Awit v The Queen

[2008] NSWCCA 321

New South Wales
Court of Criminal Appeal

CITATION:	Awit v R [2008] NSWCCA 321
HEARING DATE(S):	22 September 2008
JUDGMENT DATE:	18 December 2008
JUDGMENT OF:	Beazley JA at 1; Hislop J at 2; Price J at 37
DECISION:	Grant leave to appeal; allow the appeal in part; quash the sentence on count 4 and in lieu thereof sentence the applicant on count 4 to imprisonment for a non parole period of 4 years commencing on 8 December 2005 and expiring on 7 December 2009 with a further period of imprisonment of three years to commence on 8 December 2009 and expire on 7 December 2012. The earliest date on which the applicant will be eligible for release to parole is 7 December 2009.
LEGISLATION CITED:	Crimes Act, 1900 Crimes (Administration of Sentences) Regulation, 2008
CASES CITED:	R v Hoar (1981) 148 CLR 32 R v Altham (1992) 62 A Crim R 126 GAS v R [2004] HCA 22; (2004) 217 CLR 198 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
PARTIES:	Adam Awit v R
FILE NUMBER(S):	CCA 2007/2839
COUNSEL:	N. Mikhaiel (Applicant) P. Calvert (Crown)
SOLICITORS:	Catherine Hunter (Applicant) Solicitor for Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0861
LOWER COURT JUDICIAL OFFICER:	Solomon DCJ
LOWER COURT DATE OF DECISION:	16 February 2007

2007/2839

BEAZLEY JA
HISLOP J
PRICE J

Thursday 18 December 2008

ADAM AWIT v R

Judgment

1 BEAZLEY JA: I agree with Hislop J.

2 HISLOP J:

Introduction

On 1 December 2006 the applicant pleaded guilty to the following charges:

“1. Between 1 March 2002 and 14 September 2002 at Sydney and elsewhere in New South Wales…did conspire with [others] to maliciously damage property by fire….
2. On 20 August 2003 at Alexandria…maliciously damaged property by fire…
3. Between 10 October 2004 and 4 December 2004 at Sydney…did conspire with [others] to maliciously damage property by fire…
4. Between 10 October 2004 and 4 December 2004 at Sydney…did conspire with [others] to maliciously inflict grievous bodily harm upon Andrew Lyons with intent to do grievous bodily harm to the said Andrew Lyons.”

3 The maximum penalty for the substantive offence of maliciously damaging property by fire is 10 years imprisonment (Crimes Act, 1900, s 195(b)) and the maximum penalty for the offence of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm is 25 years (Crimes Act, 1900, s 33).

4 The maximum penalty for conspiracy is at large, however, the substantive offence is usually relied upon as indicating the appropriate maximum penalty for the conspiracy offence: see R v Hoar (1981) 148 CLR 32.

5 His Honour Judge Solomon sentenced the applicant on 16 February 2007 as follows:

Count 1: A non parole period of 3 years commencing on 8 December 2004 and expiring on 7 December 2007 with a further period of imprisonment of 2 years to commence on the expiration of the non parole period and expiring on 7 December 2009.
Count 2: A non parole period of 3 years commencing on 8 June 2005 and expiring on 7 June 2008 with a further period of imprisonment of 2 years to commence on the expiration of the non parole period and expiring on 7 June 2010.
Count 3: A non parole period of 3 years commencing on 8 December 2005 and expiring on 7 December 2008 with a further period of imprisonment of 2 years to commence on the expiration of the non parole period and expiring on 7 December 2010.
Count 4: A non parole period of 4 years commencing on 8 December 2007 and expiring on 7 December 2011 with a further period of imprisonment of 3 years to commence on the expiration of the non parole period and expiring on 7 December 2014.”

The overall effective sentence is thus ten years imprisonment comprising a non parole period of seven years with a balance of term of three years.

6 The applicant has sought leave to appeal against sentence on the grounds that

(i) the learned sentencing judge erred in finding that the applicant’s level in the offending hierarchy was equal to that of his co-offender V;

(ii) the sentence imposed did not adequately reflect the learned sentencing judge’s finding of special circumstances.

The facts

7 An agreed statement of facts was tendered at the sentencing hearing. In essence the relevant facts were:

Gabriel Zakhem was the owner and director of a business involved in the wholesale supply of hairdressing products. V is the uncle of the applicant.

In 2002 Hairmart operated a business in Queensland. The owner of the business purchased a franchise from Zakhem. There was a “falling out” with Zakhem. Zakhem issued instructions to V to have the Hairmart premises destroyed by fire. V asked the applicant to arrange for the premises to be burnt. The applicant enlisted the assistance of a former flatmate and flew with the flatmate to Queensland on 11 September 2002, returning to Sydney at 5.15 pm on Friday 13 September 2002. On 12 September 2002 two men were seen to be looking into the premises at 6.15 pm. At about 1.10 am on 13 September 2002 the Fire Service responded to a report of a fire at Hairmart. The building was damaged in the fire and stock valued at about $135,000 was destroyed [Count 1].

In November 2001 Dateline Imports Pty Limited made a complaint in respect of Zakhem’s business to the New South Wales Office of Fair Trading. Shortly before 20 August 2003 Zakhem instructed V to organise an arson attack on the premises of Dateline. V assessed the nature of the building and reported back to Zakhem. V then contacted the applicant who arranged for the offence to be committed. About 5.30 am on 20 August 2003 the premises were set on fire. The building collapsed and considerable damage was caused to stock and adjoining buildings. About $18 million damage was caused to the building and to stock. Zakhem paid $5000 to V for the job. That money was paid by V to the applicant, who returned some of it as V’s share [Count 2].

In October and November 2004 Andrew Lyons had been in partnership with Gabriel Zakhem and was a director of Beautopia Pty Limited which dealt in hairdressing products and had premises at Chatswood. The partnership between Lyons and Zakhem had “gone sour” and Beautopia was in direct competition with Zakhem’s company. Zakhem told V that he wanted Beautopia put out of business for some months and that he wanted the premises burnt and also wanted Lyons hurt and put in hospital. He said that a baseball bat should be used to injure his legs. V contacted the applicant and they inspected the premises. He reported back to Zakhem that the job would not be easy as there was a concrete roof. The applicant said he would need to get others involved and that the job would cost more money than the previous job. Zakhem agreed to pay $10,000. The applicant enlisted the services of two other men in order to burn the premises. One of those men organised for a third person to injure Lyons. The police were aware of the plan and on the night of 3 December 2004 police officers posed as employees of Beautopia and occupied the premises. Three of the conspirators were arrested at the scene. The applicant was arrested elsewhere on 8 December 2004 [Counts 3 and 4].

Additional factors

8 The applicant’s criminal record included minor drug and traffic offences, one offence of goods in custody and two offences of possessing an unregistered firearm.

9 In respect of count 1 the offence was aggravated by virtue of the fact that the applicant was on conditional liberty, having been placed on a s 9 bond for a period of 2 years on 5 February 2001 in respect of the goods in custody offence. On 9 July 2002 he had been sentenced to six months imprisonment for driving whilst disqualified. The sentence was suspended.

10 In respect of count 2 the offence was aggravated by the substantial damage caused to the premises and the fact that the offences were committed without regard to public safety in that the fire was lit at a time when people were at work in the complex and in adjoining factories and were thus put at risk.

Subjective factors

11 The applicant was born in 1979. His Honour had regard to the following subjective factors: the applicant had a good work record prior to entering into custody and a good work record whilst in custody; he was undertaking courses whilst in custody; he proposed to marry his fiancé upon release from prison; he was well thought of in the community; he had the support of his family; Dr Lonergan had offered him a position upon his release from prison; the applicant’s father committed suicide when the applicant was 30 (sic 20) years of age; prior to his father’s suicide, the applicant did not abuse alcohol and had no substance abuse issues; after the suicide, the applicant resorted to the daily use of cannabis and increased his consumption of alcohol; he became close to V (who was considerably older than the applicant) regarding him as a father figure, and was greatly influenced by him; V used his influence over the applicant to such a degree that the applicant became involved in the offences; his Honour was satisfied that the applicant would not have been involved in the offences had it not been for the influence of V . He accepted that the applicant was truly contrite.

12 The applicant pleaded guilty at the earliest opportunity. His Honour discounted the sentence by 25 percent to reflect the early plea. The applicant was not entitled to any other discounts.

13 His Honour had regard to the fact that there had been a great delay in sentencing the applicant and that he had been in custody since 8 December 2004.

The co-offender

14 V was charged with five offences, three of being an accessory before the fact to maliciously damaging property by fire (the maximum penalty for such an offence is the same as for the substantive offence) (counts 1-3); one count of conspiracy to maliciously damage property by fire (count 4); and one count of conspiracy to maliciously inflict grievous bodily harm with intent (count 5). Two offences of conspiracy to maliciously damage property by fire were taken into account on a Form 1 when V was being sentenced in respect of count 5. V’s criminal record comprised two relatively minor drug offences.

15 V was sentenced in the District Court by a judge other than Solomon DCJ. The Crown appealed against the inadequacy of the sentences imposed. The Court of Criminal Appeal re-sentenced V. The sentences ultimately imposed were as follows: a non parole period of two years commencing on 12 August 2005 and expiring on 11 August 2007 with a balance of term of one year commencing on 12 August 2007 and expiring on 11 August 2008 (count 1); a non parole period of two years commencing on 12 February 2006 and expiring on 11 February 2008 with a balance of term of one year commencing on 12 February 2008 and expiring on 11 February 2009 (count 2); a non parole period of two years commencing on 12 August 2006 and expiring on 11 August 2008 with a balance of term of one year commencing on 12 August 2008 and expiring on 11 August 2009 (count 3); a non parole period of two years commencing on 12 February 2007 and expiring on 11 February 2009 with a balance of term of one year commencing on 12 February 2009 and expiring on 11 February 2010 (count 4); and a non parole period of three years commencing on 12 August 2006 and expiring on 11 August 2009 with a balance of term of two years commencing on 12 August 2009 and expiring on 11 August 2011 (count 5 and taking into account Form 1).

16 V’s sentences reflected a discount of 25 percent for an early plea of guilty and 50 percent for assistance to the authorities, an aggregate discount of 62.5 percent. The Crown did not challenge the discounts on appeal. The aggregate sentence comprised a non parole period of four years with a balance of term of two years.

17 Counts 3, 4 and 5 against V corresponded with counts 2, 3 and 4 against the applicant.

The grounds of appeal

18 There are two grounds of appeal. They are considered separately hereunder:

Ground 1: The learned sentencing judge erred in finding that the applicant’s level in the offending hierarchy was equal to that of his co-offender V

19 In the course of the sentencing hearing on 9 February 2007 counsel for the applicant said, in support of a submission the applicant ought to spend less time in actual custody than V, even allowing for a discount:

“[V] was, if you want to use terminology, [V] was the right hand man for Gabriel Zakhem. This prisoner here is next down the line, he is either a lieutenant, if you want to use that expression, or at the end of the day he is the person at the scene of the crime doing the crime.”

The Crown responded:

“…the Crown presses its submission that whilst this offender is lower, and agreeing with my friend’s submission, this offender is lower down the chain than [V], the huge discount that [V] received is something that this offender is not entitled to…”

His Honour did not comment on either submission at the time.

20 On 16 February 2007, prior to sentencing the applicant, the following exchange occurred:

“HIS HONOUR: …There’s one matter which I would like to resolve before I sentence and I don’t have the transcript of last week, but you put a submission to me in the order of objective criminality, that your client Adam was under that of [V] and I’ve…
KORN: And I don’t understand the Crown to disagree with that.
HIS HONOUR: Just let me finish. I can’t recall what I said in relation to that but my finding will be that he was equivalent to [V] in terms of the objective seriousness of the offence, so I thought I’d better raise that with you, if I had given you any understanding that…
KORN: No.
HIS HONOUR: …I hadn’t [sic] accepted your submissions.
KORN: No you didn’t.
HIS HONOUR: All right, thank you, I wanted to clarify that because that’s my finding.”

21 His Honour then proceeded to sentence the applicant and in the course of his remarks on sentence said:

“I must now consider the question of parity with the sentences imposed on [V], the offender’s co-offender by the Court of Criminal Appeal.”

His Honour, after considering the sentences imposed on V by the Court of Criminal Appeal, continued:

“For the purposes of parity the roles of the offender and [V] must be separately considered. Insofar as count one is concerned, Gabriel Zakhem requested [V] to destroy by fire the contents and premises occupied by GB Hairmart Pty Limited at Southport. [V] requested the offender to arrange for the premises and stock to be destroyed. The offender engaged Carlos Anthony to assist in the destruction of the stock and the property. The offender and Anthony flew from Sydney to Queensland on 11 September 2002. The fire was lit on 13 September 2002 and the stock and the shop was destroyed. The offender’s role was substantial. Not only did he engage Anthony to destroy the property by fire, he also travelled to Queensland with Anthony for the purpose of destroying the property. Insofar as this offence is concerned, I place Zakhem at the top of the hierarchy of criminality with [V] and the offender equally directly beneath him.”

He then made reference to the respective roles of the parties in relation to each of the other offences with which the applicant was charged. In respect of each, he came to the same conclusion as to the hierarchy.

22 His Honour also considered in this context that the applicant’s criminal record was greater than that of V, that V’s sentence had been imposed by the Court of Criminal Appeal on appeal and thus was toward the bottom of the range. He also took into account that the offences were committed over a two year time frame, that they involved a substantial degree of planning and that the victims in respect of counts 1 and 2 suffered substantial financial losses.

23 The applicant submitted the findings as to “hierarchy” were not open to his Honour on the evidence and that his Honour erred in placing the applicant on an equal footing with V in the hierarchy of criminality. It was contended that such a conclusion could not stand with the findings made by his Honour in respect of the relationship between the applicant and V, as to which see [11] above.

24 His Honour’s comments as to “hierarchy” were directed to the objective seriousness of the offences. It is apparent that his Honour considered V and the applicant equivalent in terms of objective criminality. In my opinion, such a conclusion was open to his Honour on the facts of this case. V was engaged by Mr Zakhem to arrange for the various premises to be burnt and for Mr Lyons to be assaulted. V engaged the applicant to arrange for the various premises to be burnt and for Mr Lyons to be assaulted. V assessed at least some of the buildings which were to be targeted and on at least one occasion was paid by Mr Zakhem, which moneys he passed on to the applicant. The applicant arranged for the substantive offences to be committed. He attended to the engagement of those who were to commit those offences, instructed them and engaged in the role of organising the actual commission of the substantive offences. He was a direct participant in at least one of the substantive offences. On at least one occasion he inspected the premises to be burnt with V. He negotiated a higher payment in respect of counts 3 and 4. Both V and the applicant must have been fully aware of the serious criminality of the offences which they caused to be perpetrated.

25 His Honour was not bound by the agreement between the prosecutor and counsel appearing on sentence in making an assessment of the relative seriousness of the roles played by co-offenders: see R v Altham (1992) 62 A Crim R 126, GAS v R [2004] HCA 22; (2004) 217 CLR 198 at [30]-[31]. His Honour had to make his own assessment.

26 In oral submissions counsel for the applicant submitted that in the exchange on 16 February 2007 his Honour did not give an opportunity for the parties to be heard on this issue. I do not agree with this submission. As the applicant’s counsel at the sentencing hearing properly conceded, he was not misled by his Honour at the sentencing hearing on 9 February 2007. His Honour by raising the matter prior to pronouncing sentence on 16 February 2007 afforded the parties the opportunity to put further submissions had they sought to do so. The applicant was represented by experienced counsel who had appeared for him at the sentencing hearing. No request to put further submissions was made.

27 His Honour did not apply strict parity principles in sentencing the applicant. This was appropriate having regard, inter alia, to the different offences with which V was charged, the extremely large discount he received, the effect of V being re-sentenced on a Crown appeal, his lack of a significant criminal record and the fact that the applicant was on conditional liberty when he committed the initial offence. Indeed, there is no marked difference between the individual sentences for the offences charged in common once appropriate adjustments are made for those factors.

28 There was, however, a marked degree of disparity between the overall effective sentences imposed upon V and the applicant. V received an effective aggregate sentence of four years non parole period with a balance of term of two years for five offences (and two offences on a Form 1) whilst the applicant received an effective aggregate sentence of seven years non parole period with a balance of term of three years for four offences. Even after adjustment for the factors referred to in the preceding paragraph, there remains a disparity as a result of the manner in which the sentences were accumulated. That disparity, in my opinion, is such as to require a reduction in the overall effective sentence imposed on the applicant, albeit not such a reduction as to produce a sentence disproportionate to the objective criminality involved.

29 The criminality in this matter was of a high degree, the offences, particularly the second and fourth, were very serious indeed. His Honour, in sentencing the applicant, had regard to all relevant subjective factors, including the relationship between the applicant and V.

30 In my opinion, the sentence on the fourth count should be adjusted by commencing it on 8 December 2005 rather 8 December 2007, with the consequence that the non parole period will expire on 7 December 2009 and the balance of term on 7 December 2012.

Ground 2: The sentence imposed did not adequately reflect the learned sentencing judge’s finding of special circumstances

31 His Honour found special circumstances “for the reason that the offender requires ongoing rehabilitation in the community and for the reason this is the first time the offender is to undertake a full time custodial sentence.”

32 His Honour, in sentencing the applicant, increased the statutory ratio between the head sentence and the non parole period by six months by reason of his finding of special circumstances. This increased the parole period to three years.

33 The applicant submits that despite the finding of special circumstances the sentence imposed demonstrates only a very small and inadequate deviation from the statutory ratio between the head sentence and non parole period and this connotes error on the part of the sentencing judge.

34 The court, in determining the existence of special circumstances and the weight to be given to such a finding, exercises a very broad discretion. In R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [73] it was held:

“The decision [as to special circumstances] is first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive.”

35 The provision of three years on parole to meet the finding by the sentencing judge of the requirement of rehabilitation in the community after release from his first full time custodial sentence is, in my opinion, adequate and well within the sentencing discretion. A longer period of parole would be superfluous as it would be without supervision - Crimes (Administration of Sentences) Regulation, 2008, reg 228(1),

Orders

36 I propose the following orders:

1. Grant leave to appeal;

2. Allow the appeal in part;

3. Quash the sentence on count 4 and in lieu thereof sentence the applicant on count 4 to imprisonment for a non parole period of four years commencing on 8 December 2005 and expiring on 7 December 2009 with a further period of imprisonment of three years to commence on 8 December 2009 and expire on 7 December 2012. The earliest date on which the applicant will be eligible for release to parole is 7 December 2009.

37 PRICE J: I agree with Hislop J.

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