The offender pleaded guilty to three offences when presented on indictment and there is one offence to be taken into account on a Form 1.
The pleas of guilty were entered on the first day appointed for his trial on 11 February 2019 after there were negotiations leading to resolution of the matters in dispute between the parties. The ultimate agreement was that he would plead guilty to count 1 and to counts 2 and 3 which were included in the indictment ex officio. There has been some discussion about the extent to which he should have a discount for the utility provided by those pleas of guilty but in the circumstances when the counts in 2 and 3 were included in the indictment on the day of trial, the first opportunity then presented to him, he pleaded guilty and in those circumstances a discount of 25% should be applied for utility in accordance with the decision in R v Borkowski 2009 NSWCCA 102.
The sentence to be imposed on count 1 however was on the day of trial and was a matter to which he could have made admissions at least before the day the plea was entered. That said there were ongoing negotiations and there was an indication of a plea to that charge early on in the process as outlined in the submissions provided by Mr Karim on behalf of the offender. Having reviewed that history I am of the view that a discount of 20% should be applied to the sentence that would otherwise be imposed for that offence.
I should observe that the discounts in each case will be applied to the indicative sentences which I have found appropriate for each of these offences. Those indicative sentences were reached on a synthesis of objective and subjective matters including the extent to which there has been contrition and remorse and there are prospects of rehabilitation. Once that synthesis is completed it is to the product of that analysis that the discount will be applied in each case.
The first offence is an offence contrary to s 154G Crimes Act 1900. The offence is charged in the following terms:
"Between 10 January 2013 and 15 February 2017 at Sydney in the State of New South Wales did facilitate a boat rebirthing activity on an organised basis knowing that the boat rebirthing activity was carried out on an organised basis".
The offence is contrary to s 154G Crimes Act and the maximum penalty specified is imprisonment for 14 years with a standard non-parole period of four years for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999.
Those periods were introduced in that part of the Crimes (Sentencing Procedure) Act and later amended after the decision of the High Court of Australia in Muldrock v R 2011 HCA 39. There has been some judicial pronouncement since those amendments and upon further consideration of what the High Court said in Muldrock v R.
The legislation taken at its face provides that the standard non-parole period for an offence is that which is included in the table to the aforementioned provisions. The standard non‑parole period represents the non-parole period for an offence that falls within the middle of the range of objective seriousness taking into account only the objective factors affecting the relative seriousness of that offence. The standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. The court is to record its reasons for setting a non-parole period that is longer or shorter, identifying each factor taken into account, and thus upon the application of those provisions, the objective gravity will be assessed on the consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders but wholly by reference to the nature of the offending bringing into account relevant factors where relevant in s 21A(2) and (3) Crimes (Sentencing Procedure) Act except for those that are essential elements or integral characteristics of the offence.
I have referred to s 21A(3) Crimes (Sentencing Procedure) Act which deals with mitigating factors because in light of recent pronouncements by his Honour Johnson J in the New South Wales Court of Criminal Appeal: Tepania v R [2018] NSWCCA 247 at [110] et seq; the concept of objective gravity might be informed by some matters that were once or might have been thought to be strictly or perhaps relatively subjective to the offender or class of offenders.
When one fixes a non-parole period it is but part of the task whereby the court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. The court must not embark upon an arithmetical staged or tiered process of reasoning when assessing appropriate sentence but must identify all relevant matter bearing upon the question of the appropriate sentence and the process of intuitive synthesis as discussed, for example by McHugh J in Markarian v R 2005 HCA 25. When determining sentence for an offence for which there is a specified standard non-parole period it and the maximum penalty are legislative guide posts for the court along with other established sentencing practices and by reference to matters identified where relevant in s 3A, s 21A and s 22 Crimes (Sentencing Procedure) Act.
The parties agree that this offending falls below mid-range of objective seriousness. It is said on behalf of the offender that it is toward the bottom end of the range but the Crown submits and I agree that the objective gravity falls somewhere above the low end of the range. It is always a matter of judgement to determine where objective gravity will fall when assessing offending conduct but bringing to account what is a relatively sophisticated sequence of misconduct which involved a measure of planning and organisation, albeit not such as to extend beyond what one would expect in such misconduct, and so not brought to account as an aggravating factor, and considering the circumstances of the offending in which the first offence was committed, I am satisfied applying the principles to which I have referred that the offence falls somewhere perhaps halfway along the scale between the low end and mid-range of objective gravity.
It does not follow that if there was a sentence of imprisonment to be imposed requiring the offender to go into gaol that the non‑parole period imposed would be somewhere about one quarter of the standard non-parole period. The ultimate determination of sentence including the non-parole period depends upon the synthesis of the objective and subjective facts to which I have referred as discussed in Tepania v R ibid, including, if it were appropriate to reach a decision upon the point, whether there were special circumstances.
I have already indicated that in this case I propose to sentence the offender to an intensive corrections order. I will, once I have identified the indicative sentences for these offences, impose an aggregate sentence and make appropriate orders for the sentence to be served by way of an intensive corrections order in the community.
The second and third counts were contrary to s 154I(2) of the Crimes Act; these were in identical terms; the charges were expressed thus:
"On 14 February 2017 at Punchbowl in the State of New South Wales did dishonestly have possession of a motor vehicle a unique identifier of which had been interfered with".
The maximum penalty specified for these offences is imprisonment for five years; there is no standard non-parole period specified for the purposes of Part 4 Division 1A of the Crimes (Sentencing Procedure) Act.
When I sentence the offender for his crime in count 1 he asks that I take into account an additional offence of goods in custody contrary to s 527C(1)(a) Crimes Act. When he was arrested he was found in possession of a garden edger the particulars of which are set forth in the court attendance notice. The maximum penalty specified for that offence is imprisonment for six months with a fine if the court were minded to impose it and if he was being sentenced for that offence in the more traditional fashion, but as an offence being taken into account when I determine sentence for the first count on the indictment different considerations apply. There must be identified an appropriate indicative sentence for count 1 on the indictment subject to the consideration that must be given to the totality of the offending involved in all three of the offences to which he has pleaded guilty and subject to the increase in what would have otherwise been the sentence imposed on count 1 were he sentenced on that count without the additional offence being taken into account.
Having availed himself of the arrangement available to him under s 32 Crimes (Sentencing Procedure) Act he has avoided a separate punishment for the goods in custody offence and he has been advantaged, but at the same time he has provided utility and that must be brought to account in his favour. The relevant principles are well known and stated clearly by the former Chief Justice in Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518. The additional offence will impact upon the indicative sentence that would have otherwise been imposed had count 1 stood alone. There will be a moderate increase, perhaps marginal is a better term, reflecting the need for greater weight to be given to the aspect of personal deterrence arising from the extent of the offender's misconduct and the community's entitlement to denunciation and retribution for the entirety of the offending upon which he engaged.
The offender has spent no time in custody for this misconduct; he has been subject to bail since his arrest for an extended period and that has required him to report three times each week to the police. He has not been in breach of those bail conditions at any time. Although the bail conditions could not be said to have been onerous there is a measure of inconvenience involved and I am obliged, I believe, to bring to account that as part of the punishment that he must suffer for what he has done wrong.
There is reference to a number of individuals included in the material before me, co-offenders in the sense that all were engaged upon this in a broad range of activity. Indeed I have sentenced two of these offenders, Ahmed Ghazzaoui and his brother Mohamed; they were each charged with one count of knowingly facilitating the boat rebirthing activity contrary to s 154 Crimes Act. One was a little more involved than the other; that is, Ahmed was more involved than Mohamed. In the result I sentenced Ahmed to imprisonment for 2 years and 4 months with a non‑parole period of 8 months and Mohamed to imprisonment for 2 years and 2 months with a non-parole period of 6 months. As the law stood at that time intensive corrections orders were not available to them because the sentences extended beyond two years. The outcome in those proceedings reflect the process that one follows in a case when determining sentence, first of all to decide what sentence ought to be imposed if the line in s 5 Crimes (Sentencing Procedure) Act was crossed and no sentence other than a sentence of imprisonment was required. If the sentence is two years or less one could, if persuaded to the view that it was appropriate, have the sentence served in some manner other than in the custodial setting but as I have said by reason of the sentence being more than two years in each case other options were not available.
There is another offender named Katahie listed for sentence before me on 21 June 2019 and another offender for sentence part heard before his Honour Judge Williams SC on 31 May 2019.
There are two other offenders. One named Okalpoglu was charged with one offence contrary to s 154(1) Crimes Act and one offence of publishing false or misleading material contrary to s 192G(a) Crimes Act. He was dealt with in the Local Court and is the subject of a bond pursuant to s 9 Crimes (Sentencing Procedure) Act of 12 months duration from 27 June 2018. The other, a woman named Ghazzaoui and related to the two offenders who appeared before me, was dealt with for inducing another to accept a non‑genuine unique identifier contrary to s 154H(1)(d) Crimes Act and one of dishonestly possessing an interfered with unique identifier contrary to s 154I(1) Crimes Act. She was sentenced to a s 9 bond for a period of 18 months from 8 August 2018. Both of those offenders were dealt with in the Local Court.
The Crown has included my judgement in the proceedings against the Ghazzaoui brothers; I have reviewed what I had to say there and the contrasts to be drawn between the misconduct upon which they engaged. Their subjective cases is accurately summarised in the Crown's submissions on sentence, in my view.
That said, although the proceedings began with recognition that parity had a role to play in this case, as I observed there is no reference to the other offenders upon whom I imposed sentence in the facts before me today. As I perceive the particulars, the vessels or the vehicles the subject of these charges were not the subject of the facts before me in respect of the other two matters. It is not a concluded view because I confess I have not made a close analysis of the two documents, but the absence of reference to the Ghazzaoui brothers in the facts upon which I am to impose sentence today limits the application of parity principles except to the extent that the conduct upon which all of these offenders has engaged is part of a broad joint criminal enterprise involving the theft and rebirthing of vessels, predominantly jet skis. Thus, I should sentence this offender with regard to the facts to which he has pleaded guilty bearing in mind that this was one part of an overall enterprise involving the other offenders.
I should observe that in the facts before me for the prosecution of the Ghazzaoui brothers, this offender was the subject of reference but I have put those particulars aside because they are not the facts that are before me for the purposes of determining sentence here today.
The facts relevant to count 1 are as follow.
First of all with regard to a jet ski with registration xxx3N, on 9 February 2016 the police seized a Yamaha jet ski with that number from an address at Chester Hill where it was stored by the registered owner MM. He had before that purchased the vessel from the offender on 11 December 2015 for the sum of $13,000. Before that transaction the offender had rebirthed that craft. It is not suggested that MM knew that the craft had been rebirthed. Upon examination a Hull Identification Number xxx10 was discovered. That revealed that the craft was manufactured in 2009. The examination continued and it was found that the jet ski engine serial number, manufacturer's build plate, and a secondary Hull Identification Number had been removed. The police located a covert Hull Identification Number xxx13 on the jet ski and that correlates it with a registered number xxx4N which had been stolen on 29 September 2015 from a home in Peakhurst. The offender was the registered owner of the vessel for eight days prior to sale. That was between 4 December 2015 to 11 December 2015 and the sale is the sale to MM.
Sometime in mid-2015, the offender contacted a man named JR who was involved in the jet ski racing industry in Queensland and made enquiries about purchasing jet ski parts and hulls. As a result, JR sold to the offender several used and badly damaged jet ski hulls in August 2015. One of the hulls that JR sold to the offender was a damaged hull with the Hull Identification Number ending in xxx10. That was the Hull Identification Number found by police upon examination of the craft seized from MM.
The offender purchased that damaged hull for $1,000 and that Hull Identification Number was used by the offender to rebirth the craft later registered as xxx3N acquired by the hapless MM.
On 10 November 2015, the offender attended a boat code agent to obtain a boat code certificate which is necessary to register the craft. He presented the agent with the Hull Identification Number ending in xxx10. He signed a full statutory declaration stating that he had purchased the jet ski from JS from an address in Queensland on 1 November 2015 and that he did not receive any registration papers at that time. He received from the agent a boat code certificate and on 4 December 2015, he attended Roads and Maritime Services at Burwood and registered the jet ski with the Hull Identification Number ending in xxx10 and it was given the registration xxx3N.
In order to register the craft, he provided a false handwritten receipt of sales stating that he had purchased the vessel from JS in Queensland on 1 November 2015 for $6,000 and thereafter, as I have noted, he sold the vessel on to MM.
The next craft concerns xxx4M. In late 2016, police obtained a warrant to intercept a mobile telephone used by the offender. The use of the phone was recorded and on 27 December 2016, the offender received a photograph by SMS showing a jet boat, white and red, with registration xxx1M.
On 31 December 2016, the offender had a number of telephone calls with a man named Michael Cook. During the calls that took place they discussed Cook stealing a craft from an address in Lugarno in return for payment. The offender is recorded having said,
"Please, because no one's there man ... I just went there and no one's there ..." and… "It's outside on the road, I told you I pushed it out to the road". He also said, "How much do you want? I've pushed it out and done the lock. It's just the drive. Cash is on me".
Cook undertook to steal the vessel during the night.
The following day, 1 January 2017, the offender Okalpoglu called the offender and asked if he had got "the thing". The offender said that he had not.
On 2 January 2017, there was a telephone call between Cook and the offender. Cook indicated that he had attempted to steal the craft but was disturbed. The offender told him that he had another job for him.
On 4 January 2017, the police conducted a patrol in Lugarno and located a jet ski number xxx4N parked in the front of an address in Lugarno Parade. It had the same characteristics of make and model as the picture message that the offender had received on 27 December 2016. Thus, although it appears in respect of this activity, no loss was suffered. The misconduct falls within the parameters of the provision creating the offence and was aptly described as conduct facilitating a boat re-birthing activity on an organised basis.
The next vessel, a jet ski, relates to registration xxx0N. On 5 January 2017, Cook contacted the offender and told him that he had a jet ski,
"2015, blue, SVHO, mint condition, alarm and electric starter button + lanyard around 30 hours on it but $1,200 as they are getting hard to get".
The offender asked Cook for further details about the colour and model and said,
" ... I want an FX3. If it's an SX, I'm just going to boom it off to my other mate. You know what I mean".
The offender told Cook he wanted the vessel and arranged with "his mate" for it to be delivered to him. MC told the offender that the craft came from Revesby.
On 6 January 2017, the police stopped Cook who was with another man named Cox. They were towing a blue Yamaha FZS jet ski, registration xxx0N, previously reported stolen from an address at Revesby. It was reported that day. The vessel was seized and the investigation revealed that on 5 January 2017, Cox had sent to Okalpoglu a picture of the jet ski.
On 6 January 2017, Cook told the offender that he could not talk on the phones because he "got done".
On 9 January 2017, the offender and the co-offender Okalpoglu had a telephone discussion in which they discussed the stolen vessel xxx0N. In the course of this, the man Okalpoglu told the offender that the guy who got caught on his way to the offender's house had the offender's address typed in his GPS. The police now had that and that it showed where he was taking the craft to. The conversation is quoted in the facts; I do not propose to repeat that here.
On 14 February 2017, the police executed a search warrant at the offender's house in Punchbowl. There they found the vehicle, the subject of count 2 on the indictment. This is a Mitsubishi Lancer EVO. It was missing parts including the front fender and bonnet. These were found in the offender's bedroom. The side quarter window was missing and the driver's side quarter window had been removed. The front windshield was also missing. The ignition lock was located in the boot of the car, severely damaged, consistent with it having been stolen. The VIN plate had been removed and there were no registration plates attached to the car. In the rear of the car, the police located a back pack belonging to the offender containing tools consistent with use in breaking car ignition barrels as well as an ignition with an ignition override module taped to it.
The offender claims that he was doing an engine replacement job for a friend named John from Newcastle, that the vehicle had been transported from Newcastle by tow truck on 12 February 2017, explained that the driver's side quarter window was broken because someone had attempted to steal it, shortly after which it was delivered to him. He said the owner had removed the VIN plate because of a rust spot on the scuttle plate. There were no registration plates he said because the owner had not registered yet. He said he would provide the police with contact details for John but did not do so. The police reviewed all intercept calls to and from the offender's phone during the time when he was supposed to have made contact with this man John. There were no calls that corresponded with these representations. The car was seized and determined to be registered xxx4K reported stolen on 5 January 2017.
Also on the property, the police located parts which related to the vehicle, the subject of the third count on the indictment. He represented that these items were from a Mitsubishi Lancer that he had purchased and he had not yet received the paperwork from the previous owner. He made representations regarding each of the items that were identified by the police. These parts were seized and confirmed to be from a motor vehicle xxxFM registered in Queensland as stolen on 25 November 2016.
The Form 1 offence in respect of the garden edger was brought when that item was found upon the execution of a search warrant. It is the property of Canada Bay Council.
The offender is now 35 years of age. He gave evidence before me adopting the representations attributed to him by a psychologist in a report that is part of Exhibit 1 and agreeing with the content of a sentence assessment report which is part of the Crown bundle. He expressed his contrition and regret for having behaved as he has both to the community and to his family.
He impressed me as a man who is less sophisticated than one might glean from the conduct upon which he engaged and the representations which were captured in the course of his various telephone calls. The psychologist's report to which I shall come has him, effectively, within the average range for intelligence and personality. The presentation the offender gave was not entirely consistent with the sophistication of the enterprise in which he had participated but such disparity as there might be found between his presentation before me and what is available in the records, is of marginal significance overall.
I accept him to be a witness of truth. I accept his expressions of remorse to be sincere and I am satisfied upon the evidence that I have, that his prospects for rehabilitation are strong. I am rather more circumspect about the opinions offered by the psychologist in terms that he has been burdened by a major depressive illness for a significant part of his life. I accept that he has anxiety and stress, the product of this prosecution and the possibility or even the probability that he would go to gaol for this misconduct. But his behaviour in the commission of the organised crime in which he participated is not consistent with someone who is burdened by depression that might have explained his decision to conduct himself as he has. He engaged in his wrongdoing for financial gain. The crimes were organised. They were not spontaneous or opportunistic and to the extent that he might have had a measure of melancholy perhaps extending to depression because of his circumstances including the care that is required to provide for his mother after the death of his father could not be said in my view to have contributed to his decision to commit these offences.
The offender has a record beginning in December 2002 in the adult courts. The offences upon which he has appeared and faced punishment began with resisting an officer in the execution of duty, negligent driving, driving while suspended, failing to give particulars to the driver of a vehicle in which he might have had a collision it would appear, driving dangerously, using a mobile phone whilst driving, driving whilst disqualified, having goods in custody, not carrying a licence, using offensive language, failing to stop at a red light, possessing prohibited drugs, driving with an illicit drug in his blood.
Apart from the goods in custody offence, this is the first time it appears that he has been before the court for an offence of dishonesty and though his record does inform the extent to which he might have otherwise been entitled to a measure of leniency, it is not such a record that he could be found to pose a continuing risk to the community in the commission of offences such as are before me. It does not dissuade me from the view that there are prospects for rehabilitation as I have described.
His record is an aggravating factor but only within the parameters of what was said by the Court of Criminal Appeal in the decision in McNaughton [2006] NSWCCA 242. It is relevant to the question of specific deterrence, and the extent to which leniency might be offered. It does not increase the sentence that is otherwise proportionate to the misconduct or aggravate the offending assessed objectively.
There is a contrast between what is said in the sentence assessment report and what is contained in the psychologist's report. The sentence assessment report he described in the course of evidence as having been prepared by the officer who attended upon his home over two consultations, one of 40 minutes and one for an hour. According to the report, he appeared to have justified his misconduct when he stated he was fearful he might become homeless, had he not committed the offences. The offences were for financial gain because his income was limited to social security, effectively. His household expenses had become too high. He had not, it appears, taken steps to find an alternative to alleviate his financial stress or at least could not provide Community Corrections with any information upon any attempt to have done so. He is attributed with a lack of understanding of the impact of his offending when he noted that there was only one victim. Implicit in that proposition is a minimisation of the extent of his misconduct.
He has been assessed as suitable for Community Service. If made the subject of an order such as an intensive corrections order, the Community Corrections will suspend the supervision required under the terms of that order subject to any special further conditions that the court might impose. He has available to him community service up to 21 hours per week and I intend to impose that as a condition of the intensive corrections order that I am going to specify.
A psychologist's report was written on 23 April 2019. He was assessed at a clinic over three and a half hours including two hours of an interview and one and a half hours of psychometric and neuropsychological testing. The report is consistent with the sentence assessment report with some qualification. The report as one has come to accept is lengthy and detailed. It provides information regarding his mother's health problems and he is attributed with having suffered long term depression. The sentence assessment report dealing with mental health noted he has no formal mental health diagnosis and that he has feelings of stress and depression since police conducted a search of his home. He reported to the Community Corrections officer that he was engaged with a psychologist but contact with the psychologist confirmed that contact was made with her for an expert report but not ongoing counselling. There is reference to him having attended a gambling support group and was booked to attend a second time but I have heard no evidence in relation to that proposition.
The psychologist contacted said that he was referred to another psychologist for ongoing counselling but there is nothing before me about that having been commenced.
Returning to the psychologist's report, there is reference to his financial and his mother's health problems being the stressors contributing to the misconduct and his long term depression about which, as I said, I am quite circumspect. There is reference to his expenses and limited income. There is reference to his report of longstanding depression ever since his father died and there has been further tragedy with his family with two adults and a grandmother who passed away. These, it is said, exacerbated his depression and the report continues on page 2,
"Therefore, Mr Obeid explained that his significant financial burden and his mental health contributed to his involvement in the offences".
His financial burden, I find, might well have contributed to his misconduct because there could be no finding other than these offences were for financial gain within the parameters of what the provision creating the offence contemplated but the level of participation as described in the facts makes it difficult to come to a view that whatever his state of mental health it contributed to his involvement in what was organised and planned activity in no way spontaneous or opportunistic. He is attributed with remorse which I have accepted. He has increasing anxiety and stress and depression since the charges so I would accept that proposition. Only the most robust of those who commit crime against society do not suffer anxiety, stress and depression at the thought of going to gaol for a crime that they have committed.
His father died in 1999 when he was aged thirteen. His father had a history of psychiatric and trauma but no criminal antecedents or substance use. That is not further described. His mother is currently aged sixty four. She has no criminal trauma or criminal history. She has a history of anxiety disorder and other multiple health problems to which I shall come.
He said he had a difficult childhood, but the reason it was difficult, according to this, is that he grew up in poverty because his parents were of modest means and could not provide the wealth and accoutrement of wealth that others might have enjoyed. These financial limitations were apparently because his father was always sick after a work accident at age 40. He did not work again and continued with multiple health problems and hospital admissions until his death. His father supplemented his income by buying and selling second hand cars with the offender's uncle. The offender claimed a lonely childhood, without siblings. His father was ill and did not spend time with him, and his mother was busy caring for his father and did not spend time with him although he is close to her.
He is said to have often skipped school and would sit in the park on his own. He is said to have a disc problem at L1/2 and L2/3 leaving him with chronic back pain for the last three years. According to his education and employment history both in primary and high school his academic performance was average. He left at Year 11. There was a special teacher who looked after his mental health, which is not further described. I do not have any further material in relation to that. He has never worked. He has been his mother's full-time carer; of course at the same time he embarked upon this criminal enterprise acquiring and rebirthing jet skis.
He gave a history of symptoms of depression including a loss of weight from 125 kg to 94 kg. I have seen the offender in the witness box. At 125 kg I would venture the opinion that he would have been obese and at 94 kg at his height he would have been at least overweight. He is said to meet the criteria of a depressive disorder, severe, with recurrent episodes. This depends upon the reliability of the history given. I do not accept that up to the commission of these offences he was so burdened on the material that I have. He is said to have seen a psychologist twice in 2010, but ceased due to lack of funds. There was a school counsellor available to him throughout his school years. Psychometric testing is described.
He is said to have average intelligence without any cognitive impairments. He is assessed on the testing as having symptoms of depression, anxiety and stress at an extremely severe level; of course, this is well after the commission of the crime and with the sentencing proceedings imminent. He is assessed as having a low risk of recidivism and that is consistent with what is contained in the sentence assessment report. Ultimately, the psychologist offers the view in addition to the suggestion of the depressive disorder that he has anxiety symptoms, caregiver stress and stress from financial strain, and the current offence; that final part of the opinion I would accept without difficulty.
I have his letter of apology addressed to the Court. I accept the expressions of contrition and remorse therein, consistent with what he said to me in the witness box. He offers no excuse for his behaviour. He wishes to strive to be the best father he can for his child recently born in 2018, as I recall. He wants to make amends for what he has done and provide a more positive future.
I have a reference from Shaymaa Ismail. She has known the offender for ten years, married for one year. They met at TAFE where he was studying to become a mechanic. There is reference to the care that he provided to his mother. There are episodes of kindness that he demonstrated, described. He has increasing anxiety and concern that he might risk the birth of the child. The document is clearly written by someone who has great affection for him.
There is a document here from a general practitioner, Dr Alameddine, who speaks of his mother's limitations and impairments. She has a raft of medication, nine drugs in all. She is clearly someone in need of the care that her son, the offender, has been providing.
There is a radiological report describing the deterioration of his mother's lumbosacral spine. At levels L1/2, L2/3, L3/4, L4/5 and L5/S1 there is discopathy, a product of degenerative change. She has been afflicted with these limitations at least since 2014 and clearly it must be that she suffered from before then. The first report I have was written in 2013, the second in 2014.
I have a final report from a Dr Kaur, which is undated, confirming that the offender's wife is 26 weeks pregnant, but suffers the following medical issues; schizophrenia, bipolar, depression and anxiety, disc bulge with sciatica with medication to manage those conditions.
The circumstances of the offender, with the responsibility for the care of his mother and his wife are matters I bring to account, but they are not so exceptional that they enable him to avoid punishment. But the extent of his punishment must be informed by the challenges that are thereby created.
The Crown provided submissions in writing to which he spoke. He reminds me that the offender realised $13,000 from the first crime. Helpfully the Crown has provided me with comparisons and contrasts between this offender and the two offenders Ahmed and Mohamed Ghazzaoui. They faced one charge each but the activity upon which they engaged was more extensive. Ahmed facilitated the re-birthing of six jet skis over three years and Mohamed five jet skis over two and a half years; they were jointly involved in facilitating the re-birthing with the total proceeds of $28,500; their conduct was mostly administrative, not involving physical alterations to the skis; there was a great deal of correspondence between Ahmed Ghazzaoui and the co‑offender Katahie; no such correspondence between Mohamed Ghazzaoui and others; I determined their objective seriousness to be half way between low range and mid‑range consistent with what I've determined in this case; they each had a 25% discount for the utility of their pleas of guilty.
This offender's misconduct took place over about 14 months from December 2015 to January 2017; he facilitated the re-birth of one jet ski and unsuccessfully attempted to facilitate the re-birthing of two further jet skis; thus his misconduct was less extensive in time than the other two offenders. He had a more active role in the alteration of the first jet ski described in the facts relevant to count 1; no such activity was offered in respect of Ahmed and Mohamed Ghazzaoui; the offender directed another to steal to steal the second and third jet skis as I've described in the facts.
The Crown correctly submits that the line in s 5 Crime (Sentencing Procedure) Act was crossed but if I come to the view that the aggregate sentence is one that does not exceed three years, I could consider the imposition of an intensive corrections order as an appropriate option in this case. There is no need to refer to special circumstances, though I would, if I was imposing a sentence of imprisonment to be served, make a finding in those terms in light of the nature of this offence in contrast with the balance of his record and what I find to be his prospects of rehabilitation and the need for him to be in the community for an extended period under supervision to facilitate the rehabilitation process.
One point the Crown made in the course of his written submissions was with regard to s 25D Crimes (Sentencing Procedure) Act which would limit the discount to be applied for the pleas of guilty to 5%. In light of the debate that was undertaken today, the Crown concedes that that position does not apply to these proceedings and the discounts to which I have earlier referred will be applied.
Mr Karim on behalf of the offender has also provided written submissions consistent with what he had to say to me from the bar table; the line in s 5 Crimes (Sentencing Procedure) Act having been crossed is conceded but I am urged to the view that bringing together all of the relevant factors an intensive corrections order would be appropriate; that is available because the aggregate sentence could not in the circumstances exceed three years.
I have already spoken about the submission with regard to where the offences fall on the scale of objective gravity, particularly the offence with a standard non‑parole period. It is said that the offences did involve planning but lacked sophistication in that Mr Obeid did not hide his identity from the transactions performed. Perhaps the sophistication was limited by reason of that but these were planned and organised activities at the expense of the true owners of these crafts, and in the case of the very first one, at the expense of MM who was left out of pocket it would appear to the extent of $13,000 having paid for a vessel or a craft which was before then stolen and then re‑birthed and in due course seized by the police. It is one of the factors that is important in the assessment of this matter, as in all re-birthing activities, whether to do with motor vehicles or vessels, that there are two victims and perhaps three, namely the owner of the vehicle or vessel stolen, the insurance company called upon to indemnify the loss to that first victim, and then the second victim who is induced into a transaction in which they are acquiring the vessel or vehicle for value but without any title to be passed to them.
I am reminded of the extent to which the offender has taken steps towards rehabilitation by disassociating from his negative peers, disclosing his misconduct to family and friends, expressions of contrition and remorse, including to the psychologist, and that he has not committed any breach of bail, and he has not committed any further offences in the period of time waiting for this matter to come to court to be concluded. He has no other offences of dishonesty and I agree there is a degree of leniency therefore available to him.
S 3A Crimes (Sentencing Procedure) Act applies; all of the purposes of sentencing are engaged; general deterrence must be given appropriate weight, specific deterrence and the need to protect the community from the offender is of limited moment in this instance, but his conduct must be denounced, there must be a measure of punishment to be attached to what he has done. It is submitted that he has reached the cross roads for which the decision is R v Osenkowski (1982) 5 A Crim R 394 is often advanced, I am prepared to accept that his prospects for rehabilitation are good as I have indicated. Hardship to family to which Mr Karim spoke has already been addressed.
So I come to dispose of the matter. The offender is convicted of the three offences on the indictment and I have taken into account the Form 1 offence in the assessment of sentence for the offence in count 1; I will certify the Form 1 document.
In respect of count 1, following the discount of 20% to the sentence that I would have otherwise imposed, I indicate a sentence of imprisonment of 2 years and 2 months.
In respect of counts 2 and 3, respectively, I indicate a sentence of 1 year and 2 months, applying the discount of 25%. To the extent that there might have been the odd day left in the result of the application of the discount to the starting point, I have abandoned those for ease of expression.
I propose an aggregate sentence. The aggregate sentence to reflect the totality of the misconduct upon which he engaged is one of 2 years and 4 months.
I am satisfied that this is a case where the sentence can be served by way of an intensive correction order in the community.
I have had regard to the sentence assessment report and the findings by the Community Corrections officer. These are offences for which an intensive correction order is available.
I have had regard to s 66 Crimes (Sentencing Procedure) Act and noted that community safety must be the paramount consideration when a sentencing court is deciding whether to make an intensive correction order. I am also to assess whether making the order or serving the sentence by way of full-time detention is more likely to address his risk of reoffending. I am satisfied that the course I am proposing will better address such risk of reoffending as there might be, bearing in mind my finding that his prospects for rehabilitation are good. I have had regard to the provisions of s 3A Crimes (Sentencing Procedure) Act.
The sentence of 2 years and 4 months is to be served by way of an intensive correction order. The sentence shall commence today. As indicated in the sentence assessment report the offender must report to the Community Corrections Office at Bankstown within seven days of today.
The standard conditions must apply in accordance with s 73 Crimes (Sentencing Procedure) Act. The offender must not commit any offences during the term of the order and he must submit to the supervision by Community Corrections and I have already noted what the officers intend to do in the exercise of the powers that they now have under the regulations and the legislation.
Section 73A Crimes (Sentencing Procedure) Act provides for additional conditions. I have contemplated a home detention and a curfew condition in the alternative to that but I have ultimately decided against it in light of what I am proposing to do by way of community service.
I am going to require that the offender perform 200 hours of community service as a condition of the intensive correction order. I note that there is work available for him at the rate of 21 hours per month. It would seem to me that will be manageable upon the material I have and will not impede his obligations or his desires to provide the care required by his mother and his wife.
I shall leave the exhibits on file for 28 days or such other period as the parties might require.
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Decision last updated: 28 May 2019