Regina v Elhalabi [2001] NSWCCA 516 | Case summary

Judgment 1 MASON P: I agree with McClellan J. 2 SULLY J: I agree with McClellan J. 3 McCLELLAN J: The applicant, Patrick Elhalabi seeks leave to appeal against the severity of the sentence imposed on him by Backhouse DCJ. The applicant pleaded guilty to a charge of detaining a person for advantage contrary to s 90A of the Crimes Act 1900. As the victim was not physically injured the maximum penalty was fourteen years full time imprisonment. Her Honour imposed a term of imprisonment of three years full time custody and provided a non-parole period of fifteen months. 4 The offence was committed when a plan was conceived by Zhihang Li, Ping Fai Chin and Remi Chui to kidnap and ransom a wealthy Chinese student, Victor Liu. 5 The victim was abducted on 20 May 2000 from his home at Lurline Bay and held for ransom. He was rescued by police on 26 May 2000. 6 The facts before the sentencing judge indicated that Zhihang Li had worked as a cleaner at the home of the victim. He told another two accomplices, Remi Chui and Ping Fai Chin, of the victim's wealth and situation. An agreement was made between those three to kidnap the victim for the purpose of obtaining a ransom of AUS$8 million. It was not alleged that the applicant was aware of the existence of the ransom demand before it was published in the newspapers. 7 Chui's part of the arrangement was to recruit the "staff" necessary to carry out the abduction of the victim. He contacted Jose Angeles, who has also appealed against the severity of his sentence, who agreed to recruit other people. Angeles in turn contacted the applicant and Jeff Mendoza. 8 The applicant was asked to participate in the kidnapping about one month before it occurred. Angeles told the applicant that "it was something big", a kidnapping and he would be paid well - $1,000. The applicant's job was to drive a car to the kidnap and back. He was told by Angeles that it was an inside job, to be done by Li who was the cleaner at the house. 9 There were some conversations between the various participants, including the applicant, during the weeks preceding the kidnapping. Before the day of the kidnapping the applicant had been shown the victim's house. 10 On the day of the kidnapping, the applicant drove his mother's car, a red Ford TX5. The number plates had been changed by Tyrell August, another member of the group, and they were changed again when they returned. They picked up Li, the cleaner from Hurstville and drove to the victim's house. The applicant did not know exactly what the accomplices were going to do, but he did know that they were there to kidnap the victim. 11 The participants met at Maroubra Beach car park where they worked out the details of the kidnapping. 12 At this meeting each participant's duties were decided - August would tape the victim; Steve Vivero would threaten the victim with a gun which was loaded and Mendoza would act as lookout and be in contact with the applicant, who would drive the car which would carry the victim. 13 When questioned by the police, the applicant gave a lengthy and false description of the accomplices in his car. After some prodding, he admitted that "Jeff and Steve" were two of the other three males in the car with him and the "curly haired guy was August." He lied initially when asked about the identity of these people because "I just didn't want to dob them in." The person in the front was Jeff (Mendoza) and the person in the rear seat behind the driver was Tyrell (August). Steve (Vivero) had the gun. 14 The applicant dropped Mendoza, August and Vivero twenty metres away from the victim's house and Mendoza established contact with the applicant on their mobile phones. 15 Shortly after 3 pm on 20 May 2000, Vivero knocked on the victim's door. He was confronted by the applicant, Vivero and August. 16 Vivero placed the gun against the victim's temple, to force him onto the floor, and August tied the victim up with tape. Mendoza was present when the victim opened the door and was present after he was taped up. August and Vivero picked up the victim and carried him into the garage. Mendoza joined them in the garage and pushed the button to open the automatic garage door. Whilst they waited for the door to open, Mendoza and the other participants stood behind the other cars in the garage. When he got the signal, the applicant reversed into the garage and the victim was bundled into the boot of the applicant's car which was left open for that purpose. At that point, one of the offender's told the victim: "If you shout, I'll kill ya". As they drove away, one of the persons in the car communicated by mobile phone with the offenders in the other car. 17 The applicant drove the car back to Penshurst. He reversed into the driveway and the accomplices pulled the victim out of the car - they had placed tape around his eyes and bound his hands. The three men in his car left. 18 After the kidnapping, the applicant fetched food for the accomplices. He was observed by police going to and from the house at Penshurst. However, it is not alleged that the applicant had any involvement in the ransom demands although he was aware that Chin talked to the victim on the phone. Chin, Li and Chui kept the fact of the ransom demand of millions of dollars a secret from the applicant and his peers. 19 The victim was taken to a room within a house at Penshurst. When the victim first arrived he was told by Chin that: "I know you are not going to move because I have got this and I know you don't have the guts to move." Chin then put "what felt like a gun into (the victim's shoulder) and pressed it in." The victim was blindfolded at the time and could not see a gun. 20 The victim's mother had contacted the police. Police did a canvass of the area and discovered that, whilst the accomplices had the victim under surveillance prior to the abduction, they had come under the notice of some of the victim's neighbours who took down the relevant motor vehicle registration numbers. Using this information, the police were able to conduct surveillance on the accomplices which finally led them to the house where the victim was being held captive. 21 Between 20 and 26 May 2000, Chin, in concert with Li and Chui, made seven telephone calls to the victim's mother and one of his relatives, making demands for the ransom for the return of her son. In the first call on 21 May 2000, Chin told the relative: "Tell his mother I want to see AUS$8 million within three days. Then she can see her son." 22 On 24 May 2000, the victim called his mother, and at the request of the accomplices (not including the applicant), encouraged his mother not to contact the police and to arrange the ransom, telling his mother "I want go home very much. Have you arranged enough money? … You don't report it to police. All you have to do is give them the money." The accomplices confirmed this telling his mother: "If you report to the police, you doom yourself … if you report to the police you will never see your son again." In subsequent telephone conversations, Chin, Li and Chui reduced the ransom demand to AUS$3 million and then to AUS$1.5 million. At the same time police were continuing surveillance and secretly taping the ransom demands by lawful telephone warrant. 23 Finally, on the afternoon of 26 May 2000, the house at Penshurst was surrounded by police. At that time only Li and Chin were in the house with the victim. 24 When the police announced their presence, Chin pressed a gun against the victim's neck and asked if his mother had called the police. He later moved the victim and pressed a gun all over his body and told the police "I want to live here, I don't want to go to gaol." 25 The police finally negotiated the release of the victim at approximately 6.15 pm on 26 May 2000. During the period of captivity, the victim was provided with food, water, clothing and blankets. Apart from bruising to his groin and being very stressed by the incident, the victim was not harmed physically. 26 The applicant's father contacted the police and arranged to meet with them at Blacktown Police station at 2.15 pm on 29 May 2001. The applicant was interviewed by the police that afternoon. He made clear admissions in the ERISP although, as I have indicated, he initially tried to protect the true identity of his accomplices. 27 The applicant submits that the sentence imposed on him when compared with the sentences imposed on August and Mendoza demonstrates a lack of parity in sentence that creates a "justifiable sense of grievance". Lowe v The Queen (1984) 154 CLR 606. It is submitted this Court should exercise its discretion and intervene. The fundamental complaint is that because the others received the lesser penalty of periodic detention the sentencing discretion with respect to the applicant miscarried. 28 By the time the applicant was sentenced August had been sentenced. Mendoza was not sentenced until after the applicant. August was sentenced by Kinchington DCJ following a trial. At an early time he had admitted his involvement in the kidnapping and pleaded guilty. However, he later changed his plea and defended the matter alleging he had acted under duress. 29 When sentencing August Kinchington DCJ was significantly influenced by the fact that August had already spent nine months in custody on remand awaiting trial. He said: I now turn to a consideration of the sentence that I must subject you to. I think that I can distinguish your case from Chin's case. As I said earlier he was one of the principals involved in this criminal enterprise. You on the other hand I would describe as a foot soldier. While the part that you played in that criminal enterprise was important to its success, it was dictated to by others. In other words you followed the leader. It is clear from the material that has been placed before me being that you declined to have anything to do with the pistol but you volunteered to be the person who would secure Victor Liu before he was taken and placed in the boot of the car and ultimately taken to the Penshurst premises. Without your help and cooperation and the help and cooperation of the others involved in that home invasion (because that is what it was) this criminal enterprise could not have been successfully completed. The fact that it did not result in any harm being done to your victim, the fact that it did not result in any money being obtained from your victim's family is to the credit of the police involved in the investigation of this matter. The crime of abduction or kidnapping is becoming far too prevalent in our society, both from a specific and a general deterrent point of view persons who are involved in this type of criminal activity must have it brought home to them that if they do and if they are caught they will be severely dealt with by this Court. As his Honour, Judge Shadbolt, did with the man Chin, what I propose in your case is to take into account the fact that you have already served some time in custody, according to my calculations it is just under nine months. It seems to me that you have had a taste of prison and that you should have learnt by now that prison is no place for a young man to be. I hope that you have learnt your lesson. Ordinarily I would have thought seriously of subjecting you to an overall term of imprisonment of some three and a half to four and a half years as it seems your criminal activity on this occasion would warrant such a sentence and to fix an appropriate non-parole period in relation to that sentence. However, bearing in mind that you have already been in custody for approximately nine months, it seems to me that I can deal with you as has been suggested by your counsel and sentence you to a term of imprisonment of three years and direct that that term be served by way of periodic detention. In effect that would mean and will equate to a head sentence of some three to four years and with a non-parole period of approximately fifteen to eighteen months. I say that because you have already served nine months full time custody and you will now be required to serve three years by way of periodic detention." 30 His Honour imposed a sentence of three years and directed that it be served by way of periodic detention. 31 Mendoza was sentenced by Backhouse DCJ, as of course was the applicant. When sentencing Mendoza, her Honour considered whether the sentence should be comparable with the sentence her Honour had imposed upon the applicant. Her Honour determined that it should not be, saying: "The assistance which has been given by the prisoner takes his sentencing out of the category where it would be appropriate to find that there was parity between his sentencing and that of Mr El-Halabi. I have taken into account all of the matters which the court is required to take into account under the section 23(2) of the Crimes (Sentencing Procedure) Act . I am satisfied that the assistance which he has given, and will continue to give because he has indicated that he will give evidence in the event of the person Chiu being arrested and brought to trial, is significant, having regard to the evaluation by Detective Schaefer of the assistance rendered and undertaken to be rendered. I also accept that the prisoner has been both truthful and reliable in the giving of information to the authorities. That can be seen in the case of Mr Angeles who has been dealt with by the Court, having changed his plea from one of not guilty to one of guilty. And also in the case of Mr Thomas, who I understand was arraigned before this Court today and will come to trial in due course. And the prisoner in this matter has indicated that he will give evidence if needs be in relation to the trial of Mr Thomas. That also reflects the timeliness of the assistance or the undertaking to assist. Detective Schaefer has indicated that the prisoner has not to the present time received any benefit by reason of his assistance. In turning to the question of whether he will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist. To some extent that depends upon the sentence that I impose, but in either case there would be some hardship to the prisoner, more so in the case of a custodial sentence where he would be at risk, albeit he would put in protected custody. Even in the case of periodic detention there would be at least some risk to the offender. Also there may be some risk, not only to Mr Mendoza himself, but to his family members. Detective Schaefer has described the offender Chiu as being a dangerous man and that is something which can be taken into account. Particularly in so far as the prisoner himself is concerned, albeit he is at liberty in terms of his living in fear with respect to reprisals. I have already indicated that Detective Schaefer thought it was unlikely that the prisoner would commit further offences after release." 32 Her Honour determined to impose a sentence of two years imprisonment which her Honour arrived at after considering Mendoza's plea, contrition and the assistance he had given to the authorities. Her Honour identified that assistance as being appropriately reflected in a discount of thirty-three and a third percent. Without identifying any particular reason for the decision, her Honour directed that Mendoza serve his sentence by periodic detention. 33 When sentencing the applicant her Honour firstly examined his role in the criminal enterprise. Her Honour concluded that although there were some differences the applicant's role should be seen as equal to that of Vivero, August, Angeles and Mendoza. Her Honour also had regard when sentencing the applicant, to his early plea of guilty and the limited cooperation and assistance he gave to the police. 34 Her Honour also considered that the applicant was entitled to consideration for his genuine remorse. However, when comparing any proposed sentence with that imposed on August, because of the circumstances surrounding the remand, her Honour did not "regard the sentencing by his Honour Judge Kinchington of the prisoner August as allowing for any basis for the court to come to the view that it was of assistance in the sentencing of the prisoner." 35 Her Honour correctly identified the fact that the offence of kidnapping is one of the most serious in the criminal calendar. It is an offence in which the need for general deterrence must prevail over any subjective matters. 36 The High Court authoritatively considered the role of parity when sentencing co-offenders in Lowe. Mason J said at 611: "Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community." 37 His Honour considered the role of an appellate court in the process and concluded that: "a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate." p 614. 38 Dawson J expressed the law in the following terms: "… the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done." 39 The discrepancy in that case was marked. The applicant received a sentence of six years with a non-parole period of two years, the co-offender was placed on probation for three years and required to perform 200 hours of community service. On appeal to the Court of Criminal Appeal the non-parole period was reduced to one year. 40 The majority of the High Court concluded that it was not an appropriate case for the intervention of the court. Mason and Brennan JJ however would have intervened and reduced the sentence to two years leaving the non-parole period of one year in place. 41 The fundamental complaint in the present case is that, whereas the applicant received a term of full time imprisonment, both August and Mendoza were directed to serve their sentences by periodic detention. It is submitted, in my opinion correctly, that consideration must be given to the total effect of the sentences imposed, Postiglione v R (1997) 189 CLR 295. 42 The Crimes (Sentencing Procedure) Act 1999 provides for the sentencing of offenders. A sentence of imprisonment cannot be imposed unless the court is satisfied that no other penalty other than imprisonment is appropriate (s 5). If a sentence of imprisonment has been imposed a court may make a periodic detention order (s 6). 43 It is well settled that a sentence of periodic detention is more lenient than a sentence of full time custody. The administrative arrangements relating to periodic detention were considered in R v Hallocoglu (1992) 29 NSWLR 67 and in ascertaining the true consequences of a sentence these matters must be taken into account Overall v R (1993) 71 A Crim R 170. 44 In the present case, I am not persuaded that the sentence imposed on the applicant was so different from that imposed on August, that it could be said to be lacking in parity and this Court should intervene. In my opinion the criminality of the applicant and August was relevantly comparable and although August participated in physically restraining the victim, the applicant drove the car in which, having been placed in the boot, the victim was carried. 45 For his part in the offence, August served nine months in full time custody and must serve a further three years by way of periodic detention. I doubt whether that penalty, even allowing for the manner in which periodic detention is administered, is significantly different from the minimum period of fifteen months full time detention which the applicant must serve. Certainly any difference would not justify the intervention of this Court. 46 Mendoza received a sentence which required him to serve a minimum period of twelve months by way of periodic detention. In my opinion although the term of the sentence was appropriate, because he is to serve his sentence by periodic detention, it is extremely lenient. Her Honour gave no reason as to why the sentence should be served in that manner, although it appears likely that she made this decision out of a concern for his safety, because of the assistance he rendered to the authorities. However, her Honour was of the view that Mendoza's assistance was such that in sentencing the applicant, parity with the sentence of Mendoza was not required. 47 I am satisfied that the assistance given by Mendoza was significant and required a different and more lenient sentence than that of the applicant. I accept that Mendoza's circumstances may have justified the leniency involved in an order for periodic detention although, for my own part, a term of full time imprisonment would have been appropriate. 48 However, I do not believe the applicant has, in the relevant sense, a "justifiable sense of grievance." The fact that a disparity exists does not alone justify the intervention of this Court. R v Pritchard & McDonald (unreported, NSWCCA, 22 April 1993) R v Stack (unreported, NSWCCA, 17 April 1997). I accept that the approach adopted by a majority of this Court in R v Diamond (unreported, 18 February 1993) does not justify the different sentences in this case for the sentence imposed on Mendoza was not "gravely inadequate". However the circumstances of Mendoza's cooperation are so markedly different from the circumstances of the applicant that, in my opinion, it cannot be said that justice has not been done. 49 I propose that leave to appeal be granted but the appeal dismissed. 50 During the hearing of this appeal, the court raised with counsel its concern that different members of the same criminal enterprise were sentenced, in this case, by three different judges. The explanation given suggested that there are administrative difficulties in arranging court lists so that the same judge is available to sentence each offender. If that is the explanation it is not adequate. 51 If offenders continue to be sentenced by different judges the risk of disparate sentences must always be present. That carries with it the real risk that the community may become justifiably concerned about whether the processes of the criminal law are just and fair. Surely it is not beyond the capacity of those responsible for these matters, when transport is now readily available, to ensure that these difficulties do not arise in the future. For my part the situation should never be allowed to occur but in the most extraordinary circumstances.

Regina v Elhalabi

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