R v Nahle

CATCHWORDS: Criminal law - sentencing - Crown appeal - kidnapping and assault on single victim and further offence of violence on bail - respondent absconded on bail then surrendered to police after more than six years - whether too much weight given to rehabilitation - whether surrender constitutes assistance to the authorities - whether assaults on victim part of the facts of kidnapping - finding special circumstances to reduce non-parole period on basis of accumulation of sentences - whether sentence manifestly inadequate

Bail Act 1998 LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912

AB v The Queen (1999) 198 CLR 111 R v Bardo (NSWCCA, unreported, 14 July 1992) R v MAK and MSK [2006] NSWCCA 381 CASES CITED: R v Pham (1991) 55 A Crim R 128 R v Simpson (1992) 61 A Crim R 58 R v Sutton [2004] NSWCCA 225 R v Thompson (1987) 37 A Crim R 97 R v Wall [2002] NSWCCA 42

PARTIES: Regina (Appellant) Hassan Nahle (Respondent)

COUNSEL: J Dwyer (Appellant) H Dhanji (Respondent)

SOLICITORS: S Kavanagh (Appellant) S O'Connor (Respondent)

LOWER COURT FILE NUMBER(S): 06/213024 06/21/3101

IN THE COURT OF CRIMINAL APPEAL 2006/2237

McCLELLAN CJ at CL SULLY J HOWIE J

Judgment 1 McCLELLAN CJ at CL: I agree with Howie J. 2 SULLY J: I agree with Howie J. 3 HOWIE J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act 1912 in respect of sentences imposed by Sides DCJ (the Judge). The respondent was before the court having pleaded guilty to three offences arising from two separate incidents. The offences occurred in 1999 but the respondent absconded on bail and did not return to Australia until early 2006. The respondent pleaded guilty in May and June of that year and was sentenced on 24 July 2006. The Crown did not appeal until 29 September 2006 and an earlier letter advising that the Crown was considering an appeal was not delivered to the respondent in prison because of an administrative problem in the office of the Director of Public Prosecutions. 4 The first two offences to which the respondent pleaded guilty in the District Court occurred in February 1999. They involved a kidnapping contrary to s 90A of the Crimes Act (now repealed) and an offence of assault occasioning actual bodily harm. The kidnapping offence carried a maximum penalty of imprisonment for 20 years unless the court was satisfied that the victim was released without substantial injury, in which case the maximum penalty was imprisonment for 14 years. The assault offence carried a maximum penalty of imprisonment for 5 years. The third offence, to which the respondent pleaded guilty in the Local Court and was committed for sentence to the District Court, was an offence contrary to s 35 of the Crimes Act being maliciously inflict grievous bodily harm. That offence carried a maximum penalty of imprisonment for 7 years. 5 In respect of the s 35 offence the Judge sentenced the respondent to imprisonment for 16 months with a non-parole period of 8 months to date from 3 February 2006. For the kidnapping offence the Judge sentenced the respondent to imprisonment for 2 years 6 months with a non-parole period of 12 months to date from 3 August 2006. For the assault offence the Judge imposed a fixed term of 6 months to be served from 3 August 2006. The overall sentence imposed was, therefore, one of imprisonment for 3 years with a non-parole period of 18 months to expire on 2 August 2007, the date upon which the respondent is to be released to parole. The facts 6 The Judge determined the facts of the offences occurring in February 1999 after a hearing in which the complainant, the respondent and his wife gave evidence. Although the respondent pleaded guilty to the kidnapping and the assault offences, he disputed much of the complainant's allegations. The Judge decided the facts contrary to the evidence given by the respondent and his wife. The complainant was aged 14 years at the time of the offences and had run away from home. She met the co-offender, a juvenile named Khadour, and a man named Leon. Eventually she began working as a prostitute. Leon took her to premises in Greenacre where the respondent's wife lived, the respondent residing with his parents a short distance away. The respondent permitted the complainant to live in a spare room of the Greenacre house on a few occasions. 7 On 13 February 1999 the complainant was plying her trade when police arrested her. She provided her residential address as that of the premises in Greenacre and the police took her to that address which they searched. She was granted bail to live with her grandmother, but left those premises. By chance she met the respondent and was taken to the Greenacre house. She was threatened with a flick knife and told to go to the rear yard where she was chained to a brick pier under the veranda and secured by a padlock. The respondent produced a rifle, loaded it and gave it to Khadour telling him to shoot her if she moved. When the respondent left to answer a mobile phone, Khadour obtained a baseball bat and struck the complainant to a shin and one of her elbows. 8 After a short time the respondent returned, undid the chain and dragged the victim a short distance onto some grass where he kicked and stomped on her head. She was then taken into a toilet in the house and punched to the face a few times causing her to bleed. She was then placed in a bedroom and directed to write down what she had told the police. Eventually the complaint made her escape from the house and went to a neighbour's premises from where the police were summoned. As a result of the assaults the complainant suffered bruising to her right cheek, a black eye, tenderness over the nasal bridge, slight tenderness to the scalp, tenderness to her neck and bruising over her right tibia. 9 The respondent gave evidence at the sentencing hearing that he never padlocked the chain, never had a rifle and never assaulted the complainant after releasing her from the chain. The Judge disbelieved the evidence. He concluded that the complainant was detained for about 16 hours and that during this period she was in great fear of her safety. The Judge found that she did not suffer substantial injuries. 10 The infliction of grievous bodily harm offence occurred on 10 September 1999 while the respondent was on bail for the February offences. In brief an incident arose between the respondent, who was the driver of a motor vehicle, and the victim, who was a passenger in another vehicle. The respondent's vehicle stopped diagonally across two lanes impeding the other vehicle. The driver of that vehicle, the victim's wife, sounded her horn but the offender failed to move his vehicle. The victim, a man of sixty-six, got out and approached the front passenger's door of the respondent's vehicle. He asked the respondent's wife to move the vehicle. When there was no response, he opened the door. The respondent had, however, alighted from the vehicle and advanced behind the victim. He struck him twice to the head with a hammer causing the victim to fall to the ground. The respondent continued to strike the victim. The respondent's wife drove the vehicle around the corner where he entered it and they drove away. The victim suffered two lacerations to the scalp and a laceration to the forehead all of which required suturing. 11 Again the respondent disputed the facts of this offence and he and his wife gave evidence before the Judge. The victim could not be found but the Judge relied upon the statements of him and his wife. The respondent gave an account to the effect that he acted in self-defence after the victim attacked him by grabbing his throat. He gave evidence that, despite his plea of guilty, he felt he was justified in what he did. The Judge did not believe the account given by the respondent and his wife. The respondent's subjective case 12 The respondent was aged 21 at the time of the offences. The Judge in his sentencing remarks mistakenly stated that he was 18 at the date of the kidnapping offence. He was granted bail in respect of the s 35 offence and left the country with his wife in October 1999. He claimed that police were unfairly harassing him. He went to Lebanon and then in December 2000 travelled to New Zealand where he remained until returning to Australia in February 2006. He worked there as a law enforcement officer for a local council, then in the security industry and finally as a corrections officer. He intended to return to New Zealand and had taken 12 months leave from his work there. He had been married for about nine years and had two children aged three and six. 13 The respondent had a criminal record commencing in 1996 when he was fined for cultivation of a prohibited plant. He was placed on a community service order for receiving offences in October 1996 but breached the order and was sentenced to a term of periodic detention. At the time of the kidnap offence he was on bail for offences of resisting a police officer and using offensive language. He failed to appear at the hearing of those matters and they were dealt with ultimately in August 2006 after he had been sentenced for the present offences. 14 A pre-sentence report indicated that the respondent enjoyed a close and supportive relationship with his family. He had abused alcohol, cannabis and rohypnol during the period 1996 to 1999. He did not receive any professional help but went overseas for a "fresh start". He maintained that he had not used any illegal drugs since 1999. He described his offending as "stupid" and said that at the time he was using drugs and mixing with a negative peer group. It was considered that the respondent had no issues that needed to be addressed by the Probation and Parole Service. The Crown's submissions 15 The Crown complains that the sentence for the kidnapping offence is manifestly inadequate particularly as the respondent was on bail when he committed that offence. It was argued in written submissions that the sentences would have been within range had the respondent pleaded guilty in the Local Court but the Crown withdrew that submission during oral argument. The Crown submitted that the Judge erred by determining that the sentence for the assault offence be served concurrently with the sentence for the kidnapping. 16 The Crown argued that the Judge erred in making the sentence for the inflict grievous bodily harm offence partially concurrent with the kidnapping offence in light of the fact that it was a completely separate offence of violence committed while the respondent was on bail for the earlier offences. 17 The Crown submitted that the Judge inappropriately dealt with the fact that the respondent had returned to Australia and handed himself into police. The Judge said:

"The Court extended leniency for the Offender's co-operation with the authorities by voluntarily returning to Australia and surrendering. In doing so it took into account the matters set out in s 23 [of the Crimes (Sentencing Procedure) Act ]." 18 It was the Crown's contention that the Judge had placed too much weight on the respondent's rehabilitation in light of the fact that it was achieved by fleeing the country in breach of bail and returning over six years later when it suited him. 19 The Crown submitted that the Judge erred in determining the overall non-parole period. The Judge found special circumstances by reason of the fact that he was accumulating the kidnapping and assault offence with the inflict grievous bodily harm offence by six months but then reduced the non-parole period by nine months from the period that would have applied by operation of the statutory proportion. In other words by extending the overall sentence by six months the Judge reduced the non-parole period by nine months. The respondent's submissions 20 Mr Dhanji, who appeared for the respondent, submitted that there was no error apparent in the sentencing remarks and that the sentences were determined in an appropriate exercise of the Judge's discretion. It was argued that they could not individually or in the overall be said to be unreasonable or plainly unjust. The Court was reminded of the principles that govern the approach to Crown appeals both in determining whether a sentence was manifestly inadequate and in the exercise of the discretion whether to intervene. In written submissions he quoted from R v Wall [2002] NSWCCA 42 at [70] where those principles are gathered together. 21 He relied upon the principle of parity in relation to the sentence imposed for the kidnapping offence with the co-offender, Khadour, who had been dealt with according to law, notwithstanding that he was a juvenile, and sentenced by Judge Tupman to imprisonment for 2 years with a non-parole period of 9 months. Unfortunately the sentencing remarks are no longer available and, therefore, the facts upon which he was sentenced cannot be ascertained. The Judge in sentencing the respondent referred to the need to achieve parity with the co-offender notwithstanding clear differences between them including their ages and the differing subjective features. Mr Dhanji warned this Court against creating disparity by re-sentencing the respondent. 22 Mr Dhanji submitted that there was no error in the Judge taking into account the fact that the respondent returned to Australia and surrendered himself to police. In that regard he referred to the decision of the High Court in AB v The Queen (1999) 198 CLR 111 where it was held that the applicant was entitled to have taken into account that he had not opposed his extradition to Australia to face charges from which he had fled. 23 Finally the Court was asked to consider in the exercise of its discretion the delay in the lodging of the Crown appeal, a period of about two months, and the absence of any indication to the respondent that an appeal was being considered: see R v Bardo (NSWCCA, unreported, 14 July 1992) and R v Pham (1991) 55 A Crim R 128. In this regard reliance was placed upon an affidavit of the respondent where he states that he was surprised when he was notified of the appeal as he believed the proceedings were completed. Did the Judge err? 24 An important consideration in sentencing the respondent was clearly the fact that he had absented himself for over 6 years before returning to Australia to face these charges. Such a situation leads to the difficulty that, on the one hand, the court was to sentence the respondent as he stood before it, a rehabilitated man, but, on the other hand, the court could not grant the respondent the full benefit of the advantages he had gained by absconding on bail. The court could not allow the public in general to understand that an offender can put himself in a more favourable position by breaching his bail than would have been the position had he complied with his bail undertaking and stood for sentence nearer the commission of the offence. 25 In such a situation as confronted the Judge, there are conflicting public policy considerations that can only be resolved on a case by case basis. But generally the balance must come down heavily in favour of the protection of the criminal justice system from manipulation by an offender such as the respondent. This is particularly so where the offence involves personal violence against an individual in the community who has a real interest in the matter being dealt with to completion as quickly as possible. In the present case the effects of the offence upon the victim of the kidnapping were aggravated by the respondent fleeing the jurisdiction and her being required to give evidence of the offence so many years after its commission. This is not to suggest that the respondent is to be punished for absconding on bail. There is an offence under the Bail Act with which the respondent could have been charged for failing to appear: see s 51. But he cannot receive the full measure of any advantages he may have gained by failing to comply with his bail undertakings. 26 Throughout the sentencing remarks there is not the slightest evidence of an appreciation of the fact that the weight to be given to subjective matters in the respondent's case had to be substantially reduced by the fact that they had been earned by his absconding and remaining out of the jurisdiction for such a lengthy period. Rather there are examples of the respondent being rewarded for the results of his absconding on bail. 27 The most obvious example in this regard is to be seen in the Judge granting the respondent the benefit of leniency under s 23 of the Crimes (Sentencing Procedure) Act; that is for assistance to the authorities. The Judge, for reasons that I do not understand, was chary of indicating any discounts given, even for the utilitarian value of the plea to the s 35 offence in the Local Court. So he did not indicate the degree to which leniency under s 23 figured in the process of deriving the sentences he imposed. But whatever it was, there was no justification for considering his surrender to police as a discrete factor warranting any reduction in the sentences. The use of the section was in my view completely inappropriate and counsel for the respondent did not seek to justify it before us. 28 As I have noted, the respondent relied upon AB v The Queen to support the proposition that the respondent was entitled to a significant degree of mitigation for returning to Australia and surrendering to police. But in AB the offender had fled before being charged. He was legally entitled to do so. There was no countervailing public policy in permitting him credit for not opposing his extradition to face the charges for which he was sentenced. That is not the situation here. I believe that the respondent's surrender to police was relevant only to the extent that it might impact upon an assessment of his contrition. 29 In the present matter the Judge found that the respondent was contrite. That is a somewhat surprising finding in view of the fact that he challenged most of the facts of the kidnapping offence including his use of a knife and rifle, refused to acknowledge that he had injured the complainant and believed that he was fully entitled to strike a sixty-six year old unarmed man with a hammer to the head. The Judge found that he and his wife had lied to minimise the criminality of the offences, a finding inconsistent with the respondent being fully contrite for what he had done. In that regard the Judge said about the kidnapping offence:

The Court gained the distinct impression that the Offender was doing his best to minimise his involvement in these offences and falsely passed them off as a bit of juvenile horseplay. 30 In any event, contrition has little value by itself and does not alone justify leniency: see R v MAK and MSK [2006] NSWCCA 381. If the Judge had based his finding that the respondent was unlikely to offend on the basis of contrition alone such a finding would not have been open to him. In my view contrition had little role to play in this case. Favourable findings as to re-offending and reform arose chiefly from the fact that apparently the respondent had not committed any offences in the more than six years since the offending. 31 The Judge also erred in his approach to the utilitarian value of the plea of guilty to the kidnapping and assault offences. The Judge held that there was "some limited utility value" in the pleas of guilty to those offences. He then went on:

"In assessing the leniency, based on the utility, the Court took into account the age of the matter and the difficulties prosecuting authorities experience in presenting cases after such delay. However, the parties did not present any material from which the Court could assess the strength of the prosecution case." 32 Two comments can be made about this passage. Firstly I have difficulty in understanding how an offender could receive any advantage from delay or the effects of it on the prosecution of the offence when he was responsible for bringing about that delay by fleeing the jurisdiction. The respondent was again being rewarded for his misconduct. Secondly, with respect, the Judge has completely misconceived what are relevant factors in assessing the utilitarian value of a plea. It has nothing to do with the ability of the prosecution to prove the charge. The error in the Judge's approach is made obvious by the reference to the strength of the prosecution case, a matter that is irrelevant to a consideration of the utilitarian value of a plea: R v Sutton [2004] NSWCCA 225. The matters to which the Judge was referring might be relevant to contrition but provided the respondent no other advantage. The utilitarian value of the pleas in the kidnapping and assault offences in this case could only be the saving of time, effort and expense of a trial but that was offset by the fact that there was a two-day hearing of evidence on the plea. In my view the utilitarian value could not have exceeded 10 per cent. 33 The Judge clearly took into account to a very significant degree that the respondent had been fully rehabilitated in the period since the offence. That was a relevant matter but it could not be given the importance that it might have been accorded if the offender had not fled the jurisdiction and remained abroad for so long. In R v Thompson (1987) 37 A Crim R 97 Street CJ stated after referring to aspects of the respondent's rehabilitation:

"The balance against those considerations is undoubtedly the circumstance that the respondent has now made an effort to rehabilitate himself, an effort that has been attended by some success. He cannot, however, claim the full benefit of this in as much as the freedom he used in order to rehabilitate himself was freedom that flowed from his having absconded from bail. It would be an undesirable precedent to encourage persons to abscond from bail and rehabilitate themselves and then come forward and seek to have that taken into account significantly when they stand for sentence. Rehabilitation already accomplished will, of course, always be taken into account however it may have arisen but, when it has arisen through self taken liberty by a bail absconder, it will be given less significance than if it has taken place simply in the ordinary passage of time."

See also R v Shore (1992) 66 A Crim R 37. 34 Clearly the Judge was entitled to take into account that the offender had aged and presumably matured and that there was now no need for personal deterrence notwithstanding that the offences were committed while the respondent was on bail. He was also entitled to take into account that the respondent was no longer misusing drugs or alcohol. However, the Judge should have tempered the weight to be accorded to the respondent's rehabilitation and neither the remarks or the sentences imposed reveals that he did. 35 The Judge made the sentence for the assault offence completely concurrent with the kidnapping offence. This was on the basis that "the assault offence was part of the detention and designed to heighten the victim's state of fear". He went on:

"Thus the requirement that the Court consider the two February offences separately involves a considerable degree of artificiality." 36 With respect I do not understand that comment. The assault with the knife and the rifle certainly were part of the detaining and intended to frighten the respondent into making her more compliant. But it is one thing to detain a person and incidentally assault her in bringing about that detention, however it is quite another to intentionally beat the detainee in order to force her to carry out some task during the detention. The assaults to the victim, particularly in the house, were designed to obtain from her a written account of what she told the police. I doubt that it was open to the Judge to take into account the infliction of injuries to the victim as part of the kidnapping once he had found that she was released without being substantially injured. But in my opinion the Judge should have imposed an additional punishment for the infliction of injuries by the assaults over and above the punishment for the detention. 37 It was also, in my view, an error of principle for the Judge to determine to make the sentence for the s 35 offence partially accumulative with the kidnapping. The Judge acknowledged it was a separate act of criminality from the earlier offences: it was committed some six months after the kidnapping offence. The Judge had also noted that it was committed while the respondent was on bail for the earlier offences. In those circumstances I fail to understand how the principle of totality required only partial accumulation between the sentences and then by only six months. I can only suspect that the Judge took into account the delay in sentencing, but, if he did, this was an erroneous approach in the circumstances of this case. 38 Finally the Judge was in error in the method by which he determined the non-parole period. Having considered that there should be some accumulation between the kidnapping sentence and that for the s 35 offence, the Judge said:

"Because of the accumulation it is appropriate to find special circumstances"

As has already been noted, the consequence of the approach he took was that, by extending the overall head sentence by six months, he reduced the non-parole period by nine months. It can only be assumed that the Judge did not intend such a result. 39 The finding of special circumstances only because of the accumulation of sentences is made to ensure a proper relationship between the overall head sentence and the overall non-parole period: R v Simpson (1992) 61 A Crim R 58. The finding is normally made to ensure that the statutory proportion is retained. If some reduction is not made to the non-parole period of the last sentence imposed, the result will be that the overall non-parole period will approach too closely to the overall head sentence. I do not understand that there could be any other reason for finding special circumstances where accumulating sentences in the present case. The Probation and Parole Service did not believe that there was any issue that the Service needed to address or for which it could assist the respondent. The Judge in the present case reduced the non-parole period for both the kidnapping and the s 35 offences, yet there was no legitimate reason to do so. 40 In my opinion the discretion of the sentencing Judge clearly miscarried in a number of respects and the result was the imposition of sentences that were individually and in the overall manifestly inadequate to a very significant degree. I do not believe that there is any need to significantly moderate the kidnapping sentence in order to reflect parity with the co-offender because there were so many obvious differences between their respective criminality and subjective circumstances. The Crown conceded that the sentence for the s 35 offence was within the available range, but I do not believe that concession should have been made. A sentence of sixteen months for an assault of that nature by a person on bail for offences of violence was manifestly inadequate whatever was the discount given by the Judge for the plea. But in light of the Crown's concession I would not interfere with that sentence as a matter of discretion. The Crown withdrew its concession that the sentence for the kidnapping would have been within range had there been a plea in the Local Court. With respect, that concession also should never have been made because even with a discount of 25 per cent the sentence was clearly manifestly inadequate to reflect the objective circumstances of the offence committed while the respondent was on bail. 41 It is unfortunate that the Crown did not notify the respondent that it was considering an appeal and it is quite unacceptable that such an important step should have failed because for some reason the relevant fax did not transmit to the prison. But the discretion is exercised not to punish the Crown but as a matter of fairness to the respondent. The consequence of a failure to notify the respondent that the Crown was considering an appeal and a delay of two months in filing the appeal will depend upon all the relevant circumstances including the nature of the sentence against which the appeal is lodged and the degree to which the sentence imposed is inadequate. It is more likely that the discretion to refuse the appeal will be exercised where the respondent has received a non-custodial or short custodial sentence, or where there has been significant prejudice caused to the respondent as a result of the delay. There is nothing in the affidavit of the respondent or in the circumstances of this particular matter that justifies the Court from refusing to interfere in sentences that are so inadequate. There can be less sympathy for the respondent in thinking that the proceedings had been concluded after sentence had been passed when he had delayed them for so long by his own actions. 42 According to the normal practice the sentences I propose are the least that could have been imposed by the Judge and they should not be taken as an indication of what the sentences ought to have been. In particular the failure of the Court to increase the sentence for the s 35 offence should be no indication that the sentence was appropriate. There are no special circumstances except to ensure that the overall minimum term accords with the statutory proportion. The respondent served about two months in custody before being released and it appears that the sentencing Judge overlooked this fact. The sentences have been backdated by two months for this reason. 43 I propose that the respondent be re-sentenced to a total sentence of 4 years and 3 months from 3 December 2005 with an overall non-parole period of 3 years and 1 month to expire on 2 January 2009. 44 In my opinion the following orders should be made:

2. In lieu the following sentences are imposed: (a) for the offence of inflict grievous bodily harm imprisonment for 16 months with a non-parole period of 12 months to date from 3 December 2005 with the non-parole period expiring on 2 December 2006. (b) for the offences of assault occasioning actual bodily harm a fixed term of imprisonment for 5 months to date from 3 December 2006 and to expire on 2 May 2007 (c) for the offence of kidnapping imprisonment for 2 years and 9 months to date from 3 May 2007 to expire on 2 February 2010 with a non-parole period of 1 year and 8 months to expire 2 January 2009 the date upon which the respondent is to be released to parole. 20 December 2007

45 McClellan CJ at CL and Howie J: The Court in this matter was constituted by Mr Justice Sully and ourselves. Mr Justice Sully has since retired from the Court. It has come to our attention that there is a discrepancy between the sentence which was intended to be imposed upon the respondent and the orders pronounced in respect of the offence of kidnapping. It was intended that there be an overall sentence of 4 years 3 months from 3 December 2005. That sentence would expire on 2 March 2010. The overall sentence according to the orders made is one of 4 years and 2 months expiring on 2 February 2010. In view of the difference of only a month in the overall term and it being in the respondent's favour, we do not intend to re-sentence the respondent. **********

20/12/2007 - Additional paragraph (45) added - 20/12/2007 - Paragraph(s) 45

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