Regina v Makhoul

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0475 FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60147/04 JAMES J ADAMS J BELL J 10 AUGUST 2004 REGINA v TAREK MAKHOUL Judgment 1 JAMES J: Tarek Makhoul has applied for leave to appeal against a sentence imposed on him in the District Court on 19 August 2003 by her Honour Judge Hock, after a jury had found him guilty on one charge of robbery whilst armed with an offensive weapon, being a knife. Armed robbery is an offence under s 97(1) of the Crimes Act for which the maximum penalty is imprisonment for twenty years. For the offence of armed robbery Judge Hock sentenced the applicant to a term of imprisonment for five years with a non-parole period of two years six months commencing on 17 September 2003. 2 On 19 August 2003 Judge Hock also sentenced the applicant for an offence of receiving committed in 1998, to which the applicant had pleaded guilty. For this offence her Honour sentenced the applicant to a fixed term of imprisonment of ten months commencing on 17 May 2003. The applicant had been remanded in custody after the jury returned its verdict of guilty on the armed robbery charge on 23 May 2003 and her Honour, in making the sentence for the offence of receiving commence from 17 May 2003, also took into account a discrete period of six days of pre-sentence custody. In this application no challenge has been made to the sentence for receiving. It will be noted her Honour structured the sentences she imposed so as to make the sentence for armed robbery partly cumulative on the sentence for receiving, to the extent of four months. 3 The applicant was legally represented at the trial and was also legally represented in the proceedings on sentence. However, he has appeared for himself in this application for leave to appeal against sentence. 4 In her remarks on sentence Judge Hock stated the facts of the offence of armed robbery in a way which has not been the subject of any criticism by the applicant on this application. Her Honour said: "The facts giving rise to the first offence are that on 16 September 1999, the owner of Little Bay Cellars, a Mr Thomas Bamborough, was working alone in his store. At about 7.45pm, having no customers, he walked to the front door and looked out. He saw two figures about twenty metres away, both of whom were putting something on their heads. Mr Bamborough went back inside and a few seconds later he was confronted by two people, one of whom was the offender, who was wearing a balaclava and gloves and was holding a knife approximately 30 centimetres long. The offender told Mr Bamborough to give him the money. When he heard the voice, the victim recognised it as that of a regular customer. The offender prodded Mr Bamborough several times with the knife and demanded that he open the till which he did. The offender took all the notes out of the till, between $150 to $250 and put the tray containing the coins on the floor. A short time later, Ms Cheryl Blackburn arrived at the door of the shop to find it closed. Ms Blackburn had previously left to do a delivery for Mr Bamborough and had in fact left her young daughter to be minded by him. Ms Blackburn heard the offender say 'No we are closed'. Shortly after, the door opened and the two offenders ran off along Anzac Parade. Mr Bamborough ran outside and in anger threw a bottle of wine at the departing figures. The offender had, by this stage, removed his balaclava and when the bottle smashed he turned. Both Mr Bamborough and Ms Blackburn recognised him. The police were notified and at 2.30am on 17 September 1999 they attended the offender's unit but did not locate him. On 30 September 1999, police officers saw both offenders at a bus stop and they were arrested". 5 Her Honour commented as follows about the version of events which the applicant had unsuccessfully advanced at the trial: "During the trial there was no issue that the offender did indeed enter the liquor shop. The offender gave evidence that Mr Bamborough owed him money for alcohol he (the accused) had provided to him and mounted a defence of a claim of right. He denied he used a knife. Clearly the jury did not accept his version". 6 Having regard to the nature of the application for leave to appeal and the ground relied upon by the applicant, it is unnecessary to refer to the facts of the receiving offence. 7 In her remarks on sentence Judge Hock referred to the subjective circumstances of the applicant. He was born on 27 July 1966 and was, accordingly, thirty-seven years old at the time he was sentenced. He was born in Kuwait and came to Australia at the age of four. His father was authoritarian and physically aggressive. The applicant left school in Year 11 and was generally in employment as a machine operator until 1997. From 1997 he had been unemployed due to his increasing use of illicit drugs. He had begun using illicit drugs while still at school and by the age of twenty-four was using heroin on a daily basis. 8 In 1999, after he had been arrested and released on bail on the receiving charge, the applicant went to Lebanon and completed a drug rehabilitation programme there. He returned to Sydney in 2001 and was arrested at the airport. Her Honour accepted the applicant's evidence given in the proceedings on sentence that he had intended, on his return to Australia, to surrender to the authorities, in any event. After being in custody for six days the applicant was released on bail. While on bail he underwent a lengthy course of treatment for opiate dependency. Her Honour considered that the applicant's prospects of rehabilitation were reasonable, provided the applicant could adhere strictly to a rehabilitation programme. 9 In her remarks on sentence her Honour said that the offence of armed robbery committed by the appellant fell broadly within the common class of case described by the Chief Justice in para 162 of his Honour's judgment in R v Henry (1999) 46 NSWLR 346, the guideline decision for sentences for the offence of armed robbery - for which the Chief Justice said a sentence should generally fall between four and five years for the full term. However, the offence committed by the applicant was worse in some respects than the common class of case described in R v Henry , because the applicant was not a young offender with little or no criminal history and the applicant had not pleaded guilty. In addition, there were the circumstances of aggravation that the offence had been committed while in company and that at the time of committing the offence the appellant had been on conditional liberty, being on bail on the charge of receiving. 10 Her Honour took into account the delay which had occurred in completing the criminal prosecution of the applicant, while noting that much of the delay had been caused by the applicant's own conduct in going to Lebanon for two years. Her Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act on the basis of the partial accumulation of the sentences she was imposing and that the applicant would benefit from an extended period of supervision on parole. 11 In written submissions prepared by himself the applicant raised four grounds of appeal against the sentence for armed robbery. I will deal with these grounds in turn.

(1) Parity - 12 The applicant submitted that he and the co-offender should have received the same sentence, because they had gone to the liquor store together, had remained together in the liquor store during the robbery and had left the liquor store together. 13 The applicant's co-offender had been separately tried, while the applicant was in Lebanon, on a charge of robbery in company with the applicant and had been found guilty by the jury. Various delays occurred in the sentencing of the co-offender and she was not ultimately sentenced until 20 February 2003. On 20 February 2003 Judge Stewart sentenced the co-offender for the offence of robbery in company to a sentence of imprisonment for three years commencing on the date of sentencing with a non-parole period for one year. Judge Stewart found special circumstances in what he described as the co-offender's difficult domestic relationships, a medical condition of depression for which she was seeing a psychiatrist and the fact that the co-offender had young children who would be affected by her imprisonment. At the time a pre-sentence report about the co-offender had been prepared in October 2002 the co-offender had a child who was only ten months old and she was pregnant with another child, who had been born by the time she was sentenced. The applicant was not the father of either of those children. 14 At the time of sentencing the applicant Judge Hock was aware of the sentence imposed by Judge Stewart on the co-offender. Indeed, a submission that the applicant should not receive any heavier sentence than the sentence Judge Stewart had imposed on the co-offender was made by counsel for the applicant in the proceedings on sentencing before Judge Hock. 15 Her Honour found that the applicant should receive a heavier sentence than the co-offender, "given their different subjective circumstances". Her Honour noted that the co-offender had no previous criminal history at all, that she was the mother of two very young children and that she suffered from a depressive illness and also severe chronic fatigue syndrome. Like the applicant, the co-offender was a heroin addict. 16 Her Honour also held that, while the applicant and the co-offender had both been parties to the robbery and that Judge Stewart, in sentencing the co-offender for the offence of robbery in company, had taken into account that a knife had been used in the robbery, the applicant's objective criminality was greater than that of the co-offender, because he was the offender who had actually wielded the knife and he had, on several occasions during the robbery, threateningly prodded parts of the victim's body with the knife. Her Honour also noted that it was the applicant who had demanded that the victim open the cash register in the liquor store and that it was the applicant who had removed the cash from the cash register. 17 Although the High Court has recently held that it is not a universal principle that a principal in the second degree should receive a lighter sentence than the principal in the first degree, it will often be appropriate that a principal in the first degree should be more severely punished than a principal in the second degree GAS v The Queen [2004] HCA 22. 18 For the reasons which have been given, that the applicant's objective criminality was greater and his subjective circumstances were less favourable, Judge Hock was entitled, and indeed required, to impose a heavier sentence on the applicant than the co-offender had received. It was still necessary for her Honour to impose a sentence on the applicant, such that there would be a due proportion between the sentences passed on the applicant and on the co-offender having regard to their different circumstances and their different degrees of criminality - see Postiglione v The Queen (1997) 189 CLR 295. In my opinion, given the differences between the applicant and the co-offender, it could not be said that the sentence imposed by her Honour on the applicant was disproportional to the sentence which had been imposed on the co-offender. I would reject the first ground of appeal. 19 (2) The second ground of appeal was that the sentencing judge said in her remarks on sentence that the applicant had been incarcerated twice previously, whereas in fact the applicant had been incarcerated only once previously and then only for a short period. 20 This ground of appeal would appear to be based on a passage in the sentencing judge's remarks on sentence in which she said that the applicant had previous convictions for property offences "for which he had twice served short periods of imprisonment." The applicant submitted that he had previously served only one period of imprisonment for a property offence. 21 There are different documents in the appeal papers purporting to set out the criminal history of the applicant and it is not completely clear whether the applicant had been previously sentenced once only or twice to sentences of imprisonment for property offences. However, it would appear to me from an examination of the applicant's criminal history prepared by the Office of the Solicitor for Public Prosecutions that the applicant has made good this ground of appeal. On one previous occasion the applicant had been sentenced to imprisonment for an offence of dishonesty. On another occasion the applicant had been sentenced to imprisonment in the Local Court for an offence of dishonesty but had successfully appealed to the District Court against the sentence of imprisonment. 22 Although it would appear to have been an error on her Honour's part to have said in her remarks on sentence that the applicant had twice previously, rather than once previously, served a short period of imprisonment for a property offence, I do not consider this error played any material part in the reasoning process by which her Honour arrived at the sentence she imposed. 23 (3) The third ground of appeal was that the applicant had no previous criminal conviction for armed robbery. 24 This is true but her Honour did not suggest in her remarks on sentence that the applicant had any such previous conviction. 25 (4) The fourth ground of appeal was the deteriorating state of the applicant's mother's health. 26 In his written submissions the applicant said that his mother was fifty-five years old and that her health was deteriorating, that she had a heart complaint and that she suffered from cervical cancer and that she was too ill to continue looking after the applicant's twelve year old son. 27 In his oral submissions to this Court the applicant withdrew the assertion that his mother has cancer. He, however, reiterated that his mother has a heart complaint. 28 On the hearing of this application the applicant tendered, and the Court provisionally received, a short medical report stating that the applicant's mother suffers from severe depression and a letter from a school counsellor at the school the applicant's son attends, and three cards of hospitals or medical practitioners, one of which would appear to indicate that the applicant's mother has an appointment on 6 October 2004 at the Royal Hospital for Women. 29 There was no evidence before the sentencing judge that the applicant's mother was in ill health or unable to continue looking after the applicant's son. Both the applicant and his mother gave quite extensive oral evidence in the proceedings on sentence but neither was asked any question or gave any evidence about the applicant's mother's state of health. Unsurprisingly, the sentencing judge made no reference to the applicant's mother's state of health in her careful and detailed remarks on sentence. 30 As the evidence relating to the applicant's mother's alleged state of ill health, such as it is, was not before the sentencing judge, the evidence should be admitted by this Court on this application, only if it satisfies one or other of the tests for the admission of fresh or new evidence on an appeal against sentence, referred to in such authorities as R v Fordham (1997) 98 A Crim R 359 at 377-378 per Howie AJ. On the meagre material which has been placed before this Court it would not be possible for this Court to say that any of the tests for the admission of fresh or new evidence have been satisfied. 31 Even if the fresh or new evidence was admitted, it would be evidence of hardship to members of the applicant's family, that is to the applicant's mother or to his son, resulting from the imprisonment of the applicant, and although, according to the recent decision of this Court in R v Girard [2004] NSWCCA 170 such evidence can be referred to as part of "the general mix" of the subjective circumstances of the applicant, the evidence could, in my view, only have a material effect on the sentence which should be imposed on the applicant, if it satisfied the requirement that the hardship to members of the applicant's family would be quite exceptional. 32 In my opinion, even if this Court were to admit as fresh or new evidence the evidence the Court provisionally received, which was not before the sentencing judge, the evidence would not show that the hardship to the applicant's mother or the applicant's child resulting from the imprisonment of the applicant would be so exceptional that this Court could place any material weight on such hardship. Accordingly, I would reject the fourth ground of appeal. 33 Having rejected all of the grounds of appeal, although I would grant leave to appeal against sentence, I would dismiss the appeal against sentence. 34 ADAMS J: I agree and have nothing to add. 35 BELL J: I also agree. 36 JAMES J: The orders of the Court will be as proposed by me.

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