Ayoub, Omran v R; El Masri, Ali v R

[2010] NSWCCA 196

New South Wales
Court of Criminal Appeal

CITATION:	AYOUB, Omran v R; EL MASRI, Ali v R [2010] NSWCCA 196
HEARING DATE(S):	5 May 2010
JUDGMENT DATE:	6 September 2010
JUDGMENT OF:	Hodgson JA at 1; Rothman J at 6; Barr AJ at 64
DECISION:	(i) In each matter, leave to appeal granted; (ii) In each matter, the appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – appeal – sentence – detain for advantage in circumstances of aggravation – relevance of period of detention – significance of circumstances of detention – recitation of factors relevant to determination of objective seriousness is not multi-tier sentencing – failure to find special circumstances not error where no application made – manifest excess – grounds of appeal rejected – appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Andrews v Law Society of British Columbia [1989] 1 SCR 143 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 HAN, Zhi Qiang v R [2009] NSWCCA 300 House v The King [1936] HCA 40; (1936) 55 CLR 499 Jimmy v R [2010] NSWCCA 60 Johnson v R [2004] HCA 15; (2004) 78 ALJR 616 Lowe v R [1984] HCA 46; (1984) 154 CLR 606 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555 R v F [2002] NSWCCA 320; (2002) 132 A Crim R 308 R v Fernando (1992) 76 A Crim R 58 R v Tiddy [1969] SASR 575
PARTIES:	Omran Ayoub (Applicant) Ali El Masri (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/13031; 2007/10523
COUNSEL:	S J Stanton (Applicants) M Cinque (Respondent)
SOLICITORS:	Carters Law Firm (Applicants) Office of the Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/13031; 2007/10523
LOWER COURT JUDICIAL OFFICER:	Neilson DCJ
LOWER COURT DATE OF DECISION:	22 June 2009

2007/13031
2007/10523

HODGSON JA
ROTHMAN J
BARR AJ

6 SEPTEMBER 2010

AYOUB, Omran v R; EL MASRI, Ali v R

Judgment

1 HODGSON JA: I agree with the order proposed by Rothman J and with his reasons. I would add the following, in relation to the contention that the sentences were manifestly excessive.

2 First, the offence with which each appellant was convicted carried a maximum penalty of imprisonment for twenty years.

3 Second, the appellants did not plead guilty and there was no evidence to suggest any remorse.

4 Third, although his Honour did not explicitly find that the appellants did each of the things set out in pars [8] and [9] of his Remarks (set out in Rothman J’s judgment), in my opinion such a finding is implicit in the Remarks, for example the reference in pars [23] of the Remarks to “coercing him to transfer to him his money and other assets”. In my opinion, although his Honour considered the circumstances of the detention as not appearing to have been at all onerous, that view has to be understood having regard to the circumstance that what was done to the victim was sufficient to coerce him into transferring substantial money and other assets.

5 Fourth, there is no suggestion that any money or other assets thus coerced from the victim have been restored or otherwise recovered, or that the appellants have any intention to take any steps towards bringing this about.

6 ROTHMAN J: Omran Ayoub and Ali El Masri (“the appellants”) seek leave to appeal the sentence imposed by the District Court. Each appellant had imposed on him the same sentence (although the commencing date differed by two days) and, unless necessary to distinguish between the appellants, they will collectively be referred to as the appellants in this judgment.

7 The appellants were charged with a contravention of s 86(2)(a) of the Crimes Act 1900 in that they detained for advantage Mr Raymond Zhang (“the victim”) in circumstances of aggravation. The circumstances of aggravation were that the offence was committed in company. Each of the appellants pleaded not guilty and were tried, together, and convicted, after which his Honour Judge Neilson of the District Court sentenced each of them. Each appeals the sentence imposed.

8 Each appellant had imposed upon him a non-parole period of imprisonment of 5 years and 3 months as part of an overall sentence of 7 years. Mr El Masri’s sentence commenced on 17 February 2009 and Mr Ayoub’s sentence commenced on 15 February 2009, the different commencement date taking into account pre-sentence custody.

Grounds of appeal

9 The grounds of appeal pressed for each of the appellants are identical and are in the following terms:

“1. The learned trial judge erred in finding that the case fell below the mid-range of objective seriousness but that it was not a minor or trivial offence on account of the length of detention of the victim and in the circumstances attributed to the length of detention emphasis which was undue and as such, an error of law in relying upon it as a factor to impose the sentence that he did.

2. His Honour erred in calculating that the longer the period of detention, contrary to s.86(2)(b) of the Crimes Act 1900 in respect of which the Appellant was found guilty, was of necessity a factor that rendered the commission of the crime far more serious and as such required him to impose a sentence of greater severity than was warranted in all the circumstances, he having found that the objective criminality fell well below the mid-range level for this offence.

3. The sentence imposed by the learned sentencing judge was in respect of the offence for which the Appellant was found guilty, together with the offence taken into account on the Form 1, manifestly excessive.

4. The learned sentencing judge failed to hold that there were special circumstances and further erred by declining to find special circumstances to adjust the statutory period between the head sentence and the non-parole period, as required pursuant to s.24(2) of the Crimes (Sentencing Procedure) Act 1999.

5. The learned sentencing judge erred in the manner in which the sentence was imposed by failing to attribute both reasons and to refer to the factors that warranted what was his determination of a head sentence of 7 years imprisonment as appropriate, which in turn called for a non-parole period of 5 years and 3 months. The learned trial judge erred as a matter or [sic] law in failing to give any or any cogent reasons for the manner in which he sentenced the Appellant on the offence of kidnapping, contrary to s.86(2)(b).

6. The learned sentencing judge erred in failing to give any or any sufficient weight to the factors that were properly available as mitigating factors in the determination of the sentence with respect to the Appellant and in particular in making a finding that the purpose of detention was not financial reward as such.

7. Such further or other grounds as may seem fit.”

Facts

10 His Honour made extensive findings of fact for the purpose of the sentencing and, those findings are, relevantly:

“2. The victim, Raymond Zhang, bought a travel agency known as the Chess Travel Agency at Hurstville from a Mrs Helen Fuchs on 1 March 2006 for the notional sum of $90,000. That was made up of $80,000 paid to Ms Fuchs with a discount of $10,000 to enable the victim to purchase a travel agent’s licence for the sum of $9,500. One aspect of the purchase was a licence or agreement with IATA to issue air transport tickets on the spot with the agency holding the purchase moneys in a trust account. Those funds were later to be paid to IATA. The IATA licence had been in the name of Mrs Fuchs and was not transferred from her name to another whilst Mr Zhang owned the business. The IATA licence could not be transferred to the victim’s name because he did not have the experience required. It was suggested by Mrs Fuchs that the IATA licence be transferred into the name of an employee of the agency, Maureen Jackson, who had lengthy experience as an employee of Chess Travel and had the necessary qualifications.

3. On 10 August 2006 the victim sold the business to a Mr Lemir El Ayoubi, again for the sum of $90,000. At the time that Lemir El Ayoubi bought the business it was represented to the victim that a Mr Kevin Moloney would be the manager and administrator of the company. Kevin Moloney is in fact a pseudonym. The person known as Kevin Moloney is also known as Michael White and as Hatem Addouge.

4. On the evidence presented at trial Lemir El Ayoubi left Australia for Dubai on 12 October 2006 and had not returned to Australia according to Immigration records. The man known as Kevin Moloney has been described as being of Middle Eastern appearance, very fat, a speaker of Arabic and was being driven around in a large white car, sometimes referred to as a Holden Statesman, by a chauffeur. His real identity is unknown to the police and his whereabouts have been at all material times unknown to the police. That man’s sister is married to Omran Ayoub’s brother.

5. In mid-November Moloney called the victim and said there was a problem with the IATA licence and that he wanted the victim’s assistance. A further approach was made by Moloney to the victim at the beginning of December 2006. On that occasion Moloney said that the problem with IATA could not be solved so that Mr Zhang had to buy back the business and that when Mr Zhang had solved ‘the problem’ ‘they’ would buy the business back from the victim. The victim contacted IATA but was led to believe there was nothing that he could do to solve whatever the problem was. Moloney phoned the victim again around 7 December, but it may well have been on 8 December 2006. The victim described Moloney as being a very angry man who spoke to him rudely. There was again a demand that the victim take the business back. The victim said that he wished to speak to his lawyer and Moloney is alleged to have said, ‘You fucking Asians. We don’t need lawyers, we can solve things by ourselves.’ The victim said that that scared him. He had only left his mobile telephone number with the purchaser of Chess Travel and the call was made to his new workplace. He was concerned that Moloney might know his home address and go to it and make trouble. The victim attempted to telephone his solicitor to make an appointment but was unable to make such an appointment. He spent the night of Friday 8 December 2006 at a friend’s house. However, he returned to his home at [address supplied] on Saturday 9 December 2006.

6. Between 11am and 2pm on Saturday 9 December 2006 two men came to the victim’s home. One was the Offender Ali El Masri and the other was the Offender Omran Ayoub. The two were let into Mr Zhang’s home by Mr Zhang’s housemate, Mr James Lo. Again it was clear that there was a discussion between the Offenders and the victim about the repayment of moneys. The Offenders demanded that the victim accompany them and he did so. They took him in a silver coloured Subaru motor vehicle to the premises of Moorebank Trucks, Spares and Repairs at [address supplied]. That is a business that was owned by the Offender Ali El Masri. The victim was detained at those premises from the Saturday afternoon to the afternoon of Monday 11 December 2006. The Offenders stayed with the victim at those premises on the Saturday afternoon, the Saturday night and the Sunday morning.

7. At some stage over the weekend of 9 and 10 December 2006 someone, the evidence does not disclose who, went to the victim’s home and collected his personal possessions, including his financial records, his identity documents such as his Medicare card, his driver’s licence, his passport and citizenship certificate. They were brought to the workshop of the Offender Ali El Masri’s business. According to the victim, Kevin Moloney visited the workshop on the Saturday afternoon for a while and left. He was also at the workshop on the Sunday afternoon in the company of his Korean girlfriend.

8. The Crown case, based on the evidence of Mr Zhang, is that from the time the victim arrived at the workshop until the police arrived at the workshop on the following Friday afternoon, the accused, or one of them, did each of the following things. Firstly, demanded and obtained from him the PIN numbers and password to operate his credit cards, his internet banking facilities, and his share portfolio. Secondly, made him sign over the registration of his vehicle which was transferred into the name of the Offender Omran Ayoub on Monday 11 December 2006. Thirdly, withdrew $1,000 in cash via ATM at Liverpool at 3.53pm on Saturday 9 December 2006. Fourthly, made him complete cheques numbered 48, 49 and 50, and later made him sign blank cheques numbered 51, 52, 53 and 55. Fifthly, did not permit him to make telephone calls except those they directed him to make to his workplace, reporting himself as ill, on Monday 11 December and thereafter as having to travel urgently overseas. Sixthly, forced him to sign a statutory declaration, which became Exhibit 11, at Liverpool on Monday 11 December 2006 and told him not to say anything to the Justice of the Peace who witnessed his signature. Seventhly, sold the shares in his share trading account, causing the proceeds of the sale of shares to be credited to the Flexi Direct Account of the victim to which access had been gained by the Offenders. Eighthly, transferred $4,000 from his credit card to the Flexi Direct Account on Monday 11 December so that greater funds were available in the Flexi Direct Account. Ninthly, pretended to be, or caused someone else to pretend to be, the victim himself when bank tellers have called the victim on his mobile telephone to confirm the validity of cheques that he had signed, and lastly made further cash withdrawals, each of $1,000, from automatic teller machines on Thursday 14 December at Chullora at 8.33pm, on Friday 15 December at Bankstown at 10.27pm and on Saturday 16 December at Bankstown at 12.14pm.

9. The Crown case was that the Offenders took from Mr Zhang $75,750 and his car valued at approximately $14,000. The total of those two sums is almost $90,000.

10. The victim gave evidence that whilst at the workshop Omran Ayoub stood behind him holding a piece of metal tube when Ayoub demanded the victim give to them the correct PIN number for his various accounts. The victim also said that Ali El Masri had an automatic pistol tucked into the waistband of his pants. The victim also said that at the time that the Offenders demanded that they accompany him from the victim’s home on Saturday 9 December that one of the Offenders pointed to his chest with a pair of scissors. The Crown relies upon the Offenders’ use of those implements as circumstances of aggravation, they being weapons used to intimidate and overawe the victim so that he would do as they demanded of him and stay in their custody. The use of those weapons is not an essential element of the charges levelled against the Offenders for which they have been found guilty by the jury. It is therefore a question for me as to whether the Crown has satisfied me beyond a reasonable doubt that the Offenders armed themselves in the fashion to which the victim said they did.

11. The victim was first interviewed by the police on the evening of Friday 15 December 2006, on the evening of the day on which he was released from the custody of the Offenders. At that time he made no mention of a firearm, no mention of a bar being used as a weapon, and no mention of scissors. The victim was interviewed by Detective Sergeant Schreuder on 22 December 2006. An interpreter was not used on that occasion but there was a lengthy statement taken from the victim. At that time there was no mention of any gun, no mention of any bar and no mention of any scissors. The first time that the victim mentioned a firearm was when he attended the Hurstville police station on 12 June 2007 to participate in an identification procedure, using a photographic array and to have a buccal swab taken. As a result of mentioning a firearm on that occasion a further statement was taken from the victim on 14 June 2007 concerning the use of a firearm. The first mention by the victim of the use of a metal bar as a weapon or the use of scissors as a weapon was in the week prior to the commencement of the trial on 2 February 2009 when the victim was interviewed by the Crown Prosecutor. In those circumstances I am not persuaded beyond reasonable doubt that the Offenders used any implement as a weapon. I am not persuaded beyond reasonable doubt that the Offenders were armed with a gun or one of them was armed with a gun, nor am I persuaded beyond reasonable doubt that Omran Ayoub threatened the victim with an iron bar or that scissors were used as a form of weapon at the time that the Offenders demanded that the victim accompany them on 9 December 2006. The first mention of the scissors and the metal bar is over two years after the event in question. The first mention of the gun was six months after the events in question and one would have thought the first thing any person would do who had been threatened by a gun would be to make a complaint about that very fact to investigating police officers. There are some suspicious circumstances, but they could not persuade me beyond reasonable doubt, for example, of the use of a firearm.

12. The Offender Ali El Masri asks me to take into account on a Form 1 a charge of possessing ammunition without holding a licence, permit or authority. The date of that offence was 15 December 2006. The ammunition in question was for .38 calibre and .45 calibre firearms.

13. On 15 December 2006 the police had executed a search warrant at Ali El Masri’s business premises and searched looking, one would infer, for, amongst other things, firearms. Whilst they did find some ammunition no firearm was found. It was at that time of the execution of that search warrant that the police ascertained the presence of the victim at the Offender El Masri’s business premises and that eventually led to his being interviewed and then charge [sic], which led to the conviction with which I am dealing, being laid. In other words, no gun was found at that time that Mr Zhang’s detention had been made known to the police. Whilst the presence of the ammunition is suspicious the fact that no firearm was found adds weight to my having a reasonable doubt about the use by the Offenders of a firearm in the detention of the victim.

14. On Monday 11 December the Offender El Masri told the victim that they could no longer stay at the workshop and that they had to go to a motel. The victim said he was taken to the silver Subaru. The Offenders made him take his spectacles off, told him to lie on the back seat of the car and he was driven off. The first place to which he was driven was a young man’s place and the Offenders asked that young man to keep watch over him and after that the accused was taken to the motel.

15. The victim’s evidence was that when he arrived at the motel he was taken directly to the motel room and did not visit reception. The victim also gave evidence that his signature was not the signature on the guest registration card which became Exhibit 22. According to the victim, the Offenders stayed with him at the motel on the Monday night. The Offenders would stay with the victim each night at the motel and during the day a young man would keep watch over him. Again the victim said that he saw the pistol at the motel sometimes being held by the Offender El Masri, sometimes by the Offender Omran Ayoub and he also said in cross-examination that it was sometimes in the possession of Kevin Moloney. Again I am not persuaded beyond reasonable doubt that a firearm was so used.

16. The victim said in evidence that the phone in the room was disconnected and that he was not left alone in the motel room. The victim said that on the evening of Thursday 14 December Kevin Moloney visited the room and told Zhang that the ‘problem’ had been solved and that he could go free on the following day but he was not to call Maureen Jackson of Chess Travel and he said that he was told by Moloney that ‘they’ had people in the police force. That was not a representation that was made by either of the current Offenders to the victim and cannot be used against the Offenders for the purposes of sentencing.

17. Evidence was given that on that evening two women came to the motel room. All the witnesses were coy on that issue; these two women were either masseuses or sex workers. The victim admitted that he had his neck massaged by one of these two women. The victim left the motel on the morning of Friday 15 December with the Offender Ali El Masri. He was taken to a shop at Liverpool where El Masri wanted to buy breakfast. El Masri told the victim that he had a friend in a fruit shop and he went to that shop and talked to his friend and then El Masri drove the victim back to his workshop. There is no dispute between the victim and the Offender Ali El Masri about that, the only dispute was whether the victim could have used that opportunity to escape from the custody of the Offender Ali El Masri. The victim said that he made no attempt to raise an alarm or to escape because he was frightened of what might be done to him by one of the Offenders and he was also concerned that the persons at the shop where breakfast was bought and at the fruit shop were friends of the Offender Ali El Masri.

18. The victim said that he was waiting at the workshop on Friday 15 December 2006 for someone to pick him up when the police arrived to execute a search warrant on a completely unrelated matter.

19. Each of the Offenders gave evidence and their version of events was not of course consistent with what the victim said. However, it is clear that the jury accepted the victim’s evidence that he was taken and detained against his will and that a financial advantage was derived by the Offenders.

20. The purpose of this kidnapping, for that is the name of the crime, must be discerned. According to the Offender Omran Ayoub he was persuaded by representations made to him by Kevin Moloney that he should pay $90,000 to buy the business known as Chess Travel. According to Omran Ayoub he relied on Kevin Moloney because, firstly, of the fact that Kevin Moloney’s sister was married to Omran Ayoub’s brother, secondly, that Kevin Moloney appeared to be a good chap, thirdly he was a member of the same ethnic community as Mr Ayoub and fourthly, because he was a co-religionist. According to Mr Omran Ayoub it was represented to him that Chess Travel was a good business which returned $1,000 a week, that it had been sold by Lemir El Ayoubi to Mr Zhang and that it was worth $90,000. According to Omran Ayoub he used $50,000, being his worker’s compensation settlement for his back injury, and $40,000 he borrowed from his brother to pay $90,000 to ‘Mr Zhang’, via Kevin Moloney.

21. Kevin Moloney used Mr Frank Basha to pretend that Mr Basha was in fact Mr Zhang. Mr Basha gave evidence at the trial. Mr Basha clearly had an Arabic background. It would be impossible to mistake Fred Basha for the real Raymond Zhang. However, I am persuaded on the balance of probabilities that the representations alleged by Omran Ayoub to have been made to him by Kevin Moloney, were in fact made to him and that Omran Ayoub became ensnarled in one of Kevin Moloney’s schemes just as Mr Fred Basha had become involved in this scheme and yet another scheme of Kevin Moloney. According to Omran Ayoub the real Raymond Zhang was said to be a partner of the person who was identified to him as Raymond Zhang, Fred Basha. Such was not the case but was only a representation made by Kevin Moloney in this ‘sting’. Whilst I cannot accept the identification of Raymond Zhang as a partner of the untrue Raymond Zhang, Fred Basha, in the circumstances deposed to by Mr Ayoub I accept that in some fashion it was represented to Omran Ayoub that Raymond Zhang had some part to play in the failure of the business for which Omran Ayoub had paid $90,000 to Kevin Moloney.

22. According to Omran Ayoub on Saturday 9 December he and Ali El Masri waited outside Mr Zhang’s home until Kevin Moloney arrived and it was Kevin Moloney who bought out of Mr Zhang’s home, Mr Zhang and when Omran Ayoub pointed out that that was not the Mr Zhang that he had paid the money to, Kevin Moloney then said to him that this was Mr Zhang’s partner. I cannot accept that because that would be inconsistent with what the jury obviously found. They obviously accepted the evidence of the victim in that regard and the evidence of his housemate Mr James Lo. According to Mr Lo the two Offenders had turned up on the Friday night at Mr Zhang’s house asking for Mr Zhang, but he was not there and it was only those two men, the present Offenders, who turned up on the Saturday when Mr Zhang left in their company to be taken to the Offender El Masri’s business premises at Moorebank.

23. As has been submitted on behalf of the Offenders, and as I directed the jury, the Offender Omran Ayoub sought to recover moneys he had actually lost to Kevin Moloney from Raymond Zhang because he relied on information given to him by Kevin Moloney that was false and which he appears to have accepted uncritically and then sought to recover the money from Raymond Zhang by taking him and detaining him and coercing him to transfer to him his money and other assets. This was an attempt at self help but done in the completely wrong fashion.

24. The Offender Ali El Masri became involved in this crime to support his long term friend Omran Ayoub. According to evidence given by Ali El Masri he was concerned that the ‘rip off’ may have been made by Kevin Moloney, but he appears to have accepted Omran Ayoub’s assurance that Moloney would do no such thing uncritically because Ali El Masri himself admitted that Omran Ayoub, a long standing friend of his was ‘sort of dumb’.”

11 His Honour (Remarks on Sentence [28]) considered the circumstances of the detention as not appearing “to have been at all onerous. The victim had admitted that he had been treated well by the appellants and his confinement was, in terms of circumstances, generous to the victim.” At all times he was in the company of another, could watch television or read, almost as he pleased, and, oddly, there was the provision of “massage”.

12 Further his Honour took the view that the victim was not unusually vulnerable. And his Honour took the view that the purpose of the detention was not “financial gain”, but the recovery of money that was believed to be owed, even though it was not.

13 Although the effect of the demands made during the detention would have been the obtaining of money, because the appellants considered the money was legally owing to them, his Honour came to the view that the purpose of the detention was not “financial reward”, as such.

14 Lastly, his Honour took into account, in terms of objective seriousness, the period of the detention. The detention in this case, as is clear from the facts already stated, was over a week, which, on any analysis of other criminal activity of the same kind, is an extended period of detention, which extended period adds to the objective seriousness of the offence. His Honour came to the view, contrary to the submissions of the Crown on sentence, that the objective seriousness of the offence fell below the mid-range, but was not a minor or trivial offence because of the length of the detention.

Subjective circumstances

15 In the case of Mr El Masri, he was 32 years of age at the time that he was sentenced, and he has a wife and three children. He migrated to Australia in 1998, and his father died 10 years later. He was educated before coming to Australia and completed a diesel electrical course. In Australia he worked in a truck spare parts business, which business ceased when Mr El Masri was gaoled.

16 Mr El Masri continued to deny his criminality, and, according to the sentencing judge, continued to misunderstand the nature of the offence in question. Mr El Masri took the view that criminal conduct was occasioned only when a ransom was sought, rather than the repayment of a debt that was owing.

17 Notwithstanding his relatively short time in Australia, Mr El Masri had a criminal history with prior convictions including violence. He had been convicted and sentenced for affray and resistance to a police officer in the execution of the officer’s duty. He also has driving offences. Mr El Masri sought to take into account, in sentencing, two charges on a Form 1, being the possession of ammunition without holding an appropriate licence, and knowingly possessing an identification plate for a motor vehicle, that was not attached to the motor vehicle. The maximum penalty for the ammunition charge is a monetary penalty, and for the possession of the identification plate 5 years’ imprisonment. However the circumstances of the possession of the identification plate are such that, of itself, a custodial sentence would not seem to have been appropriate.

18 In the case of Mr Ayoub, he was 33 years of age at the time that he was sentenced. He migrated to Australia in 2001 on a spouse visa, is married and has four children aged between 7 years of age and 12 months. Mr Ayoub and his wife were, at the time of sentencing, separated. Mr Ayoub did not complete secondary school, either here or overseas, and has learnt very little English. Mr Ayoub’s attitude to the offence seems to be identical to that of Mr El Masri. Since coming to Australia he has been working in the formwork/building industry.

19 Mr Ayoub also has prior convictions. He was convicted of common assault and granted a bond for a period of 12 months under s 10 of the Crimes (Sentencing Procedure) Act 1999, without proceeding to conviction. During that 12 months, he was convicted of obtaining money by deception for which he was sentenced, ultimately, to 250 hours of community service, and convicted of goods in custody for which he received a good behaviour bond under s 9 of the aforesaid Act. The current offence was committed before Mr Ayoub had completed that conditional liberty.

20 No submission was put to the sentencing judge that it was appropriate to find special circumstances and his Honour imposed a regime which accorded with the statutory ratio between the non-parole period and the remainder of sentence.

21 Lastly, while his Honour considered that the conditional liberty applicable to Mr Ayoub was an aggravating factor in the commission of the offence, it was a factor that had the same or similar effect to the consideration of the two Form 1 offences to be taken into account in sentencing Mr El Masri. As a consequence, and given that his Honour could not discern any other rational basis upon which he was prepared to differentiate between the two offenders, he imposed the same sentence on each, commencing at slightly different dates due to pre-sentence custody that was taken into account.

Grounds 1 and 2: Period of detention and classification of objective seriousness

22 Both the appellants and the Crown dealt with Grounds 1 and 2 together. The appellants submit that his Honour fell into error in that he regarded the period of detention as a critical factor depriving the offence as one that could be regarded as trivial or minor. The appellants submitted that his Honour’s approach offended the principles in Markarian v R [2005] HCA 25; (2005) 228 CLR 357 in that his Honour did not synthesise a series of factors, but rather applied a mechanical approach which added and subtracted factors from an initial intuitive assessment.

23 The appellants classified the task in which his Honour was involved as a decision of fact and submitted that there was “an error of the discretion in which the sentencing judge both classified the objective seriousness, but determined to find it aggravated by the length of the detention”.

24 The determination of the objective seriousness of an offence is essentially a matter for the sentencing judge. It is neither a decision of fact, nor an exercise of discretion. It is an evaluative conclusion based on fact and the experience and knowledge of the sentencing judge of the range of conduct within the offences that are capable of being committed in contravention of the law in question. Fundamentally, the submission of the appellants is misplaced. His Honour did not undertake a mechanical approach to the evaluation of the seriousness of the offence, but, rather, exposed his reasons for determining that the matter was below mid-range, but not trivial.

25 The Court will intervene in the assessment of a sentencing judge as to the objective seriousness of an offence only on the basis that there is identifiable or manifest error. In this case, there is no identifiable error, and the finding was manifestly open to the sentencing judge.

26 Further, to the extent that the appellants submit that his Honour erred in taking into account the length of the detention as a factor aggravating the objective seriousness of the offence, in my view, his Honour was correct in that consideration. All other things being equal, a significantly longer detention involved greater culpability than otherwise would be the case. Grounds 1 and 2 do not disclose an error with which the Court should intervene and I would reject those grounds.

Grounds 3 and 5: Manifest excess and lack of reasons for the imposition of a 7 year head sentence and relevant non-parole period

27 As framed, and to the extent that the two grounds of appeal overlap, they allege that no reasons were given for the sentence that was imposed. In that regard, the submission seems, at least in part, to contradict the appellant’s submission that his Honour’s approach was inconsistent with the principles in Markarian, supra.

28 As expanded in the written submissions, and orally, there are aspects of these grounds, which essentially argue manifest excess, which is a separate ground of appeal and, while dealing with each together, I will return, in part, to the manifest excess submission, which is relevant also to other grounds.

29 As was stated in the joint judgment (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian:

“[27] Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.

…

[39] Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of "instinctive synthesis", as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression "instinctive synthesis" may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.”

30 As defined by McHugh J in Markarian, supra, instinctive synthesis means “the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.” (Markarian, supra, at [51].)

31 Alternatively, as McHugh J defined it, a “two-tier sentencing” process is one in which “a judge first determines a sentence by reference to the ‘objective circumstances’ of the case … then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused”. (Markarian, ibid.)

32 As later stated, by McHugh J:

“Critics of the instinctive synthesis method place too much emphasis on the ‘instinct’ and too little on the ‘synthesis’. The use of the word ‘synthesis’ in the context of sentencing identifies the very last part of the process. It recognises that, where a variety of considerations, often tending in opposing directions, operate in the context of a statutory maximum, there must finally be a quantification of the sentence to be imposed. There must be a synthesising of the relevant factors. In that process, greater and lesser weight will be allocated to some factors depending on their relevance to the person convicted and his or her crime. Ultimately, community and legal values are translated into a number of years, months and days.” ( Markarian , supra, at [73].)

33 Largely, the determination of an appropriate sentence that takes account of the factors relevant to the imposition of a penalty is intuitive. Either all of the factors that are relevant have been considered, and only the relevant factors, or they have not. Absent an identifiable error in the consideration, or non-consideration, of factors, error can be discerned from a misapplication of principle or otherwise manifest error. The learned sentencing judge has done no more than express the relevant factors. He has not engaged in a two-tier (or multi-tier) process.

34 Further, manifest error arises when it does not appear how the sentencing judge erred but, upon the facts, and proper application of the principles, the result derived is unreasonable or plainly unjust: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325. Leaving aside the issue, with which I will deal later, of the consistency of the sentence imposed with sentences imposed in other cases, there is no identifiable or manifest error involved in the imposition of the sentence. Grounds 3 and 5 of the appeal should be rejected.

Ground 4: Failure to find special circumstances

35 This submission and ground of appeal is a counsel of perfection. The learned sentencing judge fixed the ratio between the non-parole period and the remainder of the head sentence in the manner referred to in s 44(2) of the Crimes (Sentencing Procedure) Act. He did so, expressly, on the basis that no submissions had been put to him that there were special circumstances in relation to either one of the appellants.

36 It is now said, on appeal, that despite the fact that no submissions were put to his Honour that special circumstances existed, and despite the fact that neither appellant relied upon it before him, his Honour erred in not finding special circumstances.

37 Section 44(2) of the Crimes (Sentencing Procedure) Act does not prescribe a precise mandatory ratio for all sentences. The ratio of 3:1 is a ratio below which a sentencing judge must not go, unless there are special circumstances. Thus, a finding of special circumstances is relevant only to the determination of a ratio below 3:1.

38 The finding of special circumstances is, essentially, a matter for the sentencing judge and there is such a wide variety of circumstances that will lead to such a finding that it is difficult to prescribe the factors that would be involved. Nevertheless, the Court will intervene in the finding of special circumstances, but it will intervene only on one of the well-known bases for the overturning of an exercise of discretion.

39 There may well be reasons why, if requested, a judge may have found special circumstances in relation to one or more of the appellants in this case. But the sentencing judge was not requested to do so.

40 The period of potential parole is sufficiently lengthy to enable a rehabilitative process to be implemented and completed, and the fixing of the ratio of 3:1 is not an error identifiable or manifest. In circumstances where, as here, a sentencing judge is not requested to make a finding of special circumstances, it is not an error for the judge not to consider the issue, of his or her own motion.

41 The duty imposed upon a court by s 44 of the Crimes (Sentencing Procedure) Act is, first, by subsection (1), to set a non-parole period, and, then, by subsection (2), to fix a balance of the term that “must not exceed one-third of the non-parole period … unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)”.

42 As is clear from the terms of subsection 44(2) of the Act, the sentencing judge is not required to give reasons for not finding special circumstances, but in the absence of such reasons and/or in the absence of such a finding, the balance of the term must not exceed one-third of the non-parole period.

43 This ground of appeal should also be rejected.

Ground 6: Failure to have sufficient regard to all available mitigating factors

44 The submission of the appellants on this ground asserts a failure to take proper account, and give appropriate weight, to the particular position of each accused, including background, prospects for rehabilitation, and the like. The appellants point to no feature which was not taken into account by his Honour in the sentencing process. Moreover, it is not submitted that the parity as between each of the appellants was inappropriate.

45 Thus, substantively, the ground of appeal submits that error occurred because insufficient weight was given to the “bizarre behaviour” involved in the circumstances of the detention.

46 There can be little doubt that his Honour paid significant attention to the appellants’ treatment of the victim whilst he was detained. It is clear that his Honour took the view, of which there is abundant evidence, that no further physical harm or inhibition were imposed upon the victim. Nevertheless, the essence of the offence for which each appellant was charged is that the appellants detained the victim and it was appropriate, if not necessary, for the sentencing judge to have regard to the significant period of that detention.

47 Were the circumstances of the detention other then as benign as found by his Honour, then there would have been manifest error in the determination of the objective seriousness of the offence at below mid-range. The circumstances of the detention were, necessarily, at the forefront of his Honour’s considerations.

48 This ground of appeal, too, should be rejected.

Total consideration

49 The Court must deal with the issue of consistency of sentence, raised in the context of both manifest excess and the failure to provide adequate reasons for arriving at the sentence imposed. Before doing so, there are some other matters with which the Court should deal.

50 At one stage, for reasons which were, and remain, unexplained, counsel for the appellants referred to the Remarks on Sentence at [3] and those submission referred to Mr Kevin Moloney as a person who “was also known as White and also as Hatem Addouge, and he was not, as the name would consider [sic: read ‘suggest’], a person of Celtic or Gaelic origin, but rather a person of Middle Eastern appearance” (Appellants’ Submissions at [20]). I do not understand the purpose of this submission.

51 Unless it is suggested that the race or ethnicity of the manager of the proposed business was relevant to his Honour the sentencing judge, it seems to form no rational place in the appellants’ submission. While the sentencing judge (Remarks on Sentence at [3] and [4]) described Mr Moloney as “being of Middle Eastern appearance”, this was, as the context of the Remarks disclosed, obviously done for the purpose of describing him, and noting that his real identity was unknown and that his whereabouts were unknown, notwithstanding his significance to the events in question.

52 Otherwise, I would comment that absent a particular relevance either to identity or some act or acts in question, the ethnicity, race or appearance of a person involved in criminal activity, is an irrelevant consideration in determining the objective seriousness of an offence. Where it applies to an offender, it may be relevant if it gives rise to certain subjective features which might ameliorate, or lead to a better understanding of, the offending: see R v Fernando (1992) 76 A Crim R 58.

53 Lastly, it is necessary for the Court to deal with the issue of consistency.

54 The appellants submit that they have been dealt with more harshly than other offenders, found guilty of the same offence, have been dealt with by sentencing judges or by this Court.

55 Essentially, the applicants submit that they have a justifiable sense of grievance, because the sentence imposed upon them was greater than that imposed on other offenders in similar circumstances.

56 The principle of equal justice is a fundamental aspect of the exercise of judicial power. Between co-offenders, it is implemented by the use of the principles of parity: Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301-302; Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610-611. Fundamentally, the principle requires that those things that are alike should be treated alike, while the things that are different should be treated differently, the different treatment being rationally proportional to the differences: Jimmy v R [2010] NSWCCA 60 at [255]-[256]; Andrews v Law Society of British Columbia [1989] 1 SCR 143; R v Tiddy [1969] SASR 575 at 577.

57 In Jimmy, supra, the Court held that parity could apply to offenders who are not strictly co-offenders, but were involved in the same criminal enterprise. Nevertheless, the principle espoused in Jimmy would not allow a comparison between the offenders in this case and offenders in a wholly separate and quite different criminal enterprise.

58 I confirm the view I expressed in HAN, Zhi Qiang v R [2009] NSWCCA 300 (with whom Campbell JA and Howie J agreed), in which I said:

“[38] The principles of equal justice, in relation to contraventions of the same law, but different conduct and offences, is implemented through the application of the principle of consistency in sentencing, which seeks to ensure that the sentence that is imposed is within the range of sentences available for the particular offence and the particular offender. As was said by Simpson J in R v F , supra, at 315:



‘Consistency in sentencing may be achieved by the slavish adoption, by a subsequent court, of a sentence selected by an earlier court when the facts are comparable. However, that would be consistency purchased at the cost of the sacrifice of the proper exercise of judicial discretion. Within the bounds of the appropriate range of sentences, each sentencing judge (either at first instance or following appeal) must bring to bear his or her own independent assessment of the particular case.

… Consistency is not derived from a single case. Consistency in sentencing will be achieved from a range of cases involving similar features, and also variables. It depends upon the accumulated wisdom and experience of sentencing judges. In my opinion a single case is inadequate to enable a principled consistent approach.

…

Moreover, while consistency in sentencing is, no doubt, an important goal, equally important for the administration of justice is the public perception that sentences imposed by criminal courts are appropriate to the nature and seriousness of the crime committed.’


Meagher JA (at 309-310) and Howie J (at 316-317) agreed with Simpson J, but preferred to use the words ‘more important’ rather than ‘equally important’, when referring to the public perception that sentences imposed must be appropriate to the nature and seriousness of the crime committed. With great respect, I adopt the comment that the appropriateness of the sentence, given the seriousness and nature of the crime committed, is a ‘more important’, rather than ‘equally important’, principle.”

59 In the present circumstances, notwithstanding the comparison with other judgments of this Court, the sentence imposed is not beyond the range disclosed by statistics, and not beyond the range available to the sentencing judge.

60 The process of intuitive synthesis, which is involved in fixing an appropriate sentence, often seeks to reconcile conflicting goals. A slavish implementation of a sentence imposed on another, who offended in a similar but not identical manner, simply because the facts are partly or arguably comparable, is not a proper exercise of judicial discretion, nor the independent assessment of an appropriate sentence within the range that is available: R v F [2002] NSWCCA 320; (2002) 132 A Crim R 308 at 315, per Simpson J; R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555 at 566, per Johnson J, with whom Simpson J and I agreed.

61 It may be the case that the sentence imposed was higher than another judge might legitimately impose. However, the sentences imposed were not beyond the range available. It is necessary to remember that a sentencing judge “should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected”: Johnson v R [2004] HCA 15; (2004) 78 ALJR 616 at [26], per Gummow, Callinan and Heydon JJ.

62 The appellants have not been successful in any ground which identifies an error in the process of sentencing undertaken by the sentencing judge. Further, the overall result is not manifestly unreasonable or unfair. There is no identifiable or manifest error and the appeal should be dismissed.

63 I propose that the Court make the following orders:

(i) In each matter, leave to appeal granted;

(ii) In each matter, the appeal is dismissed.

64 BARR AJ: I agree with Rothman J.

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