Adnan Abdallah v Regina

[2006] NSWCCA 90

CITATION:	Adnan ABDALLAH v REGINA [2006] NSWCCA 90
HEARING DATE(S):	Friday 24 March 2006
JUDGMENT DATE:	31 March 2006
JUDGMENT OF:	Hidden J at 1; Kirby J at 14; Hislop J at 15
DECISION:	Leave granted, appeal dismissed.
CATCHWORDS:	CRIMINAL LAW: Application for leave to appeal against sentence - three counts of receiving - matters on Form 1 - large amount of property - offender in his fifties - prior good character - whether full time custodial sentence appropriate
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Phillips (CCA, unreported, 11 December 1991)
PARTIES:	Adnan ABDALLAH (applicant) REGINA (respondent)
FILE NUMBER(S):	CCA 2005/2558
COUNSEL:	Miss N Mikhaiel (applicant) Mr L Lamprati SC (respondent)
SOLICITORS:	Jack Rigg (applicant) S Kavanagh - Solicitor for Public Prosecutions (respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0958
LOWER COURT JUDICIAL OFFICER:	Andrew ADCJ

2005/2558

HIDDEN J
KIRBY J
HISLOP J

Friday 31 March 2006

Adnan ABDALLAH v REGINA

Judgment

1 HIDDEN J: The applicant, Adnan Abdallah, pleaded guilty in the District Court to two counts of receiving stolen property (s188 of the Crimes Act) and a count of receiving property stolen outside the state of New South Wales (s189A of the Crimes Act). Both offences carry a maximum sentence of imprisonment for ten years. He also asked the sentencing judge to take into account on a Form 1 a further offence under each of those provisions. In due course, the learned sentencing judge sentenced him on each count to concurrent terms of imprisonment for two and a half years, comprising a non-parole period of eighteen months and a balance of term of twelve months, dating from 19 July 2005. His Honour took the Form 1 matters into account when sentencing on the third count (receiving property stolen outside New South Wales). He seeks leave to appeal against those sentences.

Facts

2 Before his Honour was a comprehensive statement of facts relating to the three counts in the indictment and one of the matters on the Form 1, as follows:

Count 1
On 15 September 2002 a Mack truck, registered no. VSU-763, with trailer, registered no. K.28593, attached was stolen from the yard of Trojan Transport Services Pty Limited at 12-18 Burrows Road, St Peters.
The trailer was then carrying a container which had 298 range hoods valued at $USD 41,746.32 inside. The range hoods were to be delivered to their owner, Parex Industries Pty Limited, at 7 Bennelong Road, Homebush.
During the early hours of 16 September 2002 the stolen truck, trailer and container were located by police in Broadford Street, Bexley. The range hoods had been removed from the container and were missing.
Sometime after the theft and before 11 December 2002 the offender received approximately 200 of the stolen range hoods knowing at the time when he so received them that they were, in fact, stolen.
On 11 December 2002 police found the stolen range hoods received by the offender in a truck parked at his residence at 32 Northbrook Street, Bexley.
ERISP interview on 11 December 2002
On 11 December 2002, during an ERISP interview conducted by Detective Senior Constable Heaney the offender claimed, amongst other things, that a man named Issa offered the range hoods to him for $150 each, that they would be sold for $250 each but only on consignment, he collected them on the evening of 10 December 2002 and was going to arrange to sell them to builders for about $300 each. He went on to say that he had no suspicions about the range hoods.
ERISP interview on 8 May 2003
On 8 May 2003, during an ERISP interview conducted by Detective Senior Constable Heaney the offender claimed, amongst other things , that in November 2002 a man named Kassar gave him two range hoods as a sample and told him there were approximately 225 range hoods for sale in one container and, further, that an unexpected delivery of some of the range hoods was made to the factory of a friend, Zac Bazzi, at 19 Arncliffe Street, Arncliffe before he had agreed on any deal with Kassar.
The offender also claimed he telephoned a man named Issah Andrwas who acted as an intermediary for Kassar and discussed with him prices for the range hoods and that later he and Andrwas agreed that he, the offender, could buy the range hoods at a price of $330 per unit.
The offender stated he paid Andrwas a deposit of $10,000, stored the range hoods at Bazzi’s Arncliffe factory and 8 to 10 days prior to his arrest moved them to the premises of Millers Self Storage at Kingsgrove.
Count 2
Between 6.30pm on 26 July 2002 and 8am on 27 July 2002 prime mover, registered no. UTE-273, with a trailer attached, was stolen from the yard of John O’Donnell trading as J. O’Donnell Customs Brokers at 10 Ocean Street, Banksmeadow.
The trailer was then carrying a container which had approximately 13,000 turkish style rugs valued at $73,354.48 inside. The rugs were to be delivered to their owner, Phrear Rugs Pty Limited, at 38 O’Dea Street, Waterloo.
One week later the stolen prime mover, trailer and container were located in the Wiley Park area. The rugs had been removed from the container and were missing.
Sometime following the theft and 9 December 2002 the offender received 10,482 of the stolen rugs knowing at the time when he so received them that they were, in fact, stolen.
On the afternoon of 9 December 2002 the offender was observed by police to drive a truck registered no. YJS-201 containing a quantity of the stolen rugs from 19 Arncliffe Street, Arncliffe to the premises of Millers Self Storage at 21-31 Commercial Road, Kingsgrove.
Later, with the help of a number of other men, the offender unloaded the stolen rugs and placed them in storage units at those premises.
Later that afternoon the offender was observed by police driving another truck registered no. WKF-726 containing a quantity of the stolen rugs from Farrell Road, Kingsgrove to the Kingsgrove premises of Millers Self Storage.
Shortly afterwards with the help of a number of other men the offender unloaded the stolen rugs and placed them in storage units within those premises.
On 11 December 2002 during a search of the storage units police found 10,482 of the stolen rugs.
ERISP interview on 11 December 2002
During an ERISP interview with Detective Senior Constable Heaney on 11 December 2002 the offender claimed, amongst other things, that in August 2002, he and his business colleague, Harry Diadakis, had agreed to pay $40,000 but had only paid $30,000 for the rugs and that when he picked them up on the evening of 10 December 2002 he held no suspicions about them.
ERISP interview on 8 May 2003
On 8 May 2003, during an ERISP interview conducted by Detective Senior Constable Heaney the offender claimed, amongst other things, that a man named Kassar offered him about 12,300 rugs for $120,000 and gave him about 10 to 14 of the rugs as samples.
He stated that by late August or early September 2002 he and Kassar had agreed that he would buy the rugs for $110,000 upon payment of a deposit of $20,000, that after a further payment to Kassar of $40,000 the rugs were delivered to him, that either late October or early November 2002 he moved the rugs to Zac Bazzi’s Arncliffe factory and later with the help of his workers moved them from that location.
He went on to say that upon learning that only about 10,350 rugs had been delivered to him and not 12,300 rugs as had been agreed he had an argument with Kassar whereupon it was resolved that $10,000 would be deducted from the balance owing.
He repeated that he had no suspicions about the rugs.
Count 3
Between 7pm on 18 July 2002 and 6.10am on the following day, 19 July 2002, a prime mover towing a shipping container which held 580 sets of Airport brand luggage was stolen from the yard of the firm of T J Flood Transport at Sudholz Street, West Melbourne. The sets of luggage were destined for delivery to their owner, DLI Australia Pty Limited trading as “Airport Luggage”, at that company’s premises in Melbourne.
Subsequently on 21 July 2002 the prime mover and container were located by police in Mickleham Road, Greenvale, Victoria. The luggage had been removed from the container and was missing.
Sometime following the theft and 22 April 2003 the offender received 147 sets of the stolen luggage, subject of the present count, knowing at the time when he so received them that they were, in fact, stolen.
About 2.35pm on 22 April 2003 an undercover police officer who was posing as a potential purchaser of luggage telephoned the offender. The offender told him he had 150 sets of Airport brand luggage which he had to get rid of and offered to sell them to him at $70 per set.
Later that day during a further telephone conversation the offender offered to sell 150 sets of the stolen luggage at $70 per set provided there was no paperwork required as evidence of the sale.
During telephone conversations had on 28 April 2003 the offender told the undercover police officer that the truck he was delivering the luggage in could only hold 105 sets and arranged to deliver those to him at the premises of Millers Self Storage in Bourke Street, Waterloo on the following day, 29 April 2003.
During telephone conversations on 29 April 2003 the offender and the undercover officer agreed to meet at the storage unit shortly after 1.20pm that day.
About 1.30pm on 29 April 2003 the offender drove a truck containing 105 sets of the stolen luggage to the premises of Millers Self Storage at Bourke Street, Waterloo. The offender shortly afterwards took one of the sets of luggage from the truck and showed it to the undercover officer.
Other police then approached and arrested the offender. The 105 sets of luggage are subject to the offence itemised at no. 1 on the Form 1.
On 30 May 2003 147 sets of the stolen luggage, subject of the present count, were found by police in storage units B61 and B62 which were then being rented by the offender at the premises of Millers Self Storage at Tempe. Each set of luggage had a wholesale value of $105 and a retail value of approximately $230.
ERISP interview
On 2 June 2003, during an ERISP interview conducted by Detective Senior Constable Hawkins, the offender claimed, amongst other things, that he bought the 147 sets of stolen luggage from a company called Charek Pty Limited after negotiating with two men named Albert Sansour and Garry Leioutis and that the luggage was delivered to him by Leioutis in the first week of March 2003 after he had paid $100 per set by way of a post-dated cheque.
He asserted that he only knew the luggage was stolen following his arrest on the 29 April 2003 in connection with the receiving of the 105 sets of Airport brand luggage (subject of the offence itemised at no. 1 on the Form 1) and did not tell the arresting police he had the 147 sets of luggage, subject of the present count, in his possession because he and his family had been threatened by Leioutis and also because he was trying to set Leioutis up for the police.

3 Clearly, by his pleas of guilty the applicant abandoned any assertion to the police that he had come by the goods innocently. He borrowed substantial sums of money to buy the goods, and it should be noted that all the property the subject of the charges was recovered. The statement of facts makes no reference to the second matter on the Form 1, being the receiving of 821 boxes of adult incontinence pads (of undisclosed value) in March 2003. No doubt, an elucidation of the circumstances of that offence would have little bearing upon the assessment of the applicant’s criminality.

Subjective case

4 It can fairly be said that, subjectively, this case is as sad as it is puzzling. The applicant was fifty-two years old at the time of the offences, and is now fifty-five. His criminal history is confined to an entry in 1975 for a minor offence of an entirely different nature, which is of no present significance. The sentencing judge treated him as a man of prior good character, and there were several testimonials to that effect.

5 He was born and brought up in Liberia, and came to this country in 1975. At the time of sentence he had been married for twenty-eight years. He has four children, three of whom are adults. Not long before sentence he and his wife had separated, but his family remained supportive of him. He had a creditable employment history, both in Liberia and in this country, and for some years before his arrest had conducted his own importing and wholesaling business.

6 After his arrest he was unable to repay the money he had borrowed to buy the goods he received. In due course he was declared bankrupt, and he lost his home and business. He was threatened by some of his creditors.

7 There were in evidence reports by his general practitioner, and by Associate Professor Susan Hayes and Dr Christopher Lennings, psychologists. From that material it emerges that he spent about a week in custody before being released on bail, and upon his release he suffered a “nervous breakdown.” He was severely depressed and became dependant upon prescribed medication. He underwent surgery for kidney cancer, which appears to have been successful, although a recurrence of the condition could not be ruled out. These developments were disruptive not only of his own life, but also of that of his family.

8 However, by the time he appeared for sentence he had moderated his use of drugs and had obtained employment. The sentencing judge found him to be remorseful, and to have prospects of rehabilitation such that it was unlikely that he would re-offend. His Honour recognised his pleas of guilty by a twenty percent reduction of the sentence he would otherwise have passed. As is apparent from the structure of the sentence, he found special circumstances.

The application

9 Counsel for the applicant, Ms Mikhaiel, submitted that his Honour had placed undue emphasis upon the objective seriousness of the offences and afforded insufficient weight to the applicant’s subjective case. She argued that the appropriate outcome should have been a term of periodic detention, for which he had been assessed as suitable.

10 It is clear from the remarks on sentence that his Honour was moved by the applicant’s subjective circumstances and imposed the sentence he did with a heavy heart. His Honour’s process of reasoning is encapsulated in the following passage from the remarks:

He is not regarded from (sic) suffering from any diagnosed psychological or psychiatric disorder and has recently returned to work, but he is regarded as having sparse psychological and coping resources and I do regard any sentence of imprisonment at his age and in his condition, which is regarded as fragile, as involving particular hardship and suffering.
All these subjective circumstances are taken into account, but objectively this was organised, premeditated, and repeated criminal activity which contributes to the prevalence in the community of the crime of theft. The degree of criminality is increased by further receiving offences in the Form 1.
I have considered all possible alternatives to imprisonment pursuant to s5(1) of the Crimes (Sentencing Procedure) Act but due to the objective seriousness of the offences I consider that no penalty other than fulltime imprisonment is appropriate.

11 His Honour had earlier referred to decisions of this Court dealing with the offence of receiving, including R v Phillips (CCA, unreported, 11 December 1991). It is unnecessary to re-examine those cases. The serious view which courts have long taken of the offence was restated by Lee AJ in Phillips. Ms Mikhaiel referred us to Judicial Commission statistics for the higher courts which disclose that many cases of receiving have been dealt with otherwise than by full time custodial sentences. The present case, however, is one of receiving on a fairly grand scale, of an order which does not commonly come before the courts.

12 The evidence does not disclose why the applicant became involved in this serious and sustained criminal activity. Whatever the reason was, it is sad indeed to see a man of his age, background and achievements brought so low. Nevertheless, the observations of the sentencing judge quoted above are entirely apposite and disclose no error. The effective sentence which was imposed affords appropriate weight to the fact that the property was recovered and to the applicant’s subjective case.

13 I would grant leave to appeal but dismiss the appeal.

14 KIRBY J: I agree with Hidden J.

15 HISLOP J: I agree with Hidden J

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