Saed Al-Marzouq v R

Judgment 1SIMPSON J: I agree with Harrison J. 2HARRISON J: The applicant seeks leave to appeal against the sentences imposed by Freeman DCJ on 10 June 2011 at Sydney. The applicant came before his Honour for sentence in relation to a total of eighteen dishonesty and break and enter offences committed over a period of approximately six weeks and while the applicant was on parole. He had earlier pleaded guilty to all matters in the Local Court on 4 April 2011. Eight of the offences were on court attendance notices and the remainder were listed on two Forms 1. 3The applicant was sentenced to an effective non-parole period of 3 years and 3 months and an overall effective head sentence of 6 years. The ratio of the non-parole period to the head sentence was 54.2 percent. His Honour gave the applicant a combined discount of 50 percent for his early plea and for assistance, so that the overall starting point for the sentence was 12 years. Although the applicant originally sought leave to appeal on two grounds, that was restricted at the hearing in this Court to the single ground, namely, that the sentences both individually and in combination were manifestly excessive. 4The applicant was sentenced upon the basis of the following facts. 5At about 7.45pm on 4 August 2010, two unknown males robbed a man, stealing his wallet. Approximately one hour later, the applicant possessed two credit cards from the wallet. That formed the basis for the charge of receiving stolen property. The applicant was sentenced for this offence to a term of 2 years with a non-parole period of 18 months. 6At 8.50pm on the same day, the applicant and a young person attempted to use one of the credit cards at a petrol station to purchase a packet of cigarettes and a $30 Vodafone recharge. They were questioned by the service station attendant who took the card. They later left without the items but the transaction, valued at $47.45, was approved by EFTPOS. That formed the basis for the offence of attempt to dishonestly obtain financial advantage by deception listed on a Form 1. Later, at about 9.17pm, the applicant and the young person went to a convenience store and used the other credit card on two transactions of $24.20 and $30. They formed the basis for two offences of dishonestly obtain financial advantage by deception listed on a Form 1. 7Then at about 9.35pm the applicant and the young person used the credit card at a service station to purchase items totalling $54.38. That formed the basis of the charge of dishonestly obtaining financial advantage by deception. The applicant was sentenced for this offence to a term of 16 months with a non-parole period of 12 months. Shortly thereafter the applicant used the credit card to pay a taxi fare of $13.94. That formed the basis of a further charge of dishonestly obtaining financial advantage by deception. The applicant was sentenced for this offence to a term of 16 months with a non-parole period of 12 months. 8On 10 August 2010 the applicant and another young person went to premises in Rodd Street, Birrong. They there forced open a window and entered the premises. The alarm was activated and they left. No property was taken. The applicant's fingerprints were found at the premises. That formed the basis of the offence of aggravated break and enter with intent to steal in company. The applicant was sentenced for this offence to a term of 3 years with a non-parole period of 18 months. 9On 5 August 2010 the applicant entered the rear yard of unit premises in Renown Avenue, Wiley Park by forcing a side gate while in company with two juveniles. They then used tools found at the premises to smash a hole in the rear door and gain access. They entered several rooms of the unit and ransacked it, leaving items scattered on the floor. No property was stolen. Fingerprints found matched those of the applicant. These facts formed the basis of an offence of aggravated break and enter a dwelling house with intent to steal listed on a Form 1. 10On 9 August 2010 the applicant entered a house in Rose Street, Sefton by forcing open a window. He entered several rooms and ransacked the premises leaving items scattered on the floor. A bottle of soft drink and biscuits were consumed by the applicant whilst there. Numerous items to the value of $2,750 were stolen. The applicant's palm print was found at the scene. These facts formed the basis of an offence of break, enter and steal listed on a Form 1. 11On the following day the applicant removed a flyscreen from a window attempting to gain access to premises by forcing a lock. He also smashed a window in his attempt and reached through the opening. No property was stolen. The applicant's fingerprints were found at the scene. These facts formed the basis of an offence of break and enter a dwelling house with intent to steal listed on a Form 1. 12Between 10 and 11 August 2010 the applicant entered the rear yard and attempted to gain entry to premises in Allum Street, Bankstown by removing a lock on the door and attempting to force it open. No property was taken. The door, the doorframe and the lock were damaged. Fingerprints matching those of the applicant were found at the scene. These facts formed the basis of an offence of attempted break and enter a dwelling house with intent to steal listed on a Form 1. 13On 24 August 2010 the applicant was found in possession of 1.7g of marijuana, a pair of scissors and a bong. He provided a false name to the police. These facts formed the basis of an offence of possess prohibited drug and state false name to police listed on a Form 1. 14On 15 September 2010 the applicant entered premises in Fairview Avenue, Roselands. He switched off the power, jumped a gate into the backyard and smashed a window using a brick. Upon entering the premises the alarm was activated and he left. No property was stolen. Fingerprints found at the scene matched those of the applicant. These facts formed the basis of an offence of break and enter a dwelling house with intent to steal listed on a Form 1. 15On 20 August 2010 the applicant entered premises in Ewen Street, Roselands in company by forcing open a side gate. The offenders entered removed and smashed a perspex and glass louvre on a window through which they gained access to several rooms. They ransacked the premises stealing numerous items to the value of $6,760. The applicant's fingerprints were once again found at the scene. That formed the basis of the offence of aggravated break, enter and steal in company. The applicant was sentenced for this offence to a term of 3 years with a non-parole period of 18 months. 16At about 8.00pm on 5 September 2010 the applicant, in company with the same offenders and one other, entered premises in Clio Street, Wiley Park. They initially knocked on the door but when there was no response, the applicant removed some fence palings to get into the backyard. He then removed the flyscreen and smashed part of the bathroom window. The applicant and the others all entered through the window and ransacked the house stealing numerous items including national service medals and World War II badges to the value of $400. The applicant's fingerprints were once again located at the scene. That formed the basis of the offence of aggravated break, enter and steal. The applicant was sentenced for this offence to a term of 3 years with a non-parole period of 18 months. 17On the following day the applicant smashed a window of a unit in Ferguson Avenue, Wiley Park while in company. He and his accomplice climbed in and entered several rooms. They ransacked the premises, stealing numerous items to the value of $4,869. The applicant's fingerprints were found at the scene. That formed the basis of the offence of aggravated break, enter and steal. The applicant was sentenced for this offence to a term of 3 years with a non-parole period of 3 months. 18Finally, on 14 September 2010 the applicant in company with others unknown entered a unit in Leylands Parade, Belmore. One person initially obtained entry through a partially opened window. That person then left the unit and opened the front security door to give access to the others. They entered several rooms and ransacked the premises stealing numerous items to the value of $15,700. Fingerprints matching those of the applicant were found. That formed the basis of the offence of aggravated steal in dwelling house and break out. The applicant was sentenced for this offence to a term of 3 years with a non-parole period of 18 months.