ZAMMIT, Jared Mark v R

CITATION: ZAMMIT, Jared Mark v R [2010] NSWCCA 29

R v Falls [2004] NSWCCA 335R v Millar [2005] NSWCCA 202 CASES CITED : R v Price [2005] NSWCCA 285 Ngati v R [2008] NSWCCA 3 Mulato v R [2006] NSWCCA 282

Further I cannot accept the offender's evidence that he had no discussion with Mr Fisher beforehand as to the reason Mr Fisher was going to the premises other than to collect Ms Saliba and her daughter. Clearly there had been these threatening text messages from Mr Fisher, sent to the victim's mobile phone, and I find it impossible to accept that in the course of the evening before and in the course of the car journey to the premises, that Mr Fisher had not told the offender of his animosity towards either or both Ms Saliba or {the victim}. 29 In my opinion it was open to his Honour to make the findings he did. He was entitled to consider all the evidence including the threatening text messages that indicated that violence would be used against both Ms Saliba and the victim. Once the victim was identified and there was an exchange between him and Fisher, the applicant attacked the victim. There was no other possible reason for him to have done so unless he understood that they were present to enter into the house, and remove Ms Saliba by force if necessary and that the victim was an opposing party. 30 True it is that Fisher immediately stopped the applicant but that might well have been because there was no occasion to use force at that time. The attack upon the victim was unjustified when it occurred, but it does not follow that there had been no agreement between the applicant and Fisher that force might be required to be used against the victim. In my opinion the attack upon the victim is consistent only with the fact that, before they arrived at the premises, the applicant knew of the animosity that had been expressed by Fisher towards the victim and was there to assist him if necessary. It is clear that the door was kicked in by agreement between Fisher and the applicant, whoever it was that actually forced the door open. 31 This ground fails. Grounds 2 and 3 - manifest excessive sentence 32 The complaint under the second ground is that the Judge paid insufficient attention to the applicant's age. But that submission can only be justified if the sentence is manifestly excessive having regard to the applicant's age. 33 I doubt that I would have determined that the offence was mid range, having regard to the types of offences with which the section is concerned. As counsel for the applicant pointed out in this Court, the offence charged was an assault occasioning actual bodily harm and by reason of the maximum penalty is the least serious of the indictable offences that could give rise to the offence under s 112(2). However, frequently the offence committed, or intended to be committed, is a stealing and that offence also carries a maximum penalty of 5 years. It is to be noted, however, it was not alleged in the charge that the applicant entered with any intent to commit an offence. This was very fortunate for the applicant as clearly he entered intending to abduct Ms Saliba, in that they intended to force her to accompany them. 34 The applicant referred to decisions of this Court considering sentences imposed for similar charges. In R v Millar [2005] NSWCCA 202 the sentencing judge found the offence to be considerably below mid range. In R v Price [2005] NSWCCA 285 the judge found the offence fell "quite away below" mid range. In Ngati v R [2008] NSWCCA 3 the sentencing judge made a similar finding. But these are all decisions based upon their own facts. They do not inform the Court about the Judge's finding in this particular case. 35 In any event, this Court will not usually interfere with a finding by a sentencing judge as to the objective seriousness of an offence: see Mulato v R [2006] NSWCCA 282. In my opinion it was open for the Judge to find it was mid range, but it was at the lower end of that range. 36 In the present case the non-parole period was a result of the Judge finding that a discount of 25 per cent applied for the plea. The subjective case of the applicant was that he was young, with little criminal record, he had a drug and alcohol problem that had not brought him into conflict with the law to any significant degree and there were good prospects of rehabilitation. The non-parole period was 50 per cent of the total sentence, no doubt as a result of the subjective factors. 37 In my opinion, having regard to all the relevant circumstances of the offending and the subjective features, a head sentence of 6 years was excessive even if the offence was just within the mid range of seriousness. It meant a starting sentence before discount of 8 years. As the Judge found, the offending was a result of the applicant's intoxicated state rather than a reflection of his true character. He had no earlier offences for violence and Fisher was clearly the principal in the enterprise. In my opinion the appropriate starting sentence is 6½ years that should be then reduced by 25 per cent. I have rounded out the figures particularly taking into account that the applicant is getting the benefit of a non-parole that is 50 per cent of the total term. 38 There have been affidavits filed on behalf of the applicant in case the Court was required to resentence the applicant. The applicant has been doing courses while in prison and learning some skills. The contents of the affidavits support his Honour's conclusion as to the applicant's prospects of rehabilitation. They justify a finding of special circumstances. 39 I propose the following orders.

[2005] NSWCCA 285

[2008] NSWCCA 3

[2006] NSWCCA 282