reasons already stated, the criminality of offender Houry is at a higher level than that of offender Mohamed. His antecedent criminality and his attempts to minimise his criminality are to be taken into account.
Criminal punishment of offender Houry must be in such proportion as to show concern for protection of society and deterrence of him and others who might be tempted to offend, by participation in a criminal enterprise to the extent of directly contacting the victim, as he did in this case. That conduct deserves retribution and requires reform: Veen v The Queen (No. 2) (1988) 164 CLR 465 at 476; s 3A the Act. In my opinion, a term of imprisonment of 2 years is in proportion to the totality of his criminality, and his qualified remorse.
Applying the 15% discount appropriate for his plea, the term of imprisonment is 1 year and 8 months.
The offender has previously had the benefit of an Intensive Correction Order. He has a future opportunity to contribute to society and the incentive of a three year old daughter as well as the family support. Significant restrictions on his freedom are justified in terms of specific and general deterrence and reflecting significant punitive effect in order to satisfy the purposes identified in s 3A of the Act.
In my opinion, applying instinctive synthesis (as explained in Muldrock v The Queen (2011) 244 CLR 120) and mindful of the caution referred to above; in this case a sentence of Intensive Correction Order for a period of 1 year and 8 months will result in a sentence which reflects the objective seriousness of the offence and fulfils the manifold purpose of punishment whilst providing the opportunity of rehabilitation in circumstances of assessed low risk of re-offending.
Offender Houry has been assessed as suitable for an Intensive Correction Order and has signed an undertaking to comply with all obligations of such an Order. In my opinion, sentence by way of Intensive Correction Order will provide the community with the benefit of offender Houry having the opportunity to make a valuable contribution whilst maintaining by his strict supervision appropriate punishment.

ORDERS

Hashem Houry is sentenced to imprisonment for a period of 1 year and 8 months.
Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999 (NSW), the Court directs that the sentence be served by way of an Intensive Corrections Order and is subject to mandatory conditions prescribed by the Regulations under the Crimes (Administration of Sentences) Act 1999 (NSW). Offender Houry should note that if he fails to comply with a condition of the Intensive Corrections Order, a sanction can be imposed by the Commissioner of Corrective Services or the State Parole Authority. Sanctions can include a formal warning, the imposition of more stringent conditions, a requirement that the defendant serve a period of home detention, or the revocation of the Intensive Corrections Order. If the Intensive Corrections Order is revoked, the offender will be required to serve the remainder of his sentence in full-time custody unless the State Parole Authority directs that the sentence be served by way of home detention. The offender must sign documents relating to his sentence before leaving the court premises, and is to report to Corrective Services on 15 March 2018 at the location specified on those documents unless notified of alternative arrangements by Corrective Services.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2018

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