Regina v Hamieh

Court of Criminal Appeal (NSW)|2010-07-05|Before: Beazley JA, Kirby J, Johnson J

Background facts 4 The matter proceeded before the sentencing judge on the basis of a statement of agreed facts. In summary, those facts were as follows. 5 On 25 October 2006 and 13 December 2006, the respondent purchased a 2006 manual purple Honda Civic Sports Sedan (BBZ-64T) and a 2006 black manual Honda CRV (BBG-80L) for $5,200 and $6,223 respectively as repairable write-off vehicles. Both vehicles were purchased on behalf of his wife. The vehicles were subsequently submitted to RTA vehicle identification sites for inspection and registration. 6 On 19 July 2007, the police executed a search warrant on the respondent's family home, at which the respondent had repaired over 30 written-off vehicles during the past three years. The police accepted that the respondent had used legitimately sourced parts for this work, other than for the two 2006 Hondas. These vehicles were found to contain parts from motor vehicles AYT-30R, ASK-39R and ATO-95X all of which had been reported as stolen. 7 Stolen vehicle AYT-30R was a 2006 manual purple Honda Civic Sedan. Stolen vehicle ASK-39R was a 2004 black manual sports model Honda CRV. Stolen vehicle ATO-95X was a 2005 white Honda CRV sports model, factory fitted with an automatic transmission. 8 The colour of registered vehicle BBZ-64T and stolen vehicle AYT-30R was the same factory Honda colour, Misty Violet. The police vehicle examiner found that a number of the panels installed on BBZ-64T had not been repaired, but rather, had been sourced from the stolen Honda AYT-30R. During the course of the search at the respondent's premises, police also located a "Rockford Fosgate" brand "Punch P1" series customised subwoofer and amplifier, which was later identified as having been originally installed in stolen vehicle AYT-30R. 9 In its 'repaired' state, vehicle BBG-80L was found fitted with a 5 speed automatic transmission. Through enquiries made of Honda Australia, the police vehicle examiner discovered that BBG-80L had been factory fitted with a 5 speed manual transmission. The 5 speed automatic transmission with which the 'repaired' vehicle was fitted was the same as that factory fitted in stolen vehicle ATO-95X. 10 The respondent had used the parts and panels from the stolen vehicles knowing them to have been stolen and with the intention of selling the vehicles. As events turned out, the respondent gave registered vehicle BBZ-64T to his wife. The respondent sold BBG-80L on 17 April 2007 to a Mr Liang Li for $24,000. 11 It is apparent from the colour, make and type of the vehicles that the respondent purchased and then 'repaired' with stolen parts that his conduct involved considerable planning, enterprise and purpose. It was done deliberately. The inference must be, from all of the evidence, including that to which we refer at [14] below, that his conduct was motivated by financial gain.

The respondent's subjective circumstances 12 The respondent was aged 26 at the time of the offending and 29 at the time of sentence. He was married with two young sons. He was in current employment. His wife was a tourism student at TAFE. 13 The respondent had a criminal record, the details of which are dealt with below. It is convenient here to note, however, that on 7 October 2005, the respondent had pleaded guilty to the offence of being an accessory after the fact to the supply of a commercial quantity of methylamphetamine, and was sentenced to imprisonment for 18 months, with a non-parole period of 12 months, suspended on the entering of a bond pursuant to the Crimes (Sentencing Procedure) Act 1999 (the s 12 bond). His Honour found that the bond had expired at the time of the present offending, although he noted that the offences were committed very shortly after the suspended sentence had expired. 14 In the pre-sentence report tendered on sentence (Exh A4) the probation and parole officer reported that the respondent often rebuilt vehicles as a hobby before reselling them. The officer reported that the respondent: "… claimed this was not always financially advantageous however noted that when parts from stolen vehicles were utilised it had the potential to increase profit." 15 The respondent had not considered his conduct to be seriously wrong at the time that he was committing the offences. However, he claimed to the probation and parole officer that his attitude had changed during the court process. The probation and parole officer expressed the opinion that the respondent did not require, nor would benefit from, supervision by the Probation and Parole Service. 16 The respondent suffers from a congenital heart condition. On 9 March 2010, his cardiologist, Dr Patel, reported that: "In brief Mr. Hamieh has significantly impaired ventricular function, ventricular septal defect and he is restricted by fatigue and shortness of breath. He is currently on Carvedilol 50 mg twice daily and he was advised to increase the dose of Perindopril from 5 to 10 mg daily. He will require ongoing follow up with his general practitioner as well as by a cardiologist for indefinite period. If his ventricular function were to deteriorate he may also require cardiac surgery.

In my opinion incarceration would have significant deleterious effect on Mr. Hamieh and his cardiac conditions and general health."

It appears the respondent is on a regime of twice-daily medication for this condition. 17 The respondent also suffered a post traumatic stress disorder as a result of a home invasion in 2001, in which a gun was pointed both at him and at his father. His father was also bashed. The respondent was treated by a psychiatrist, Dr Glassock, during 2001 and 2002. A psychiatric report was obtained from Dr Westmore for the purposes of the sentence hearing. Referring to the respondent's reactions following the home invasion, Dr Westmore reported that: "… [the respondent] would not leave his house, he moved homes frequently and he was always scared. He had problems sleeping and he stopped associating with people." 18 Dr Westmore was of the opinion that the respondent was suffering from an adjustment disorder with depressed mood. Dr Westmore noted that the respondent was worried about incarceration and the impact that might have on his wife and his children. He said that the "current legal matters" were "obviously impacting on [the respondent] from a psychological perspective". Dr Westmore expressed the view that the respondent did not have an antisocial personality disorder, notwithstanding that "he had engaged in some antisocial behaviour". 19 Notwithstanding the respondent's medical and post traumatic psychological trauma, no case was advanced on the sentence hearing that the respondent's physical and psychological health concerns militated against a custodial sentence.

The sentencing judge's remarks on sentence 20 In his remarks on sentence, the sentencing judge referred to the medical reports and to the pre-sentence report, which he considered to be favourable to the respondent in that he was unlikely to require supervision. His Honour also noted the supportive references which had been tendered and the evidence of the respondent's wife, with whom the respondent had a stable relationship, although his Honour noted this matter had caused some difficulties between them. 21 In dealing with the objective seriousness of the offence, the sentencing judge said: "I would not see this as falling within the mid range of objective seriousness in regard to this type of offending. His involvement, whilst part of the activity, was not associated with the theft of the vehicles from which the parts came which, of course, would tend to make the objective offending substantially more serious. I accept the Crown's submission that this was specific legislation designed to deal with this particular problem which affects both motor vehicles and boats and does cause significant financial loss to the community and the community pays for that loss in increased insurance premiums usually." 22 His Honour then noted that the offence was committed "very shortly after [the respondent] had completed a suspended sentence". For this reason and having regard to the period of time over which the offences took place, as well as the relatively serious nature of the losses sustained, his Honour held that a sentence of imprisonment was appropriate. His Honour then imposed the sentence to which we have referred.

Grounds of appeal 23 The Crown has raised four grounds of appeal:

(i) His Honour failed to properly make a finding as to where on the scale of objective seriousness the offending fell.

(ii) His Honour failed to reason as to why he was reducing the non-parole period below the applicable standard non-parole period.

(iii) The degree of departure from the applicable standard non-parole period is so great that it manifests error.

Ground 1: his Honour failed to properly make a finding as to where on the scale of objective seriousness the offending fell

Ground 2: his Honour failed to reason as to why he was reducing the non-parole period below the applicable standard non-parole period 24 The first two grounds of appeal allege error on the part of the sentencing judge for failing to state where on the scale of objective seriousness the offence lay and for failing to give reasons why he imposed a non-parole period that was below the standard non-parole period specified by the legislation. 25 Section 154G, being the offence with which the respondent was charged, carries a standard non-parole period of 4 years. At the time that the concept of the standard non-parole period was introduced, the legislature also introduced s 54B into the Crimes (Sentencing Procedure) Act, which required a sentencing judge to state the reasons for any departure from the standard non-parole period. Section 54B does not apply where an accused person pleads guilty, as occurred here. Nonetheless, there is a common law requirement that a sentencing judge state reasons for departing from the standard non-parole period: Regina v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. 26 The importance of specifying where on the scale of objective seriousness an offence lay and the requirement to give reasons for departure from the standard non-parole period was stated in Way in these terms: "[121] … The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act .

[122] In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount.

[123] The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range.

[124] The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at para 45), cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect." 27 The Court concluded, at [131]: "What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender's guilt was established after trial or by a plea), at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act." 28 The sentencing judge found that the offending to which the respondent had pleaded guilty did not fall within the mid range of objective seriousness. Having regard to the sentence imposed it appears that his Honour found it fell below this range and perhaps significantly below. However, if one asks where in the range of objective seriousness his Honour considered the respondent's offending conduct fell, one is left to conjecture. 29 This Court has consistently pointed out to sentencing judges the importance of this task. This is not a focus on mere formalism. The principal purpose of remarks on sentence is to provide an oral explanation to the offender, the victim(s) and persons in Court at the time when sentence is being passed: R v Bottin [2005] NSWCCA 254 at [12]; Curtis v R [2007] NSWCCA 11 at [30]-[31]; R v Hersi [2010] NSWCCA 57 at [7]. 30 Remarks on sentence serve other purposes as well, including informing the community and an appellate court of the reason for imposition of the sentence: R v Duffy [1999] NSWCCA 321 at [11]; R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 at 394-395 [42]-[44]; R v JCE [2000] NSWCCA 498; 120 A Crim R 18 at 21 [19]; Thomas v R [2006] NSWCCA 313 at [16]. 31 In addition, various statutory provisions (such as the Crimes (Sentencing Procedure) Act, ss 45(2) and 54B(4)) require reasons to be given in specified areas. The giving of remarks on sentence has been rendered more complex, not only by such statutory requirements, but also by the greater complexity of sentencing principle generally, as the detailed judgments of this Court attest. 32 It is important to recognise, therefore, that there is a practical tension between the principles requiring oral reasons, delivered in plain English and with brevity (usually in a busy list) and the need for reasons to satisfy the requirements of the law in the particular case. Remarks on sentence are frequently delivered ex tempore and, as the Chief Justice has observed in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566, at [48] 577: "The conditions under which District Court judges give such reasons are not such as to permit their remarks to be parsed and analysed." 33 Notwithstanding this tension, the obligation to give reasons remains. It is not a discretionary component of the sentencing process. Having regard to this obligation, but acknowledging the practical restraint that an appellate court should exercise in reviewing a sentencing judge's reasons, we are of the opinion that the sentencing judge did not identify where on the objective scale of seriousness the offence lay and failed to give reasons sufficient to comply with this requirement of the sentencing process. His Honour did state that the offence "did not fall within the mid range of seriousness." But in an offence such as s 154G, which includes a significant range of different types of offending of varying degrees of severity, that finding is not very illuminating. Neither the Crown nor the respondent, nor this Court, knows whether the sentencing judge considered that the respondent's conduct was at the higher or lower end of offending which fell below the mid range. That assessment does not and indeed cannot, be articulated with "absolute precision": per Howie J in R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338. Rather, as his Honour stated in that case, at [39]: "… it must at least indicate whether the offence is assessed as below, of, or above midrange of seriousness with some indication as to the degree to which it departs from the mid range if that is the finding ." (emphasis added) 34 If his Honour considered that the offender's conduct fell at the higher end of that range, it would be immediately obvious that a sentence of 2 years in respect of an offence that carries a maximum sentence of 14 years would be manifestly inadequate. On the other hand, if his Honour considered that the seriousness of the respondent's offending fell at or towards the bottom end of this range, as the sentence imposed appears to indicate, then the question would have to be asked as to why the respondent's offending should be so characterised. There are manifold circumstances which would fall at or towards the bottom range of seriousness for this offence, such as the offender's role in conveying stolen parts from a distributor to a receiver. The question may be asked whether the sentencing judge considered that the respondent's offending behaviour was of that level or some other level of objective seriousness. Unfortunately, the answer is not found in his Honour's reasons. The first ground of appeal has been made out. 35 The second ground of appeal has also been made out. As explained in Way, at [131] (set out above), although the standard non-parole period is not the starting point of the sentencing process, its importance as a reference point or guidepost has been emphasised by this Court, as has the need to articulate why the standard non-parole period was not the appropriate non-parole period: see R v Mills [2005] NSWCCA 175; 154 A Crim R 40; R v Tory & Tory [2006] NSWCCA 18; R v Jenkins [2006] NSWCCA 412; El-Chammas v R [2009] NSWCCA 154. The comments already made about the need to articulate reasons apply equally here. 36 In Mills, Wood CJ at CL, after referring to the mandatory requirements of s 54B(4), stated, at [50]: "The present case, it may be accepted, was one involving pleas of guilty, so that the role of the standard non-parole period was as a reference or check point: R v Way ... That circumstance does not however lessen the obligation to give adequate reasons in relation to this aspect of sentencing." 37 In Tory & Tory, Latham J (with whom Hunt AJA agreed) said, at [42]: "This Court has stressed that it is not sufficient to pay mere lip service to the standard non-parole period. The fact that a plea of guilty may convert the role of the standard non-parole period into a benchmark or checkpoint does not relieve a sentencing judge of the requirement to provide adequate reasons for a departure from the standard non-parole period: R v Mills ..." 38 And, in El-Chammas, Buddin J, at [25], said: "… reasons need to be stated with some specificity and the greater the departure from the standard non-parole period, the more compelling the reasons need to be." 39 In this case, the sentencing judge imposed a non-parole period of 12 months but did not state any reasons for departing from the standard non-parole period. As already indicated and for the reasons stated, his Honour's failure to do so amounted to appellable error.

Ground 3: the degree of departure from the applicable standard non-parole period is so great that it manifests error

Ground 4: the sentence imposed was manifestly inadequate 40 Grounds 3 and 4 may also be considered together. 41 The Crown submitted that a non-parole period of 12 months indicated that his Honour must not have had regard to the standard non-parole period as a reference point. In this regard, the Crown relied upon Jenkins, where Hoeben J (Simpson and Barr JJ agreeing) said: "[27] … The authorities are clear that even when a Court decides that the standard non-parole period should not be applied, it remains relevant as a guidepost in the sentencing process …

[28] … the standard non-parole period, even if not applied, still has an important part to play and cannot be left out of consideration when the ultimate sentence is formulated." 42 In the case here, the Crown relied upon: the objective seriousness of the offence; the fact that there was a standard non-parole period of 4 years for an offence under the Crimes Act, s 154G; the maximum penalty under that same section of 14 years; and the need for general deterrence in an offence of this nature; as demonstrating that a sentence of 2 years imprisonment with a non-parole period of 12 months was manifestly inadequate. The Crown contended that the respondent's subjective circumstances, whilst cogent, did not warrant the leniency that the sentencing judge afforded to him. The Crown submitted, alternatively, that even if the sentence of imprisonment was held not to be outside the available range of sentences that could be imposed, an order that it be served by way of periodic detention resulted in a sentence that was, in any event, manifestly inadequate. 43 The Crown placed particular emphasis on the objects of the legislative scheme enacted by the Crimes Amendment (Organised Car and Boat Theft) Act 2006, which introduced s 154G into the Crimes Act on 23 May 2006. The new provision is specifically directed to the criminal industry of car rebirthing. 44 The background to the 2006 legislative amendments included the Report of the Independent Commission Against Corruption entitled 'Rebirthing Motor Vehicles: Investigation Into the Conduct of Staff of the Roads and Traffic Authority and Others' (November 2000), in which Assistant Commissioner Cripps QC considered the vice of car rebirthing, including the theft of cars for this purpose, producing a valuable item for criminals to resell to unsuspecting buyers (p 1). The scope for corruption of public officials in areas of vehicle inspection and registration was also emphasised (pp 1-2, 42). 45 Decisions of this Court for offences committed before the 2006 amendments concerning sentence for receiving offences had emphasised the seriousness of crimes associated with car rebirthing: Mason v R [2007] NSWCCA 32 at [19]; Sullivan v R; Skillin v R [2008] NSWCCA 269; 51 MVR 572 at [29] 578. The 2006 amendments involve a specific legislative response to this problem with particular emphasis upon the need for deterrence and the imposition of appropriately severe penalties. 46 The seriousness with which the legislature viewed the new s 154G offence is also apparent from the maximum penalty of 14 years imprisonment as compared with the offence of stealing a motor vehicle, which carries a maximum penalty of 10 years: see s 154F. It should also be noted that the new section provides for a maximum penalty of 14 years for participation in any one step in the process of car rebirthing, thus giving effect to the legislative recognition that each step in the rebirthing process is a requisite and profitable one. 47 The significance of these matters was highlighted in the Minister's second reading speech to Parliament, where the Minister noted that car and boat rebirthing activities cost the New South Wales community $100 million annually and identified some of the 'social' costs of rebirthing. He said: "Firstly, rebirthing means that the stolen vehicle will not be recovered, in contrast to 'joyriding'-style car theft, where the vehicle is usually recovered. This results in true owners being deprived of their cars permanently, and higher insurance premiums for us all. In addition, if a rebirthed car that has been on-sold is subsequently identified, seized and taken back to its true owner, the honest buyer who paid market price for the car may be left with nothing.

Secondly, rebirthing is dangerous. It may involve serious physical alterations to the car, such as grafting the front end of one car to the back end of another. This creates a structural flaw which in an accident could mean that the car disintegrates with its innocent new owners inside.

Thirdly, because rebirthing is potentially lucrative, it entices young people into becoming involved with organised criminal gangs. It can corrupt legitimate tradespeople who work with vehicles, because rebirthing gangs actively seek to 'recruit' professionals working in the industries of motor vehicle repair, wrecking, sale and registration. These people can provide the paperwork to give the rebirthers' illegal activities the veneer of legitimacy." 48 Importantly, in terms of the intended deterrent effect of the legislation, the Minister said: "These new offences provide deterrence against being involved in rebirthing, and send a clear message to those thinking of being involved in rebirthing activity that the punishment will far outweigh any illegal benefits."

The Minister also referred to the " strict penalties for rebirthing " that the Bill proposed and the closing of loopholes in the criminal law that rebirthers might try to exploit. 49 The action of the legislature in increasing penalties for a particular offence, or in this case, creating a new offence with maximum penalties which are greater than the offences under which this type of criminal activity was previously caught, requires that sentences imposed for criminal activity which is thereby targeted to reflect the legislature's purpose and concerns. This was noted in Way, where the Court stated: "[51] The statutory maximum penalty has been regarded as an expression of the policy of the legislature in providing for the offence ( R v Oliver (1980) 7 A Crim R 174 at 177; Gilson v The Queen (1991) 172 CLR 353 at 364), or as a reflection of the seriousness of that offence as perceived by the public ( R v H (1980) 3 A Crim R 53 at 65). It has been reserved for the 'worst type of case falling within the relevant prohibition': Regina v Tait and Bartley (1979) 46 FLR 386, R v Fernando [1999] NSWCCA 66 at para 227 and Ibbs v The Queen (1987) 163 CLR 447, although the adoption of that phrase is not an occasion for the imposition of a lesser sentence if it is possible to envisage a worse case: Veen v The Queen [No 2] (1988) 164 CLR 465 at 478.

[52] Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum: R v Sha (1988) 38 A Crim R 334; R v Peel [1971] 1 NSWLR 247. The courts are expected to recognise and reflect that intention when sentencing offenders for offences after such amendments are made: R v Slattery (1996) 90 A Crim R 519 at 524 and R v Jurisic (1998) 45 NSWLR 209 at 227." 50 As already indicated, the seriousness with which the legislature views this offence cannot be gainsaid. However, the section encompasses a wide range of criminal activity and a person guilty of an offence under s 154G is to be punished for the actual offending conduct in which that person engaged: see Ibbs v R [1987] HCA 46; (1987) 163 CLR 447 at [4] 452, where the High Court stated: "When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case … As Dwyer CJ said in Reynolds v Wilkinson (1948) 51 WALR 17, at p 18: 'Crimes bearing the same general description have not equally evil content or characteristics, and offenders also differ in themselves.'" 51 The respondent's offending conduct in this case is set out at [5]-[10] above. We agree with the sentencing judge's assessment that that conduct fell below the mid range of objective seriousness of offences that might be committed under s 154G. However, as already explained, to so describe the offending is not a sufficient assessment of the objective seriousness of the offence. 52 The respondent's conduct involved a demonstrated knowledge of how to source repairable write-off vehicles, how to register those vehicles and then how to substantially rebuild those vehicles with parts from other vehicles. That knowledge and skill had all been legitimately acquired and previously utilised by using vehicle parts that had been legally sourced. However, in rebuilding the two vehicles subject of the offence, the respondent chose to use stolen parts. The evidence is silent as to how he sourced those parts or what he paid for them. All that is known is that the parts came from three stolen vehicles. Although the respondent is not alleged to have been involved in the theft of the vehicles from which the stolen parts came, nonetheless, as the second reading speech makes clear, every step in the rebirthing industry is necessary and interrelated. It is for that reason that the offence has been treated by the legislature with the seriousness to which we have already referred. 53 The Crown submitted that the degree of departure from the standard non-parole period demonstrated that the sentence was manifestly inadequate (ground 3). The Crown also submitted that the sentence was manifestly inadequate on its face (ground 4). The consideration of ground 3 as a stand alone ground of appeal is somewhat problematic in this case. The standard non-parole period, when first introduced, was intended to be a legislative indication of the non-parole period that should be imposed in a case that fell within the mid range of seriousness. Because that was the intended operation of the standard non-parole period, it is not surprising that the legislature also required a sentencing judge to give reasons to explain any departure from that standard. That requirement dovetailed with the accepted and principled sentencing practices of identifying the level of criminality by reference to the mid range: see Knight; Oh Hyunwook v R [2010] NSWCCA 148 at [43]. 54 The effect of Crimes (Sentencing Procedure) Act, s 54B is that the standard non-parole period specified for any particular offence reflects an offence in the mid range of seriousness. However it is difficult to reconcile a standard non-parole period of four years where the maximum penalty for the offence is 14 years imprisonment. This problem was addressed in respect of the offence of possession of a pistol under the Firearms Act 1996, s 7 which carries a maximum penalty of 14 years, but with a standard non-parole period of three years. In R v Najem [2008] NSWCCA 32, R S Hulme J said, at [38]-[39]: "[38] Any judgment as to the appropriate penalty to be imposed in respect of the offence the subject of the second count has also to cope with the fact that there are, at least on first impression, two irreconcilable standards against which that offending has to be measured. As has been said, the maximum penalty for the offence is 14 years, yet the standard non-parole period is 3 years. The effect of ss 54A and 54B of the Crimes (Sentencing Procedure) Act is that, for an offence in the middle range of objective seriousness, a court is required to impose the standard non-parole period unless there are reasons for not doing so.

[39] One would fairly have expected that the standard non-parole period for an offence in such mid-range to be of the order of half of the maximum." 55 In Thalari v R [2009] NSWCCA 170, Johnson J said, at [84]-[85]: "[84] In R v Najem , Hulme J at [38] pointed to what were described as 'two irreconcilable standards' against which a s.7(1) offence was to be measured - a maximum penalty of 14 years' imprisonment, but a standard non-parole period of three years.

[85] In approaching the challenge to the sentence imposed in this case, it is necessary to keep in mind the available maximum penalty for the s.7(1) offence, as well as the relatively low standard non-parole period which is available, as a guidepost, following a plea of guilty." 56 The problem in this case is similar to that in Najem and Thalari. Accordingly, the Court has to approach the determination of the appropriate sentence, both by reference to the maximum sentence of 14 years and to the standard non-parole period of 4 years, that must be accepted as being the statutory reference point for an offence in the mid-range of seriousness. 57 The Crown has submitted that the extent to which the sentence in this case was below the standard non-parole period demonstrated that the sentence imposed was manifestly inadequate. That submission does not have much attraction standing on its own. Rather, it is first necessary to determine where in the range of objective seriousness the respondent's offending lay. This part of the sentencing exercise does not require a mathematical approach. Nonetheless, some sense of 'scaling' is required. Given the use of parts from three stolen vehicles and the resale of one of the vehicles that the respondent rebuilt at a significantly increased price to a person who, presumably, has lost the vehicle due to the respondent's criminal activity and, having regard to the wide range of activities that are caught by the section, we are of the opinion that the objective seriousness of the respondent's offending conduct lies about halfway between the lowest end and the mid range of objective seriousness.

Section 21A considerations 58 Section 21A requires that the offender's subjective circumstances be taken into account. In this case, the respondent is married with a young family. He had a significant psychiatric illness as a young adolescent, associated with criminal conduct inflicted on him and his father. He pleaded guilty: see s 22. In this regard, the sentencing judge reduced the sentence by 20 per cent for the plea. No issue was taken with that by the Crown and that percentage reduction should be retained. 59 However, the respondent has a number of previous convictions. Between 1999 and 2005 the respondent was convicted of a total of 14 offences, which had been committed on 8 separate occasions. The majority of those offences were driving offences, or associated with driving offences, including: driving a class of vehicle which was suspended, providing a false name or address and driving whilst disqualified. The respondent was placed on recognisance for a larceny offence committed in 1999. He received a s 10 bond in respect of the most recent of the driving offences. In 2001, he was given a s 9 bond to be of good behaviour for the offence of destroy or damage property. The bond was terminated in April 2002, following completion of a probation and parole service personal development program. 60 In 2005, the respondent pleaded guilty to the offence of being an accessory after the fact to the supply of a commercial quantity of a prohibited drug, namely, methylamphetamine. That was the offence in respect of which the respondent was given the s 12 bond to which we have referred earlier. As a matter of sentencing principle, the fact that the sentencing judge in that case suspended the sentence meant that the respondent's criminality was of sufficient seriousness as to call for the imposition of a custodial sentence: the Crimes (Sentencing Procedure) Act, s 12; R v Zamagias [2002] NSWCCA 17; Douar v Regina [2005] NSWCCA 455; 159 A Crim R 154. 61 The Crown expressly disavowed any reliance on the principles in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 so far as the respondent's criminal history was concerned. Nonetheless, it cannot be left unsaid that that history reveals the respondent's criminal conduct on this occasion was not an isolated incidence of unlawful behaviour. Apart from the 2005 accessory offence, for which the appellant received a s 12 bond, the respondent's earlier unlawful behaviour, which for the most part was in respect of driving offences, did not involve serious criminality. However, those earlier driving offences exhibited a notable disrespect for the law, particularly given the number of those offences and the fact that on occasions, his further traffic offending was because he failed to comply with the penalties already imposed. That behaviour exhibited an element of conscious wrongdoing and an express defiance of the Court's orders. The 2005 offence and the offence subject of this appeal involved a significant escalation in the seriousness of the unlawful behaviour in which the respondent was prepared to engage. 62 Accordingly, the respondent comes before the Court as a person who has a history of disrespect for lawful authority and whose conduct has now, for the second time, escalated to serious criminal activity. That history does not assist the respondent on this appeal. It certainly tells against the imposition of a lenient sentence on the basis of his subjective circumstances. 63 This is also a case where weight must be given to general deterrence. The need for such deterrence was part of the stated legislative purpose in enacting the special provisions relating to car and boat rebirthing. In R v Radich (1954) NZLR 86 the New Zealand Court of Appeal noted that general deterrence loomed large in the sentencing process. As the Court said, at 86: "One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment." 64 This principle has been applied consistently by this Court: R v Rushby (1977) 1 NSWLR 594 at 597-598; Nekuda v R (1989) 39 A Crim R 5 at 9 per Hunt J; Rose (New South Wales Court of Criminal Appeal, 23 May 1996, unreported); R v Harrison (1997) 93 A Crim R 314; R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340; R v AEM; R v KEM; R v MM [2002] NSWCCA 58; R v Markarian [2003] NSWCCA 8; and R v Riddell [2009] NSWCCA 96; 194 A Crim R 524. In Harrison the Court observed that public deterrence is generally regarded as the main purpose of punishment. The Court continued, at 320-321: "… the subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed." 65 In R v Peel [1971] 1 NSWLR 247 this Court noted, at 262, that the primary objectives of the legislation by which the relevant offence was created must be recognised and penalties must be imposed that secure those objectives. 66 In this case, the sentencing judge appears to have allowed attention to the respondent's subjective considerations to cause inadequate weight to be given to the objective circumstances of the case and the need for general deterrence for this class of offence: R v Dodd (1991) 57 A Crim R 349 at 354. This may explain how the sentencing Judge imposed a manifestly inadequate sentence in the well-recognised sense that it was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] 370-371.

The sentence 67 In our opinion, a sentence of 2 years, as imposed by the sentencing judge, was manifestly inadequate and did not reflect the objective seriousness of the offence. Nor did it adequately take into account the respondent's prior criminal history and the need, therefore, in this case, for personal deterrence. Nor did the sentence sufficiently take into account general deterrence, for the reasons discussed. Nor is there anything in the respondent's personal circumstances that warranted the lenient sentence that was imposed. 68 This appeal has fallen to be determined after the introduction of the Crimes (Appeal and Review) Act 2001, s 68A and accordingly this Court, in reviewing the sentence imposed, is not confined by the notion of 'double jeopardy' as that notion applied to sentencing on a Crown appeal. There may of course be discretionary factors in a particular case that would cause the Court not to intervene in a Crown appeal. In R v JW [2010] NSWCCA 49 this Court refused to intervene where the Crown had induced a mistake that was made by the trial judge. In this case, there are no discretionary considerations that would cause the Court to refrain from intervening in what is a manifestly inadequate sentence. 69 In our opinion, the sentence that ought to be imposed on the respondent so as to properly reflect the matters to which we have referred is 3 years.

The non-parole period 70 At this point, reference should be made to the Crimes (Sentencing Procedure) Act, s 44(1). That section provides: " 44 Court to set non-parole period

(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence)."

The procedure required by s 44(1) is a technical exercise carried out at the end of the sentencing exercise: see Musgrove v R [2007] NSWCCA 21; (2007) 167 A Crim R 424 at [44]. 71 Given the full term of imprisonment which we consider should be imposed, it follows that the standard non-parole period is not engaged in this case. However, his Honour gave no reasons and we can find no warrant for a non-parole period which is 50 per cent of the full term. Such a sentence does not comply with s 44, unless special circumstances were found, and even then it fell significantly below the range that is usually ordered by way of a non-parole period where there is a finding of special circumstances. 72 The sentencing judge did not make any finding of "special circumstances" and the Court should not infer that he intended to do so. Section 44(1) requires a judge who finds special circumstances to make a record of the reasons for that decision. An appellate court should not make assumptions about a trial judge's reasoning process, unless it is apparent either expressly or by reasonable inference what that reasoning is. No inference is available to be drawn from any of his Honour's reasons, other than the non-parole period that he imposed. In any event, the fundamental problem with the non-parole period imposed was the failure to give reasons as required by s 44. This Court cannot merely stand by and excuse the failure of a trial or sentencing judge to comply with mandatory statutory provisions such as is imposed by this section. 73 No question of special circumstances was raised on behalf of the respondent on the appeal. According to the pre-sentence report, he is not in need of an extended period of supervision after his release. However, this will be the respondent's first period of custody, which is a basis upon which to make a finding of special circumstances. For that reason, we would make a slight adjustment of the non-parole period that otherwise ought to be imposed by the proper application of s 44. But for a finding of special circumstances, the applicable non-parole period was 27 months. We would order a non-parole period of 2 years.

Periodic detention 74 It is next necessary to determine the manner in which the sentence is to be imposed. The Crown contended that a custodial sentence is called for. The respondent submitted that any sentence, even if greater than that imposed by the sentencing judge, should be served by way of periodic detention. 75 The Crimes (Sentencing Procedure) Act, s 5(1) provides: " 5 Penalties of imprisonment

(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate." 76 The Act then contains various provisions for the imposition of a sentence of less than a full time custodial sentence. Relevantly in this case, the Court imposed a sentence that was to be served by way of periodic detention pursuant to s 6. Such a sentence can only be imposed if the court determines that no penalty is appropriate other than a sentence of imprisonment. The court must then determine what that appropriate sentence is: see R v Foster [2001] NSWCCA 215; Zamagias; Douar. 77 Whether or not the sentence should be served other than by way of full time custody involves the important consideration as to whether: "… such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purpose of punishment." ( Douar per Johnson J at [72]) 78 The manifold purposes of punishment to which Johnson J referred in this passage are those specified in the Crimes (Sentencing Procedure) Act, s 3A. Some of those have already been referred to. However, it is convenient to set them out comprehensively here, so as to have them in the foreground for the purposes of determining whether an order for periodic detention is appropriate in this case. They are, namely, (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, and (g) to recognise the harm done to the victim of the crime and the community. 79 In Zamagias, Howie J emphasised the central importance of the objective seriousness of the crime in determining whether a full time custodial sentence or some other mode of punishment, such as periodic detention, should be imposed. His Honour stated, at [23]: "It is clear that, when sentencing an offender to a term of imprisonment under [the Crimes (Sentencing Procedure) Act ], a court is required to undertake a number of steps before finally determining the appropriate sentence. Each step requires the court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender, but it is the first of those considerations that will principally determine which of the available sentencing alternatives the court should adopt. This is because at the end of the day the sentence must be commensurate with the seriousness of the crime: R v Geddes (1936) 36 SR(NSW) 554; R v Rushby [1977] 1 NSWLR 594." 80 It is accepted that a sentence of periodic detention is more lenient than a sentence to be served by way of a full time custodial sentence. Indeed, it has been said that periodic detention has a very strong element of leniency built into it: see R v Hallocoglu (1992) 29 NSWLR 67 per Hunt CJ at CL at 73 which this Court (Mason P, Wood CJ at CL, Sully J) referred to in Regina v Rivkin [2004] NSWCCA 7; 59 NSWLR 284, where the Court stated, at [433]: "Periodic detention is, on any view, a less harsh sentence than one involving full term detention, as has been authoritatively accepted: R v Hallocoglu …" 81 Nonetheless, the very real burden of complying with a periodic obligation over a lengthy period must be recognised: see R v Burnett (1996) 85 A Crim R 76; R v Pangallo (1991) 56 A Crim R 441; R v Mouzomenos [2005] NSWCCA 203. 82 In Douar, at [69]-[72], Johnson J set out a three stage process for determining whether to impose a sentence of periodic detention. Firstly, the court must consider whether a sentence of imprisonment is appropriate, to the exclusion of an alternative penalty, having regard to the objective gravity of the offence. Secondly, it must determine the term of the sentence, ignoring the manner in which it is to be served. Thirdly, and only after these two stages have been undertaken, can the court then consider whether an alternative to full time detention is available, and if so, whether an alternative should be utilised. 83 Johnson J noted, at [72], that the third stage is reached once the length of the sentence of imprisonment has been determined. At that point, the court considers whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. His Honour stated that the availability of an alternative to full-time custody will generally be governed by the length of the term that the court has already determined should be imposed, subject to the restrictions or preconditions imposed by the legislature on a particular sentencing alternative. 84 Johnson J stated that whether an alternative such as periodic detention should be ordered depended upon various factors. One factor of importance is whether such an alternative manner of serving a sentence would properly result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purpose of punishment. His Honour noted that in choosing an alternative to full-time custody, the court should not lose sight of the fact that the more lenient the alternative, the less likely it is to fulfil all the purposes of punishment: see Zamagias at [28]. 85 Having regard to these principles, we reject the respondent's submission that any sentence that this Court might impose should be served by way of periodic detention. The appellant has criminal antecedents of varying degrees of seriousness. For the most part, as discussed, those antecedents are in respect of driving offences or offences related to driving offences, such as not state name and address. The penalties imposed were mostly disqualifications and fines. However, the record indicates that the respondent did not comply with some, at least, of the disqualification orders. This type and extent of offending shows a disrespect for authority and for the need to obey lawful rules which are not particularly burdensome but which are important for the safe and reasonable functioning of society. 86 The respondent has one offence of dishonesty (1999) and one of destroying or damaging property (2001). Those offences were also relatively minor, in that they involved amounts under $2,000. For the first offence, no conviction was recorded and the respondent was placed on recognisance for 3 years. For the second, the respondent was given a s 9 bond to be of good behaviour for 2 years and was under the supervision of the Probation and Parole Service. There is then the accessory offence, which we have already discussed. 87 The objective seriousness of the current offence tells against an order of periodic detention. Further, the respondent's antecedent criminal history indicates a need for personal deterrence in the sense that he clearly needs a sentence of sufficient severity to bring home to him the unlawfulness of his conduct. The offence itself is one that the legislature has specifically indicated involves general deterrence. Neither of those matters would be addressed by an order that the sentence be served by way of periodic detention. The respondent's subjective factors of having a young family, a previous traumatic psychiatric condition and a heart condition that is effectively controlled by medication, are not so compelling as to warrant that his sentence be served by way of periodic detention. 88 The orders of the Court are:

Quash the sentence imposed by the sentencing judge and in lieu thereof order the respondent is sentenced to a term of imprisonment comprising a non-parole period of 2 years commencing on 14 May 2010 and concluding on 13 May 2012 with a balance of term of 12 months commencing on 14 May 2012 and concluding on 13 May 2013. **********

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.

CITATION: Regina v Hamieh [2010] NSWCCA 189

CATCHWORDS: CRIMINAL LAW - car rebirthing - Crimes Act 1900, s 154G - CRIMINAL LAW - sentence - objective seriousness of offence - scale of objective seriousness - obligation to state where on the scale of objective seriousness an offence lies - CRIMINAL LAW - sentence - periodic detention - need for general deterrence - CRIMINAL LAW - sentence - manifestly inadequate sentence - whether an order for periodic detention fulfils purposes of punishment - CRIMINAL LAW - plea of guilty - Regina v Way [2004] NSWCCA 131 (2004) 60 NSWLR 168 - common law requirement to state reasons for departing from the standard non-parole period

Curtis v R [2007] NSWCCA 11 Douar v Regina [2005] NSWCCA 455; 159 A Crim R 154 El-Chammas v R [2009] NSWCCA 154 Ibbs v R [1987] HCA 46; (1987) 163 CLR 447 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mason v R [2007] NSWCCA 32 Musgrove v R [2007] NSWCCA 21; (2007) 167 A Crim R 424 Nekuda v R (1989) 39 A Crim R 5 Oh Hyunwook v R [2010] NSWCCA 148 R v AEM; R v KEM; R v MM [2002] NSWCCA 58 R v Bottin [2005] NSWCCA 254 R v Burnett (1996) 85 A Crim R 76 R v Dodd (1991) 57 A Crim R 349 at 354 R v Duffy [1999] NSWCCA 321 R v Foster [2001] NSWCCA 215 R v Hallocoglu (1992) 29 NSWLR 67 R v Harrison (1997) 93 A Crim R 314 R v Hersi [2010] NSWCCA 57 R v JCE [2000] NSWCCA 498 R v Jenkins [2006] NSWCCA 412 R v JW [2010] NSWCCA 49 CASES CITED : R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338 R v Markarian [2003] NSWCCA 8 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Mills [2005] NSWCCA 175; 154 A Crim R 40 R v Mouzomenos [2005] NSWCCA 203 R v Najem [2008] NSWCCA 32 R v Pangallo (1991) 56 A Crim R 441 R v Peel [1971] 1 NSWLR 247 R v Radich (1954) NZLR 86 R v Riddell [2009] NSWCCA 96; 194 A Crim R 524 R v Rushby (1977) 1 NSWLR 594 R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Tory & Tory [2006] NSWCCA 18 R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340 R v Zamagias [2002] NSWCCA 17 Regina v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 Regina v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Rose (New South Wales Court of Criminal Appeal, 23 May 1996, unreported) Sullivan v R; Skillin v R [2008] NSWCCA 269; 51 MVR 572 Thalari v R [2009] NSWCCA 170 Thomas v R [2006] NSWCCA 313 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

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Cases Cited (45)