Al Saadi v The Queen

[2017] NSWCCA 110

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Al Saadi v R [2017] NSWCCA 110
Hearing dates:	17 March 2017
Decision date:	26 May 2017
Before:	Macfarlan JA at [1]; Latham J at [2]; Campbell J at [29]
Decision:	Leave to appeal refused
Catchwords:	CRIMINAL LAW - appeal against sentence - whether the sentencing judge failed to give an adequate discount for the plea - whether the sentence was disproportionate to the applicant's role in the offence - whether the judge erred in assessing the objective seriousness of the offending - leave to appeal refused
Legislation Cited:	Crimes Act 1900 (NSW) s 86 Crimes (Sentencing Procedures) Act 1999 (NSW) ss 22, 23
Cases Cited:	R v Thompson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Dib [2003] NSWCCA 117 R v Robert Borkowski [2009] NSWCCA 102; 197 A Crim R 1 R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 580 R v Cartwright (1989) 11 NSWLR 243 R v XX [2017] NSWCCA 90
Category:	Principal judgment
Parties:	Mohammad Bara Al-Saadi (Applicant) Regina (Crown)
Representation:	Counsel: A Radojev (Applicant) S Hughes (Crown)     Solicitors: Harb Lawyers (Applicant) Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2014/189604
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 16 September 2016 Before: Culver DCJ File Number(s): 2014/189604

Judgment

1. MACFARLAN JA: I agree with Latham J.

2. LATHAM J: The applicant seeks leave to appeal against a sentence imposed upon him on 19 September 2016 with respect to one count of specially aggravated detain for advantage whilst in company and inflicting actual bodily harm, pursuant to s 86(3) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 25 years imprisonment.

3. The applicant pleaded guilty on 26 July 2016 and undertook to give evidence against a co-accused. The offer of assistance and the necessity to sentence the applicant before providing that assistance required the sentencing judge to deliver ex tempore remarks on 16 and 19 September 2016. This feature of the sentencing proceedings assumes some significance for the purposes of this appeal.

4. The applicant was sentenced to 3 years and three months imprisonment, including a non-parole period of one year, seven months and 15 days. This sentence was imposed following the application of a combined discount of 35%, reflecting a 10% discount for the utilitarian value of the guilty plea and 25% for future assistance.

The Offence

5. The applicant was sentenced on the basis of agreed facts.

6. On 11 June 2014 the victim, a 16-year-old male, was persuaded to leave his home to meet with the applicant (who was then 20 years of age), his co-accused Jafar (who was also then 20 years of age) and another 16-year-old male. The victim was persuaded to enter a vehicle, driven by Jafar, and taken to an isolated location at the end of the Georges River Road in Lansvale. In the course of the journey the victim was questioned a number of times about his statements to others regarding an association of Sunni males known as “313”. Jafar, the applicant and the juvenile were members of this group.

7. The three males and the victim left the vehicle and walked along a path to the river, whereupon Jafar began to strike the victim. Each of the three males made derogatory comments about the victim. Ultimately, Jafar grabbed the victim by the back of his neck and kneed him to the face. The applicant and the juvenile commenced punching the victim to the face and body. The applicant and Jafar then began kicking the victim to the face and body. The applicant described kicking the victim between 20 and 30 times as hard as he could. The applicant grabbed the victim by the back of his hooded jumper so that it was against the front of his throat. At this point the victim was threatened that they would throw him into the water.

8. The juvenile joined in the assault upon the victim and restrained the victim’s legs whilst the applicant and Jafar struck the victim to his body with tree branches. Jafar then held a lit cigarette against the victim’s body, resulting in burns to the back of his left hand, left middle finger and shoulder. These assaults took place over the course of half an hour to an hour.

9. The victim was conveyed to the apartment of an acquaintance of the co-accused Jafar where he was allowed to clean and treat his injuries. Jafar then drove the victim close to his house and allowed him to leave the vehicle saying “[d]on’t dare snitch; make up a story or you are dead”.

10. As a result of these assaults, the victim was ultimately treated at hospital on 12 June 2014 in relation to a number of head injuries, scalp abrasions, left periorbital swelling and bruising and a left eye subconjunctival haemorrhage. The victim also suffered intranasal haematoma and multiple lip lacerations. There was a mildly displaced nasal bone and an undisplaced fracture of a bone in the left shoulder.

11. The applicant was arrested on 26 June 2014 and interviewed by police. He admitted to his participation in the events described above.

The Grounds of Appeal

12. Three grounds of appeal were pressed. They were expressed in the following terms:-

1. The judge failed to give the applicant adequate discount in respect of the offence considering the assistance offered to the Crown by way of the applicant giving evidence at the trial of his co-accused.

2. The sentence was, in all the circumstances, disproportionate to the applicant’s role in the offence.

3. The judge erred in concluding that the offending conduct was as objectively serious as stated in the remarks on sentence.

13. The applicant’s counsel conceded that grounds (2) and (3) should be dealt with together, since the applicant’s role in the offence was linked to the assessment of its objective gravity.

The Extent of the Discount

14. This ground was argued by reference to the 10% discount identified by her Honour as appropriate to the utilitarian value of the plea. The applicant now asserts that the utilitarian benefit was greater than 10% because the timing of the plea allowed the Crown to make use of the applicant’s evidence in the trial of the co-accused. It is then submitted that the utilitarian value of the plea is thus twofold, that is, it should reflect the benefit to the criminal justice system flowing from the applicant’s plea and the benefit derived by the Crown from the applicant’s evidence against the co-offender.

15. This is an audacious submission that finds no support in authority and runs counter to the distinction between the discount attributable to the utilitarian value of a plea of guilty and the discount attributable to the provision of assistance by an offender. That distinction, and the factors to which a court must have regard for the purposes of determining the extent of the discount on each basis, is reflected in separate statutory provisions in the Crimes (Sentencing Procedure) Act1999, namely, s 22 and s 23.

16. The policy reasons underlying the respective discounts are entirely distinct. The former is based upon “the collateral benefits for the efficiency and effectiveness of the criminal justice system as a whole”: per Spigelman CJ in R v Thompson and Houlton [2000] NSWCCA 309 at [115]. It is the timing of the plea that invariably drives the assessment of the discount: Regina v Dib [2003] NSWCCA 117; Regina v Stambolis [2006] NSWCCA 56 (2006) 160 A Crim R 510; R v Robert Borkowski [2009] NSWCCA 102.

17. The latter reflects the common law which has long recognised the public interest in offenders being encouraged “to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information”: R v Cartwright (1989) 17 NSWLR 243 at 252. An extensive consideration of the history of s 23 was undertaken in R v XX [2017] NSWCCA 90 by Beech-Jones J (Bathurst CJ and R A Hulme J agreeing), confirming the policy underlying the common law’s approach to assistance to the authorities.

18. The adoption of the applicant’s submission would result in an impermissible form of double dipping. The applicant ultimately submits that the “proper discount” for the plea ought to have resulted in a combined discount of 40% -45%.

19. Leaving to one side the complete lack of merit in these submissions, counsel who appeared on sentence also appeared on the hearing of the appeal in the knowledge that he had urged upon her Honour Judge Culver on sentence a combined discount of 35% in lieu of the combined discount of 30% pressed by the Crown. The applicant received the benefit of the combined discount advanced by his counsel, who now seeks to traverse it. I see no reason why the applicant should not be bound by his counsel’s conduct below.

20. I would refuse leave to rely upon this ground.

The Applicant’s Role in the Offence and its Objective Gravity.

21. The thrust of the applicant’s submission on these grounds is that whilst her Honour correctly recognised that the applicant played a subordinate role to that of Jafar (“the ringleader”), her Honour’s assessment of the objective gravity of the offence was erroneously influenced by the infliction of cigarette burns by Jafar to the victim’s body.

22. The applicant’s counsel submitted on the hearing of the appeal that in the absence of evidence to suggest that the applicant knew that Jafar would inflict injuries of that nature, the finding that the offence objectively fell “in the upper end of the midrange” was not warranted.

23. As to this last submission, it must be observed that the applicant was sentenced on the basis that he participated in a joint criminal enterprise to detain and inflict harm upon the victim. As a participant, he was culpable for all of the acts carried out in the course of the enterprise, whether at his own hands or at the hands of the others. The applicant’s counsel said that he did not cavil with that observation. Yet the submissions advanced on these grounds suggest that the infliction of the cigarette burns was somehow outside the scope of the joint criminal enterprise. No such submission was advanced before her Honour, nor could it have been without traversing the applicant’s plea.

24. Apart from relating the agreed facts, which included a reference to the cigarette burns, her Honour made a series of references to those particular injuries when dealing with the objective gravity of the offence. Her Honour observed that the victim was “injured across multiple planes and areas of his body and head through the infliction of various types of injuries using not just hands and feet, but also tree branches and a cigarette.” Next, her Honour observed that “the violence involved an aspect of cruelty insofar as a lit cigarette was applied to the victim’s body in a couple of places.”

25. Shortly thereafter, the judge said “the cruelty of which I have spoken adds a more sinister nature to the offence committed against this 16 year old victim.” The next reference to a cigarette being applied to the victim’s body occurred in the context of summarising a Crown submission.

26. These remarks are entirely justified and appropriate. There is no basis to the submission that the particular conduct of Jafar in inflicting cigarette burns upon the victim unduly elevated the assessment of the objective gravity of the offence. Notwithstanding the fact that the sentencing remarks were delivered ex tempore, they demonstrate a thorough and considered approach to all the objective and subjective factors.

27. I would refuse leave to rely upon these grounds.

28. In my view, leave to appeal ought be refused.

29. CAMPBELL J: I agree with Latham J.

Decision last updated: 26 May 2017