defendant. Full-time custodial sentence imposed: aggregate sentence of 27 months imprisonment with aggregate non-parole period of 18 months, commencing 4 November 2022; Community Corrections Order revoked
Key principles
The maximum sentence of 14 years imprisonment for an offence under s 197(1)(b) of the Crimes Act 1900 (NSW) represents Parliament's attitude to the seriousness of the offending...
Where an offender is already serving sentences of imprisonment, questions of concurrency, accumulation and totality must be considered in determining the commencement date of a...
Parity as a sentencing principle is enlivened where co-offenders have indistinguishable roles in the commission of an offence, notwithstanding differences in age and criminal...
A difference in age between co-offenders (29 years versus 20 years) where both are adults is not a material basis for distinguishing between their offending for the purpose of...
Issues before the court
Whether parity is enlivened as between the offender and his brother, Tariq Zreika, who received a two-year Intensive Corrections Order in the Local...
Plain English Summary
Moustaffa Zreika was sentenced to 27 months in prison (with 18 months non-parole) for helping set fire to a dress shop as part of an insurance fraud. His younger brother, who did the same thing, got a lighter sentence of home detention because he wasn't already in prison. The judge said this difference was fair because the older brother had a worse criminal record and was already serving time for other serious crimes. The judge also gave him a shorter non-parole period than usual because it was his first time in prison and he has mental health issues that make prison harder for him. The sentence starts in November 2022, partly overlapping with his existing sentence for dangerous driving.
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Judgment (2 paragraphs)
[1]
Judgment
The Offender appears before the Court today for sentence in relation to a single charge under section 197(1)(b) of the Crimes Act 1900 NSW. That offence relates to a person who dishonestly for gain destroys or damages property caused by fire or explosives.
The maximum sentence is 14 years imprisonment. There is no standard non-parole period.
Whether the offender's psychiatric conditions (adjustment disorder with mixed anxiety and depressed mood, stimulant use disorder in remission)...
Whether the offender's guilty plea demonstrates remorse and warrants a 25% discount
How to determine the commencement date of the new sentence given existing custodial sentences for dangerous driving and assault occasioning actual...
Cited legislation
No linked legislation citations have been extracted yet.
The maximum sentence represents the Parliament's attitude to the seriousness of the offending, and also provides a guideline for sentencing judges as to an appropriate sentence outcome, after considering the objective seriousness of the offending and the Offender's subjective case.
The offence was committed on 2 November 2018, and the Offender was arrested on 3 May 2019. He has been in custody since the date of arrest, being a period of 1 year and 10 days. On 4 June 2019, he commenced serving a sentence in respect of an unrelated matter. In respect of that matter he was sentenced to a period of imprisonment with a non-parole period of four years commencing 4 June 2019 expiring 3 June 2023 with a balance of term of two years, expiring 3 June 2025. It will be necessary to consider questions of concurrency, accumulation and totality in determining the commencement date in the sentence in the present matter.
The other issue which arises, and is in dispute between the Parties, is whether questions of parity are enlivened as between the Offender and his brother, Tariq Zreika (the Co-Offender). The Co-Offender's matter remained in the Local Court. He received what might be considered as a relatively light sentence of a two year Intensive Corrections Order with conditions of drug abstinence and 400 hours of community service.
There is a second co-Offender, Ms Alameddine, who has pleaded not guilty and awaits trial. Her involvement, however, was quite different to that of the Offender and his brother, as will be made plain from the Agreed Facts.
At the time of the subject offending, the Offender was on bail in respect of the matter for which he was subsequently sentenced (H ending 923) and also subject to a Community Corrections Order for destroy/damage property, imposed at Blacktown Local Court on 5 October 2018.
The Charge Certificate indicates that the Offender was charged with three offences arising out of the subject offending, with sequences two and three being withdrawn in the local Court. There are no matters on a Form 1 or a section 166 Certificate.
Included in Exhibit A was a Statement of Agreed Facts on sentence. Whilst the document has been signed by the Crown, it has not been signed by the Offender, however, the following facts represent the basis upon which the Offender is to be sentenced.
The Offender was born on 8 April 1989. His Co-Offender was born on 6 February 1998.
Ms Alameddine was the owner of a business called "OMT Formal Boutique" which specialised in the rental of second-hand formal and wedding dresses, as well as the sale of second-hand wedding dresses. The store was located at shop 5, 283 Woodville Road, Guilford. At this location there were a number of other shops occupying a block of some 1960 square metres.
Shops 5A, 5B, 5C and 5D were all leased to Ms Alameddine. Shops 5A, 5B and 5C could be accessed via internal doors. Shop 5D shared a common wall with shop 5C, however, was only accessible by external doors. The boutique was situated in shop 5C, and half of shop 5D was used for storage relating to the product in shop 5C.
There were no closed-circuit television cameras which covered shop 5D.
A witness, Ms Eda Inceol, began working for Ms Alameddine in another business known as "Lasertech Hair Removal", which was occupied shops 5A and 5B. That employment commenced in July 2018. Ms Inceol spent time outside of work with the Co-Offender. She called him "T". She knew the Co-Offender to be best friends with Alameddine's brother, Bilal. Ms Inceol had also met the Offender at their home in Carlingford.
In or around October 2018, Ms Alameddine began frequently complaining to Ms Inceol about not having money.
In the days preceding 2 November 2018, Ms Alameddine, Ms Inceol and Sherin Alameddine (a niece of Ms Alameddine) were at the OMT store. Ms Alameddine said:
"I'm thinking of pouring gasoline on the back side of the dresses and doing an insurance job. Eda can you go around the back and 'accidentally' drop your cigarette and light them up?"
Ms Inceol responded "No way. I don't want any more trouble". Sherin walked out and said "I don't want a bar of this". After Sherin left, Ms Alameddine asked Ms Inceol "do you know anyone who can do it then?". Ms Inceol said "the only one I know who is stupid enough to do it is T". Ms Alameddine said "give him my number and get him to call me. WhatsApp only but".
Sometime prior to 2 November 2018, an agreement was made between Ms Alameddine and the Zreika brothers, to the effect that the brothers would set fire to 5/283 Woodville Road in exchange for a sum of money.
At 9:06am on 2 November 2018, Ms Alameddine attended the OMT store and put a sign in the window shop 5B to advise customers that the store would be closed for the day, due to the air-conditioning being broken. Ms Alameddine retrieved several dresses from shop 5C, leaving the store through the door to shop 5B, and locking it.
At 4:04pm on 2 November 2018, Julie-Lee Nassar received a call from the Offender, her then-partner. The Offender asked Ms Nassar to give him a lift to Guilford, as he needed to see a friend. The Offender told Ms Nassar not to ask questions, and that he just needed her to take him.
Sometime after that call, Ms Nassar collected the Offender and his brother from Carlingford. The brothers were wearing jumpers and track pants.
Ms Nassar drove the Zreika brothers to the 7/11 service station on Victoria Road, North Parramatta. The men went into the service station and purchased kerosene before returning to the car. Records obtained from the service station demonstrated that four 1 litre bottles of kerosene were sold on 2 November 2018.
The Offender sat in the front passenger seat, next to Ms Nassar and the co-Offender sat in the back with the bags. They asked to be driven to "Chickenlicious" at 6/283 Woodville Road, Guildford, so they could meet their friend.
The brothers told Ms Nassar to park the car in Osgood Street, Guildford, and wait. They told her that they would not be long. The men then got out of the car with the bags from 7/11. About seven minutes later, the men ran back to the car, carrying the bags with empty bottles in them. When they got into the car, Ms Nassar noticed that they smelt of petrol or kerosene. They told Ms Nassar to drive. Ms Nassar asked "what the hell is that smell?". The men replied that they just had to see a friend and again told Ms Nassar to drive. The men then asked Ms Nassar to turn left onto Woodville Road. They then directed her to turn right into McArthur Street, do a U-turn and then turn left back onto Woodville Road. Ms Nassar could see smoke coming out of the shop closest to Osgood Street. She noticed that the men were looking in the direction of the shop.
Ms Nassar then drove them to Parramatta Park. The men still refused to answer any of Ms Nassar's questions about what had happened. Ms Nassar then drove the men home.
The day after the fire, Ms Alameddine called Ms Inceol and told her to tell "the boys" to stop calling her because she was with the police and they would get their money very soon. Ms Inceol believed that Ms Alameddine was going to pay the men $5,000 - $10,000.
Closed-circuit television footage from 283 Woodville Road on 2 November 2018 showed a male wearing a black hooded jumper, black track pants, a white T-shirt and white runners approaching the doors of shop 5B at 6:31pm and attempt to open the door. The male then looked towards shop 5D and turned right to the Osgood Street side of the premises (off-camera). The male was not seen again. Smoke began to appear in shop 5C (visible on the internal closed-circuit television camera) at 6:39pm.
Several witnesses from nearby residences and shops saw two men in hooded jumpers and tracksuit pants going into or running from the shop at around the time of the fire. A witness heard crashing sounds coming from within the store. A number of witnesses reported seeing smoke coming from the store and contacted emergency services.
Police arrived quickly on scene, followed by the fire brigade. Officers of Fire and Rescue entered the store from the Osgood street entrance, where they found that the door was closed but not locked. Entry into shop 5C was forced open to check for fire spread, however none was found.
The fire in shop 5D was extinguished very quickly. Officer Richardson was one of the first to enter the building and noted a strong fuel smell inside, similar to that of kerosene. He also found that a number of shelving units had been pulled over within the store. He located a cigarette lighter on the floor inside the building.
A dark-coloured glove was located on the grass outside the Osgood Street entry to shop 5D. The glove was forensically examined, and a mixed DNA profile was found on a trace swab of the internal front wrist area of the glove. The Offender could not be excluded as a contributor to this DNA profile.
A field test was conducted at marker "B" at the entry to shop 5D. The Forensic and Analytical Science Service received a sealed brown paper bag containing a piece of slightly soiled white absorbent material in a metal can with a plastic bag. The results of the examination demonstrated a heavy petroleum distillate in the content of this item. Such distillates can be found in fuels such as kerosene.
Ms Alameddine provided a statement to police on the evening of the fire, and estimated that the value of the dresses in the store at the time was approximately $100,000 - $200,000.
On 3 November 2018, Ms Alameddine reported the fire to her insurance company. The claim submitted for shop 5D was for $200,000, shops 5B and 5C were for $150,000 - $200,000 and for shop A claim of $7,000 was submitted due to smoke damage. Within a week of the fire, the insurance company arranged for restorative works to be conducted at the premises. The cost of initial works totalled $180,519.
On 3 May 2019, the Offender was arrested at his home in Merrylands. A search warrant was conducted at the premises and a number of items seized, including a pair of shoes which appeared to have a visible burn mark on them. The Offender was taken to Granville police station where he participated in an electronically recorded interview, during which he denied knowing Ms Alameddine, and denied any involvement in the offending.
The Co-Offender was arrested at his home in Carlingford on Friday 3 May 2019 and taken to Granville police station. He participated in an electronically recorded interview, during which he also denied knowing Ms Alameddine and denied any involvement in the offending.
Ms Alameddine was arrested at her home at Dundas Valley on 3 May 2019. She declined to participate in an electronically recorded interview with the police.
Those are the Agreed Facts.
Also forming part of Exhibit A was the Offender's criminal record. The record includes dangerous driving offences committed on 22 July 2017, for which the Offender received a term of imprisonment of six years, with a non-parole period of four years. It also includes two counts of the offences of destroy or damage property (domestic violence), in respect of which the Offender received a fine, was ordered to pay compensation and subjected to a community corrections order for 12 months commencing 5 October 2018. On 6 February 2019, the Offender committed further offences, being assault occasioning actual bodily harm (domestic violence) and contravening an apprehended violence order. For those offences he was imprisoned for a period of 12 months, commencing 4 November 2019, and with a non-parole period of nine months, expiring 3 August 2020.
Documents produced by Corrective Services indicate that, whilst in custody, the Offender has come to the attention of the authorities on two occasions. The first occasion was for possessing tobacco, and on another occasion for possessing a drug.
A Sentencing Assessment Report dated 14 April 2020 was prepared by Lisa Hemmy of Lithgow Community Corrections Office. In preparation of that report, the author conducted an interview with the Offender, had contact with the Offender's mother and his auntie, and also referenced the Agreed Facts, criminal history and Corrective Services records.
The Offender seems well supported by family who regularly visit him in custody. It is said that upon release from prison he will return to his parents' home in Carlingford. The report also provided an insight into the Offender's occupational background. He is a qualified carpenter and has owned and worked in his own construction business since 2010. He plans to return to working in the construction business when released from custody.
Under the heading "Attitudes" is information concerning the subject offending. Despite pleading guilty to the charge, the Offender claims to have no knowledge of the offences, stating that he could not remember what happened that day. He claimed that his ex-partner, Ms Nassar, was lying about his involvement. The author of the report concluded that the Offender had no insight into his behaviour at the time of the offending, as he claimed that he did not remember being there due to being affected by cocaine.
The author of the report took a history of substance abuse, comprising daily cocaine use from 2014. In 2015, the Offender attended a drug rehabilitation centre where he said he ceased drug use. According to the history provided by the Offender, he commenced using cocaine daily approximately two weeks prior to the subject offending. The Offender claimed to have been using cocaine on the day of the offence and, due to his drug use, was unable to remember the offending.
In considering the Offender's insight into the impact of his offending, the Offender denied knowledge of the offence, stating that he was unsure whether he took part in the offending, and was therefore unable to comprehend any impact that the offending had caused.
The Community Corrections Officer assessed the risk of reoffending by reference to LSI-R as being medium.
Also forming part of Exhibit A, the Crown bundle, were the remarks on sentence by Judge Burke SC in relation to the dangerous driving occasioning death charges, for which the Offender was sentenced to a period of imprisonment of six years, with a non-parole period of four years. There was a suggestion that, at the time of the driving offences, the Offender was affected by diazepam and cocaine. It would appear that the evidence was unclear, resulting in the sentencing Judge concluding that neither of those drugs contributed to the dangerous driving or to the accident. The use of cocaine at around the time of that offending, however, would be at odds with the history provided to the Community Corrections Officer for the Sentencing Assessment Report in this matter.
I was also provided with a copy of the Sentencing Assessment Report for the co-Offender. Like his brother, the Offender, described a close family environment and a similar occupational history commencing in carpentry. Unlike his brother, however, the co-Offender had no prior criminal history. Like his brother, the co-Offender attributed his offending to his addiction to cocaine at the time. He said that his recollection of his offending behaviour was limited. The co-Offender expressed a willingness to undertake intervention by way of counselling, as well as to engage in community service work. Unlike his brother, his risk of reoffending was assessed to be medium-low.
The co-Offender's criminal history identified a number of relatively trivial driving offences, using offensive language, possessing a prohibited drug and being custody of a knife in a public place. This criminal history is less extensive than that of the Offender.
A Defence Bundle on Sentence was tendered on behalf of the Offender and marked Exhibit 1. It included an outline of submissions, to which I will refer in due course, together with a character reference and a number of medical reports.
The character reference was provided by the Offender's mother and is dated 29 April 2020. She acknowledged the serious nature of her son's offending and the sadness which that had caused her. She claimed that she knew that her son was remorseful for the subject offending, which is somewhat at odds with what the Offender himself said to the author of the Sentencing Assessment Report. Mrs Zreika wrote of the hardship suffered by the fact that family cannot visit the Offender in prison as a result of the current pandemic. She also referred to a diagnosis of breast cancer made on 5 April 2020. She was told they needed to operate immediately. She went in for emergency surgery followed by six weeks of radiation treatment. The Offender's mother expressed confidence that when her son is released back into the community "he will change his ways".
The medical material included in Exhibit 1 confirmed the history provided by Mrs Zreika about the cancer diagnosis and treatment.
Tendered separately was a report by Kris North dated 25 July 2019 (Exhibit 2). He assessed the Offender over the course of a two hour interview on 19 July 2019. The report was prepared for sentence in relation to the driving offences, for which he is presently in custody. Mr North had access to a number of reports which are not before the Court, namely reports by Professor Somerville, neurologist (24 March and 14 May 2019), and Dr Dowla, also a neurologist (12 October 2017). Mr North took a history consistent with other material, including a stable upbringing and employment. The Offender disclosed a history of addictive behaviours, including gambling and substance use issues. There was also reference to a seizure disorder (epilepsy) which caused a motor vehicle accident, in which the Offender suffered a number of injuries, including a back injury.
The Offender was married between the ages of 22 and 24, with the relationship subsequently breaking down due to gambling addiction. Upon assessment of the Offender's mental state, Mr North was unable to detect any indicators of mood, sensory, perceptual or thought disturbance. Testing demonstrated mild anxiety symptoms and severe depressive symptoms. Testing using the LSI-R indicated that the Offender presented with a low risk of reoffending.
Mr North diagnosed an adjustment disorder with mixed anxiety and depressed mood, a disorder characterised by emotional and/or behavioural impairments associated with an identifiable stressor. Mr North considered that the condition arose after the motor vehicle accident relating to the sentence currently being served, and expected that the symptoms would subside once legal matters are finalised. He also diagnosed a stimulant use disorder (cocaine) in remission.
Commencing at paragraph 32 of his report, Mr North made a number of recommendations in relation to treatment programs which should be undertaken by the Offender whilst in custody. A copy of the report by Mr North psychologist should accompany the Offender's Warrant of Commitment, and be drawn to the attention of Justice Health.
Both the Crown and the Offender have submitted an outline of Written Submissions on Sentence. The Crown conceded that the Offender was entitled to a discount of 25% on account of his early guilty plea.
After a recitation of the facts, regarding the Offender's conduct, the Crown conceded that "this is a less sophisticated example of offences which may otherwise be contemplated by this section". It nevertheless submitted that the offending was serious in nature. In terms of objective seriousness, the Crown submitted that it falls at or slightly below the mid-range for offences of this kind. I agree with that assessment for reasons which will be provided.
After referring to the Offender's criminal history, the Crown submitted that the convictions were such that they disentitled the Offender to any leniency that the Court might otherwise have afforded to him. It was submitted that his criminal history informs the risk of reoffending and prospects of rehabilitation, but otherwise does not aggravate the offending. I also accept that submission.
Whilst the Crown acknowledged that the offending was committed in company, it was submitted that this factor does not aggravate the offending to any significant extent, "given the circumstances of the offending".
The Crown, however, does rely upon the fact that the Offender was on conditional liberty at the time of the offending as being a significant aggravating factor. I accept that this is a statutory aggravating factor.
In terms of the criminal activity being planned or organised, the Crown quite fairly conceded that the planning did not go beyond that which ordinarily would be expected for offences of this type. I accept that submission.
Finally, in terms of aggravating factors, the Crown did not submit that the Court ought to find that the offence was committed for financial gain, as that is an element of the offence and doing so would be double counting. I accept that submission.
In relation to remorse, the Crown submitted that the Offender has shown no remorse in respect of the offending other than his guilty plea. Such a plea must also be assessed in the face of the strength of the Crown case, which I consider to be powerful. The Crown referred to what was said by the Offender in the Sentencing Assessment Report in which he denied knowledge of the offending stating he could not remember what had happened that day. He claimed that he did not remember being there as he was affected by cocaine. This assertion is somewhat at odds with the claim that his ex-partner was lying about his involvement. In addition, the Offender said that he was unable to comprehend any impact that the offending had caused.
In relation to the diagnoses made by Mr North, the Crown submitted that there is no evidence of any causal connection between those conditions and the subject offending, such that his moral culpability would be reduced in any way. I agree. Quite fairly, the Crown submitted that the medical conditions from which the Offender suffers might give rise to a finding of special circumstances. I also agree with that submission.
It was further submitted by the Crown that, given the lack of insight and remorse, the Court would be "guarded" as to the Offender's prospects of successful rehabilitation and the risk of reoffending. The Crown relied upon the opinion of the author of the Sentencing Assessment Report that the Offender presented a medium risk of reoffending.
In relation to the questions of commencement date, accumulation and totality, the Crown submitted that the Offender is presently serving sentences of imprisonment for two separate sets of serious matters, involving three separate victims, and committed on separate occasions. It was submitted that there should be some degree of accumulation for the present matter upon the sentences the Offender is already serving. I did not understand counsel for the Offender to submit to the contrary.
The Crown submissions on the question of parity are puzzling. It was submitted that "parity is not a live issue in this sentencing exercise". The question of parity would, however, seem to arise as between the Offender and his brother. Plainly, as Ms Alameddine is yet to be sentenced, parity does not arise. In any event, her involvement in the offending was quite different to that of the current Offender. The Offender's brother, however, is in a different category. I note that the Crown says that their roles were "indistinguishable", but nevertheless submitted that parity does not arise.
The Crown relied upon three factors as justifying that conclusion. First, it was said that there is a disparity in age between the Co-Offenders. The Offender was 29 years of age and his brother just 20 years old. Secondly, it was submitted that the Offender had committed significantly more serious matters prior to the present offences than his brother. Thirdly, it was submitted parity does not arise as the Offender is presently serving two lengthy periods of full-time imprisonment, and will first be eligible for a parole on 4 June 2023.
It was further submitted that a different sentence between the brothers would not give rise to a justifiable sense of grievance. With respect, I cannot accept that submission.
The Crown made some submissions about the outcome of the call up for the Community Corrections Order, to which I will refer later.
The Crown's ultimate submission was that the section 5 threshold had been crossed, but did not wish to be heard against a finding of special circumstances, given that this is the Offender's first time in custody and that there is a need for supervision over an extended period on parole.
The Court was also assisted by written submissions filed on behalf of the Offender. It was submitted there ought to be a reduction in sentence given the early guilty plea of 25%. I accept that submission and will make the reduction. It is further submitted that the plea "is also capable of demonstrating remorse and contrition". Whilst that generally may be the case, I have some difficulty with that submission given the comments made to Community Corrections about his insight into the offending, and the allegation that his ex-girlfriend was lying about his involvement. Nevertheless, a plea of guilty is a statutory factor in mitigation.
It was submitted that in determining the seriousness of the offending, the Court would have regard to numerous factors including the maximum penalty, the factual circumstances, the role played by the Offender, any relevant statutory aggravating or mitigating factors, and general common law principles. In respect of the latter, Counsel for the Offender referred to the extent of the damage caused, the potential risk of injury to others, the possible spread of any fire and motive as being relevant considerations.
In assessing the seriousness of the offending, Counsel for the Offender attempted to diminish the role played by the Offender with that of his brother. Counsel referred to the brother as being "the prime mover of the offence". This appears to be put on the basis that the Offender was not involved until after his brother was contacted by Ms Alameddine. With respect, I do not see this as a point of material distinction.
On behalf of the Offender, it was submitted that the planning was limited and unsophisticated. I accept that submission. It was also submitted that there was no evidence that the Offender took a direct part in any action related to the fire. I do not accept that submission. It would appear from the Agreed Facts that the Offender was involved in all material acts leading to the lighting of the fire. Given that both the Offender and his brother failed to provide any information as to their respective roles, I accept the Crown submission that their conduct is indistinguishable.
In terms of objective seriousness, it was submitted in behalf of the Offender that the role of the Offender "falls below the middle range of seriousness and towards the lower end". I assume that by those words, counsel is suggesting that it is below the mid-range and towards the lower end of the mid-range. The Offender's submission in this regard is not dissimilar to that advanced on behalf of the Crown.
Having considered the circumstances of the offending, the objective statutory aggravating factors of being in company, and on conditional liberty, the statutory mitigating factors of a plea of guilty, and the absence of any evidence as to the potential risk of injury to others or the possible spread of the fire, I find that the objective gravity of the offending falls just below the mid-range.
With respect to the question of parity, I accept the submissions advanced on behalf of the Offender. That is, I consider that parity is indeed a live issue. There are few real points of distinction between the Offender and his brother. First, the Offender was nine years older than his brother. They were both adults and I do not consider this to be a material basis for distinguishing between the offending. The second is the criminal record of the Offender, which would warrant a slightly harsher sentence, as specific deterrence becomes relevant. In terms of their roles leading up to the offending, I do not accept the submission on behalf of the Offender that his brother was more culpable, simply because he was the point of contact with Ms Alameddine. If one considers all of the pre-offending behaviour of the co-Offenders then they would also include the fact that the current Offender arranged transport to the place where the offending was committed, and jointly engaged in the purchase of kerosene in order to commit the offence.
In the case of the co-Offender, it was found that the section 5 threshold was crossed. Likewise, I find in the present case that no sentence other than imprisonment is appropriate. The co-Offender was sentenced to a 2 year Intensive Corrections Order which, after a 25% reduction for his guilty plea, came to two years. Additional conditions of drug abstinence and 400 hours of community service were imposed. Plainly, an Intensive Corrections Order is not available as a sentence outcome in the present matter, given that the Offender is already in custody. In such circumstances, I have no option but to impose a custodial sentence reflecting the objective seriousness of the offending and the minor disparity between the Offender and co-Offender. I am satisfied that the sentence to be imposed upon the Offender will not give rise to a sense of grievance, justifiable or otherwise.
The Crown provided the JIRS statistics for this offence, which is populated by just six cases. For cases involving a guilty plea, the average head sentence was within the order of four years, and the average non-parole period was about two years. In my opinion, the population of the cases which inform those statistics is so low that they are of limited and little value. In any event, questions of parity in the present case require a sentence less than the average effective sentence indicated by those statistics.
The Offender also must be sentenced in relation to the destroy/damage property charge (H 6854 4246) for which he was sentenced to a Community Corrections Order at the Blacktown Local Court on 5 October 2018. That order was in place at the time of the subject offending and breached by it. Therefore, the Community Corrections Order is to be revoked and the Offender is to be resentenced in respect of that offence.
In respect of the conduct giving rise to the Community Corrections Order, both Parties submitted that it was at the low end of objective seriousness. Having considered the facts included in Exhibit A, I accept that assessment. In determining sentence I have had regard to the fact that a community-based order was first imposed and then breached. In resentencing the Offender I find that no sentence other than imprisonment is appropriate. As the Offender is in custody and will be for some time, an Intensive Corrections Order is not available, leaving as the only option a short period of imprisonment in a custodial setting.
In relation to both offences, I have had regard to the purposes for sentencing set out in section 3A of the Crimes (Sentencing Procedure) Act 1999 NSW. Apart from ensuring that the sentence to be imposed is adequate, it will also achieve the purpose of general and specific deterrence. It will also encourage the rehabilitation of the Offender, so as to reduce the risk of reoffending.
I intend to impose an aggregate sentence in respect of the two matters for sentence. I provide indicative sentences as follows:
1. in respect of the offence of dishonestly for gain damage property by fire in breach of section 197(1)(b) of the Crimes Act 1900 I would have imposed a sentence of 27 months, after a discount of 25%;
2. in respect of the destroy/damage property offence I would have imposed a sentence of three months imprisonment, after a discount of 25%.
I intend to impose an aggregate sentence of imprisonment of 27 months. I find special circumstances on the following bases:
1. this is the Offender's first time in custody; and
2. the Offender suffers from a number of psychiatric conditions which will make his time in custody more harsh than for other prisoners; and
3. the Offender would benefit from a longer period on parole in order to undertake rehabilitation and receive treatment which, together, will hopefully reduce the risk of reoffending.
I will impose an aggregate non-parole period of 18 months.
The question which remains is the commencement date. Whilst I accept that there should be some degree of concurrency, there must also be accumulation to represent the distinct and quite separate forms of the offending. For this purpose, I have left to one side the period of imprisonment in respect of the charge of assault occasioning actual bodily harm and contravening an Apprehended Domestic Violence Order, the non-parole period of which will expire on 3 August 2020.
This leaves the sentence for the dangerous driving offences. The non-parole period for which is four years and will expire on 3 June 2023 at which time the Offender will be eligible to be released on parole. In my opinion, in order not to offend the principle of totality, the sentence in respect of the present matter must commence prior to that date. At the same time, it must not commence so early that the Offender receives a discount for multiple offences. I propose that the present sentence commence six months prior to the date of expiration of the non-parole period. That is on 4 December 2022. The Offender spent one month in custody solely due to the subject offending so the date of commencement will be 4 November 2022.
Mr Zreika you are convicted of the offence of dishonestly, with a view to making a gain, destroy or damage property by means of fire in breach of section 197(1)(b) of the Crimes Act 1900 NSW.
Further, in respect of the offence for which you have already being convicted of destroy/damage property, I call-up and revoke the Community Corrections Order.
In respect of both offences, I impose an aggregate sentence of 27 months, with an aggregate non-parole period of 18 months.
The sentence will commence on 4 November 2022. The aggregate non-parole period will expire on 3 May 2024. The balance of sentence will expire on 3 February 2025.
Your earliest release date is 3 May 2024.
I direct that a copy of the report by Mr North, psychologist, accompany the Offender's Warrant of Commitment and be drawn to the attention of Justice Health.
[2]
I certify that the previous 95 paragraphs are the reasons for Remarks on Sentence of his Honour Judge D Wilson SC
Associate
James Bailey
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: 12 May 2020
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Zreika
AI Analysis
Outcomedefendant
Disposition:
Full-time custodial sentence imposed: aggregate sentence of 27 months imprisonment with aggregate non-parole period of 18 months, commencing 4 November 2022; Community Corrections Order revoked