Regina v Hakim

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1213 FILE NUMBER(S) : LOWER COURT Freeman DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60503/03

HIDDEN J KIRBY J

Monday 4 May 2004 REGINA v Joe HAKIM Judgment 1 HIDDEN J: This is an unusual case in which, in my view, a non-custodial penalty would not have been inappropriate. However, I am not prepared to say that a term of imprisonment to be served by way of periodic detention was outside the bounds of a legitimate exercise of discretion although, as Kirby J has pointed out, a non-parole period should have been fixed. It was to that issue that argument in the application was primarily directed. 2 I agree with the orders proposed by Kirby J. 3 KIRBY J: Joe Hakim (the applicant) seeks leave to appeal against a sentence imposed by Freeman DCJ on 24 April 2003. Mr Hakim pleaded guilty to having been an accessory before the fact to break enter and steal (Crimes Act 1900, s112(1) and s346). He was sentenced to two years imprisonment to be served by way of periodic detention, commencing 3 May 2003.

The facts. 4 On 15 March 2002 at about 2.30 am two police officers were patrolling in an unmarked police vehicle in an industrial estate at Seven Hills. They noticed an unattended Toyota van parked by the side of the road. They made enquiries to determine whether the vehicle had been reported as stolen. They were told there had been no such report. The vehicle was registered in the name of Joe Hakim. 5 Shortly after the police observed a male in a Commodore sedan drive past the Toyota van and turn around. The vehicle parked nearby. The police approached the driver of the vehicle. They asked his name. It was Joe Hakim (the applicant). 6 The police immediately recognised the name as the registered owner of the Toyota van. They questioned Mr Hakim further. He gave what the sentencing Judge described as "transparently unsatisfactory answers" as to why, at 3.00 am, he was in the area with a vehicle belonging to him parked nearby. 7 Mr Hakim then made a number of admissions. With one exception, he later repeated those admissions in a video recorded interview. He admitted that he had loaned his vehicle to his cousin, Tannous Abboud. He knew that his cousin, and a person known to him as "Simon", planned to steal air conditioners from a company within the industrial estate. He also knew that Simon worked for that company. According to the police, he acknowledged that he was acting as "look out" for his cousin and Simon, which he later denied in the recorded interview, suggesting that his words had been misunderstood. 8 Mr Hakim was arrested. He was placed in the police vehicle. A search was then undertaken for his cousin and Simon. Mr Abboud was later seen approaching the Toyota van. He had the keys to the van in his hand. Within the vehicle there were bolt cutters. Mr Abboud was also arrested. 9 The police later determined that a company within the estate had been broken into. Air conditioners and electrical goods had been stolen, exceeding $60,000 in value. Also stolen were tools belonging to subcontractors valued at about $11,000. Initially Mr Hakim was charged with the offence of break, enter and steal, and alternatively with being an accessory before the fact in respect of that offence. The Crown ultimately accepted a plea to the latter charge. His Honour dealt with Mr Hakim upon that basis. He said this: (p2/3) "It is apparent that the prisoner knew what was to take place and was a willing facilitator in the lending of his van. It is equally true I think I should say, in agreement with the submission made by Mr Meakin for the prisoner, that there is nothing to suggest that he was any more central to the operation of this quite large, sophisticated and unfortunately successful breaking and entering." 10 His Honour added: (p3) "Nonetheless his role in lending transport is an important one and it is, objectively, one which requires the imposition of a term of imprisonment, in my view." 11 There was no evidence that Mr Hakim knew of the scale of the operation. He did know, nonetheless, that the target was a factory in a remote industrial estate, that the operation was being undertaken late at night, and that his cousin had the assistance of someone who worked at the factory. It may be inferred that he knew that the value of the goods to be stolen was likely to be significant.

The subjective case. 12 Mr Hakim was a young man. He was born on 9 July 1983. At the time of the offence, he was 18 years old. At the time of sentence he was 19 years. He lived at home with his parents and older sister. He did not take drugs. He occasionally drank alcohol. He had pleaded guilty once the Crown had indicated that they were prepared to accept a plea to the lesser charge. 13 Before his involvement in this offence, Mr Hakim had led an exemplary life. He had no criminal record. He was involved with his church, organising youth activities. He had completed the Higher School Certificate and a number of TAFE courses in Information Technology. 14 Mr Hakim worked full time. He was employed as a contract courier. His employer, knowing of this offence, provided a reference. He said that he regarded Mr Hakim as honest, reliable and trustworthy. He valued him as an employee. 15 A number of other persons provided references in similar terms. He was described as having "a strong work ethic". His involvement in this episode was said to be out of character. A number said that he felt deep shame and remorse at his involvement. 16 A pre-sentence report was prepared by the District Officer of the Probation and Parole Service. The Officer spoke to Mr Hakim's employer who made the following comment in relation to the applicant: "He noted however, that Mr Hakim was still naive in his judgment of other people, tending to see them all as good." 17 The District Officer's assessment of Mr Hakim was as follows: "Mr Hakim presented as a quiet, slow-thinking person whose involvement in the current offence has made him aware that there is a need to protect himself from persons who may take advantage of his generosity." 18 Consideration was given by the Probation and Parole Service to alternatives to full time custody. The following was said as to the possibility of a suspended sentence with entry into a good behaviour bond (s12 Crimes (Sentencing Procedure) Act 1999): "If a Good Behaviour Bond or Suspended sentence is imposed, supervision by this Service is not considered necessary as Mr Hakim has adequate family and social support." 19 Mr Hakim was assessed as suitable for community service or periodic detention. 20 There was delay in Mr Hakim being sentenced (not being brought about by the applicant himself). He was therefore reassessed by the Probation and Parole Service and a further report of 18 February 2002 provided, reaffirming the comments previously made. 21 His Honour, in his remarks, made the following comments on the subjective features of Mr Hakim's case: (p3) "In favour of the prisoner he is now aged nineteen, he will turn twenty this July. He was eighteen at the time of the commission of this offence. He has no criminal history; he has, indeed, a store of positive history in his favour and there is a wealth of material which indicates that apart from this endeavour he had been hard working, law abiding and a positive asset to the community." 22 His Honour added: (p3) "It is for those reasons that I think it is permissible to convert the period of detention which I would otherwise have imposed to periodic detention rather than full time. Nonetheless it seems to me this crime requires, if not salutary at least serious punishment. I note that he has given no undertaking to give evidence against his relative but it is likely that he will be a witness of some significance in the Crown case."

The Notice of Appeal. 23 The Notice of Appeal raised four grounds: Ground 1: The Learned Judge erred in determining that the offence "objectively required a sentence of imprisonment" and erred in law and principle in the manner in which he made that determination, and failed to give proper and adequate consideration to other sentencing disposition." Ground 2: The term of imprisonment imposed by the Learned Judge was more than was required to reflect the objective gravity of the offender's conduct. Ground 3: The Learned Judge failed to give appropriate weight to factors standing in the applicant's favour in determining that there was no penalty appropriate other than a sentence of imprisonment, and in determining the length of the sentence, and in determining not to suspend the term. Ground 4: The Learned Judge erred in not fixing a non parole period, or alternatively, in not giving reasons for not doing so."

Grounds 1, 2 and 3. 24 It is convenient to consider the first three grounds together. The applicant drew attention to a number of passages from R v Zamagias [2002] NSWCCA 17 where Howie J described the step required when sentencing under the Crimes (Sentencing Procedure) Act 1999. Paraphrasing his Honour's words, the following propositions can be stated (cf R v Cromarty [2004] NSWCCA 54 at para 85): · First, there are a number of steps in the determination of an appropriate sentence. Each step requires a consideration of the objective gravity of the offence balanced against the subjective circumstances of the offender. · Secondly, a preliminary question must be asked and answered, namely: Are there any alternatives to a term of imprisonment? · Thirdly, if the Court determines that there is no alternative to imprisonment, it must then determine the length of the term of imprisonment. That determination must be made without regard to the manner in which the sentence may be served (whether by home detention or periodic detention) or whether the term should be suspended. · Fourthly, the Court should then consider if an alternative to full time custody is appropriate. In making that determination the Court must recognise that the alternatives to full time custody involve a significant element of leniency. The appropriateness of an alternative to full time custody will depend upon many factors including, importantly, whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment, including deterrence and denunciation. 25 Here it was argued that his Honour made a number of fundamental errors. First, he had not addressed what Howie J described as the "preliminary question", that is, whether there was an alternative to imprisonment. Secondly, in determining the penalty to be imposed, his Honour had regard only to the objective seriousness of the offence. He failed to take account of the strong subjective case of Mr Hakim. He announced his conclusion that a custodial sentence was required before he made any reference to the subjective case. 26 His Honour gave an extempore judgment. The sentencing remarks, in the sequence of paragraphs, may appear to support the submissions made by the applicant. However, I do not accept that his Honour was in error in the manner suggested. The matter came before his Honour at Penrith on 24 April 2003. There were short submissions, during which material was tendered, both by the Crown and counsel for Mr Hakim. His Honour then adjourned to read the material. Having done so, he passed sentence. His remarks extended over a little more than three pages. 27 The material handed to his Honour included the two pre-sentence reports. The reports set out, in the usual way, a commentary upon sentencing options, including alternatives to imprisonment, such as community service. The material tendered included the many character references and other documents concerning the achievements of Mr Hakim. I have no doubt that his Honour considered this material as he addressed, in his own mind, the sequence of issues identified by Howie J, set out above. His Honour obviously knew, before he began his remarks, the sentence he was about to impose. It is wrong, in these circumstances, to attach too much importance to the sequence of paragraphs in the remarks themselves. I would infer that his Honour determined that there was a need for a custodial sentence, having considered the alternatives, and having taken account the objective and subjective material. 28 Mr Hakim had assisted in the commission of a serious offence. It was a significant lapse of judgment. It was open to his Honour, notwithstanding the strong subjective case, to regard the matter as warranting a custodial sentence. Indeed, the submission made by the applicant, that it was "a classic case for a suspended sentence" implicitly recognised that a custodial sentence was appropriate, as made clear from the sequence of the questions identified by Howie J in Zamagias (supra para 24). It was, nonetheless, reasonable that alternatives to full time custody should have been considered, given the youth of the offender, his plea of guilty, the absence of a criminal record, and his strong subjective case. His Honour determined that periodic detention was appropriate. Others may have regarded a suspended sentence as appropriate. In my view, a sentence of periodic detention for a term of two years was within the range of sound sentencing discretion. 29 There is, in my opinion, no substance in grounds 1, 2 or 3.

Ground 4: No non parole period. 30 His Honour, however, did not set a non parole period, nor give reasons for not doing so. 31 In R v Parsons & Poore [2002] NSWCCA 296, the issue arose whether a sentencing Judge was obliged to fix a non parole period where a term of imprisonment to be served by way of periodic detention had been imposed. Here, the issue must be considered in the context of s44 and s45 of the Crimes (Sentencing Procedure) Act 1999, as it then stood (the Act having since been amended). Smart AJ, having considered legislative changes to the role of the Parole Board, said this: (para 84) "84. The Parole Board is not empowered to set a non-parole period. It is for the judge when sentencing the offender initially and imposing a term of imprisonment to fix a non-parole period." 32 The Court (Sully J agreeing) determined there was error where the sentencing Judge failed to fix a non parole period, or failed to give reasons for not having done so. The conclusion of Smart AJ has since been cited with approval by Bell J (with whom Wood CJ at CL and Dowd J agreed) in R v Meyer (2002) 135 A Crim R 438 at 442 (para 9) and by Wood CJ at CL in R v Stephen [2003] NSWCCA 377 (at paras 21-22 and 31). 33 There was therefore error in not fixing a non parole period. It is necessary that this Court should now do so. The Crown has urged that the usual division be made, as suggested by s44(1) of the Act, namely, a non parole period of 75 percent of the term imposed, in this case a period of 18 months. Counsel for Mr Hakim submitted that special circumstances should be found, based upon Mr Hakim's youth and excellent prospects of rehabilitation. 34 Our attention was drawn to R v Hoang [2003] NSWCCA 380, which was an appeal against sentence in respect of serious offences. A lengthy term of imprisonment had been imposed. One of the complaints against the sentence was the failure on the part of the sentencing Judge to find special circumstances. The offender was aged 18 years. Wood CJ at CL (with whom Smart AJ agreed) said this: (para 56) "56. I am, however, persuaded that special circumstances should have been found, arising from the applicant's age and his demonstrated commitment to rehabilitation." 35 His Honour continued: (paras 59-62) "59. Quite separate considerations are involved in determining whether special circumstances exist. The most relevant consideration in this case concerns the desirability of providing for the opportunity of an extensive period of release on parole: R v Fong [2002] NSWCCA 320. In that regard, care does need to be exercised to ensure that the reduction in a non-parole period does not result in a period of potential release that is so lengthy as to be likely to achieve little in the way of supervised assistance. 60. In its later years, on the other hand, an extended period on parole, which includes a period where supervision has been withdrawn because it is no longer considered necessary, may still have a very real significance for a young offender. It can operate as a continuing and effective constraint, since the offender remains subject to the risk of revocation of parole and return to prison for the balance of parole, if he or she re-offends. 61. What is needed is a considered balance to ensure that the non-parole period remains proportionate to the objective and subjective criminality of the offender and also provides a real encouragement and opportunity for rehabilitation. 62. In this case, the length of the sentence, the youth of the applicant, the favourable prospects for his rehabilitation, and the fact that this was his first time in custody, were matters that should, in my view, have been found to constitute special circumstances." 36 There are obvious differences between that case and the case of Mr Hakim. The offender in that case faced a long sentence. He was to be given supervision by the Probation and Parole Service at least for part of the parole period (which is not contemplated here). Although there are those differences, I am nonetheless persuaded that it is appropriate to find special circumstances and fix the non parole period of 15 months.

Order 37 The order I propose therefore is as follows:

2. That the appeal be allowed against the sentence imposed by Freeman DCJ to the extent that the sentence of 2 years imprisonment to be served by way of periodic detention be varied by adding that there be a non parole period of 15 months beginning on 3 May 2003 and ending on 2 August 2004. **********

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