Assi v The Queen (No 2)

[2016] NSWDC 268

District Court

New South Wales

Medium Neutral Citation:

Assi v R (No 2) [2016] NSWDC 268

Hearing dates:

29 January 2016

Date of orders:

29 January 2016

Decision date:

29 January 2016

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Appeal allowed

 

Sentences passed by McManus LCM sitting in the Local Court at Burwood on 10 December 2014 set aside

 

Sequence 1:

 

Appellant to enter a s 9 good behaviour bond for a period of 3 years

 

Sequence 2:

 

Appellant sentenced to imprisonment for a period of 15 months with a non-parole period of 12 months

 Sentence to be served by way of home detention

Catchwords:

CRIMINAL LAW – Severity appeal – Dishonestly obtain financial advantage, $137,819.70, by deception (sequence 1) – Dishonestly obtain financial advantage, $183,066.79, by deception (sequence 2) – Whether home detention appropriate – Since sentenced in Local Court appellant’s health has worsened – Anticipating spinal surgery – Appellant principal carer of his 88 year old mother – Assistance provided to authorities significant and created real risk to the safety of the appellant and his family – Full-time custody would increase risk to appellant’s personal safety

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Assi v Regina [2015] NSWDC 343

Category:

Principal judgment

Parties:

Jihad Muhieddine Assi (Appellant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Mr G Harrison (Appellant)
Solicitor for the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2014/16612

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Kogarah Local Court

Jurisdiction:

Criminal

Date of Decision:

10 December 2014

Before:

McManus LCM

File Number(s):

2014/16612

Judgment

1. HIS HONOUR: This is an appeal against the severity of sentences passed by Magistrate McManus sitting in the Local Court at Kogarah on 10 December 2014. The background to the matter can be ascertained from my decision in Assi v Regina [2015] NSWDC 343 which concerned the appellant’s application for leave to appeal from the refusal of the Local Court to him to withdraw his pleas of guilty. That application was dismissed. The judgment to which I have just referred records that dismissal but importantly sets out the background of the case.

2. The matter came back before me for the sentencing appeal on 6 December 2015 at Darlinghurst when further documentary evidence was tendered, namely an up to date pre-sentence report dated 2 November 2015, a report of Dr Nielssen of 6 November 2015 and a certificate of Dr Shoshana Espinosa bearing date 5 November 2015. Viva voce evidence was also called from a member of the New South Wales constabulary and a documentary exhibit was tendered which was marked exhibit 13. The evidence of the member of the New South Wales constabulary was given in closed court and there is a suppression order on the contents of exhibit 13. At the conclusion of that day I made an order pursuant to s 78 of the Crimes (Sentencing Procedure) Act 1999 directing Community Corrections to prepare an assessment of the appellant’s suitability for home detention. I then adjourned the matter until today. This morning the Crown tendered a home detention assessment made by the Department of Corrective Services bearing the date 23 January 2016 which has been marked as exhibit 14. The appellant has been assessed as suitable for a home detention order. The terms and conditions of such an order have been explained to him and he has signed a home detention undertaking pursuant to s 78(d) of the Crimes (Sentencing Procedure) Act 1999.

3. The learned Magistrate in respect of the sequence one offence namely obtaining a financial advantage of $137,819.70, sentenced he appellant to 12 months imprisonment and fixed an eight month non-parole period. However the sentence was to commence on 9 December 2014. In respect of the sequence two offence the Local Court imposed a sentence of 15 months imprisonment and fixed a non-parole period of ten months that sentence to commence on 8 August 2015. In effect the appellant was sentenced to a head sentence of two years and three months with a non-parole period of 18 months.

4. Since those sentences were passed much more evidence has been obtained. The appellant is in poor health, he has a low back problem and is anticipating undergoing spinal surgery for that complaint. He also suffers from depression and anxiety and there is a mental health assessment and plan report made by the local health authority. The appellant has also been complaining of a neck pain and there is a diagnosis of degenerative cervical spine disease, usually referred to as cervical spondylosis. It has been ascertained that the appellant is also the main carer for his mother who was now either 87 or 88 years old and suffers from multiple medical problems and requires the appellant’s assistance for almost two hours almost every day. Although the pre-sentence report of 2 November 2015 tells me that the appellant’s medical problems preclude him from working, it is clear from the most recent assessment that he is in fact working for three days a week, Monday, Wednesday and Friday between 8.30am and 2pm and is regarded as a part-time permanent worker.

5. Of greater moment, perhaps, is the assistance which he has given to authorities but before I refer to that I should briefly comment on Dr Olav Nielssen’s report of 6 November 2015 following upon his interview with the appellant on 2 November 2015. Dr Nielssen has diagnosed an anxiety disorder, either a panic disorder or a post-traumatic stress disorder, although the doctor does not use the disjunctive conjunction but the conjunctive conjunction. He also refers to the appellant’s having a depressive illness. In his opinion Doctor Nielssen said this:

“Factors contribute to having become depressed include a possible inherited vulnerability to depression, the effect of war related trauma during his late childhood and adolescence, the effect of chronic pain arising from failed back surgery and most of all the effect of the financial losses and bankruptcy, and criminal charges arising from his association with Mr Lazar.

Mr Assi will be able to continue treatment with escitalopram for anxiety and depression in custody, and may require a higher dose of that medication. Based on the accounts of other prisoners, he would be unlikely to receive much in the way of counselling or psychological treatment for his psychiatric disorder, as the resources for counselling are limited and chronic anxiety disorder would be considered a low priority in the prison setting.

Mr Assi’s main difficulty would appear to be related to his physical health, as he reported symptoms of sciatica, or compression of the spinal nerve supply, the sciatic nerve of the lower leg, for which it would appear to require fairly urgent surgery to prevent permanent loss of function. He will be likely to experience significant delays in receiving treatment for that condition if he were taken into custody at this point.”

In the following paragraph the psychiatrist points out difficulties which the appellant might experience if he were threatened with violence when he was in custody.

6. It is completely inappropriate form to refer in open court to the assistance that the appellant has given to authorities. Clearly his motivation to do that has been the sentencing hearing. However, it is clear that the assistance which he has given has been of significant value and as a result there is a real threat not only to the appellant’s personal safety but also to the safety of other members of his family. Suffice it to say that I am persuaded on the oral evidence of the member of the New South Wales Police Force given at Darlinghurst that if the appellant were admitted to full-time custody in a Corrective Services institution there would be a grave risk to his person.

7. The extent of the money which the appellant obtained by reason of his fraud was large. Clearly a custodial sentence of one form of another is called for. That is common ground. However I accede to the proposition, which is not opposed by the Crown, that both general and personal deterrence and retribution will be fully provided for in a sentence of home imprisonment.

8. For those reasons I set aside the sentences passed by the Magistrate McManus sitting in the Local Court at Kogarah on 10 December 2014. In respect of sequence 1 I order the offender to enter into a good behaviour bond for a period of three years from today. Conditions apply during the term of the bond are as follows:

1. to appear before the Court if called upon to do so at any time;

2. to be of good behaviour;

3. to reside at [redacted];

4. to advise the Registrar of the Court by pre-paid post of any change of residential address;

5. to accept the supervision of and obey all reasonable directions of the Probation and Parole Service during the term of the bond.

9. Mr Assi would you stand up please. In respect of sequence two, I am satisfied of the matters mentioned in s 78 of the Crimes (Sentencing Procedure) Act 1999. I have had regard to the contents of the assessment report on you and I am satisfied the assessment report states the opinion that you are a suitable person to serve the term of imprisonment by a way of home detention. I order that you be imprisoned for a period of 15 months. I fix a non‑parole period of 12 months, I order that the sentence by served by way of home detention.

10. Mr Assi I am required to tell you that once you have signed the s 9 bond in the Registry you are to proceed home directly. My Associate is required to telephone Corrective Services to tell them that you are now subject to the home detention order, do you understand? So as soon as you sign the bond go straight home.

11. APPELLANT: Thank you.

12. HIS HONOUR: You may be seated Mr Assi. I again direct exhibit 13 be sealed again and not to be opened by anyone except by me or by a judge of the Court of Criminal Appeal. There are no loose ends to be covered up are there gentlemen?

13. CURRAN: The only loose end I suppose is the other orders of the Magistrate which are the compensation matters, it’s a matter of discretion for the Court whether it will do any good or not is another thing, I’m not really sure of the current circumstances between him and the bank and what his current bankruptcy situation is.

14. HIS HONOUR: I think the Commonwealth can sort that out. I don’t know whether the bankruptcy provisions override the order for compensation, probably would I suspect.

15. CURRAN: I ask this, really all those orders are basically judgment debts in effect.

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Decision last updated: 26 October 2016