El Katrib v The The King

[2022] NSWCCA 266

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

El Katrib v R [2022] NSWCCA 266

Hearing dates:

11 October 2022

Decision date:

15 December 2022

Before:

Macfarlan JA at [1];
Button J at [2];
Wilson J at [67]

Decision:

(1) Leave to appeal granted.

(2) Appeal against sentence dismissed.

Catchwords:

CRIME – Appeals – Appeal against sentence – Parity – Joint criminal enterprise – Where differing degrees of involvement in offending – Where significant differences in subjective features in mitigation – Where all factual findings of sentencing judge open – Leave to appeal granted and appeal dismissed

Cases Cited:

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 4

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Category:

Principal judgment

Parties:

George El Katrib (Applicant)
Rex (Respondent)

Representation:

Counsel:
N Mikhaiel (Applicant)
C O Gleeson (Respondent)

Solicitors:
Macquarie Law Group (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2020/269322

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

11 March 2022

Before:

Craigie SC DCJ

File Number(s):

2020/269322

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr El Katrib (the applicant) sought leave to appeal against sentence imposed on him on 11 March 2022 by Judge Craigie SC in the District Court. The applicant was sentenced to a term of imprisonment for 5 years 3 months with a non-parole period of 3 years 6 months for one offence of specially aggravated detaining a person for advantage, committed by way of joint criminal enterprise with four other co-offenders. He and three other co-offenders who pleaded guilty early – and were thereby entitled to a discount of 25% - were sentenced on the same day, and another was sentenced subsequently, having pleaded guilty at a later date, and being entitled to a discount of 10%.

The applicant pressed a single ground of appeal, submitting that he had a justifiable sense of grievance having regard to the sentences imposed on his co-offenders.

Two key submissions were advanced in support of the ground of appeal. First, that his lesser degree of involvement in the serious offending combined with his relatively weaker subjective case meant that his sentence should be more comparable with the female co-offender who had been present for a longer period of the offending, but a significantly more profound subjective case. This co-offender received a head sentence of 3 years 3 months with a non-parole period of 1 year 6 months. Secondly, and somewhat in the alternative, that the applicant’s sentence should have been considerably less than a co-offender with a significantly more violent and objectively serious role in the offending, but with whom the applicant who shared some subjective characteristics.

The Court held, dismissing the appeal (per Button J, Macfarlan JA and Wilson J agreeing):

1. The varying degrees of involvement by the five co-offenders, and findings made as to subjective features in mitigation, engaged the discretionary, evaluative assessment of the sentencing judge. Relatedly, factual findings of the sentencing judge with regard to the applicant’s lack of insight and remorse were open on the evidence: [53], [56]-[58] (Button J); [1] (Macfarlan JA); [67] (Wilson J).

2. Where a single judge sentences all co-offenders in a joint criminal enterprise, and thereby engages with the question of parity, it will be more difficult for an applicant to impugn this process of instinctive synthesis: [59] (Button J); [1] (Macfarlan JA); [67] (Wilson J).

JUDGMENT

1. MACFARLAN JA: I agree with Button J.

2. BUTTON J:

Introduction

Mr George El Katrib (the applicant) was sentenced to a significant term of imprisonment by Judge Craigie SC on 11 March 2022. That pertained to extremely grave offending that had been committed by the applicant by way of a joint criminal enterprise with four other persons on 13 September 2020. Three co-offenders were sentenced on the same day, and another was sentenced subsequently, on 15 June 2022.

3. The applicant seeks leave to argue a single ground of appeal against sentence: the applicant has a justifiable sense of grievance having regard to the sentences imposed on his co-offenders.

4. For the following reasons, I would grant leave to appeal, but dismiss the appeal against sentence.

Background

5. The following is derived from findings of fact about objective and subjective features made by the learned sentencing judge in the two sets of remarks on sentence.

6. All five offenders pleaded guilty to a shared count of specially aggravated detaining a person for advantage, committed by way of a joint criminal enterprise in which all of them engaged in different ways. That offence carries a maximum penalty of imprisonment for 25 years, and no standard non-parole period. The advantage was a financial one, intended to accrue to Mr Alebrahimi, one of the co-offenders. The circumstance of special aggravation was the infliction of actual bodily harm.

7. On 13 September 2020, as part of a dispute about the supply of prohibited drugs, the victim, a 44-year-old male, stole prohibited drugs from the home of Mr Alebrahimi. His actions were detected by way of a CCTV surveillance camera. Ms Elamin lured the victim to an address on a false premise. Thereafter, Mr Alebrahimi, Mr Pau’u, and Mr Humod suddenly appeared. They were armed with what appeared to be pistols and a machete. At that time, the applicant was not present.

8. The three men proceeded to brutalise the victim in various ways. At one stage, there was discussion of cutting off his leg. At another stage, there was a discussion in his presence of murdering him. He was tied up. A demand was made for the return of the assertedly stolen drugs, or payment of the sum of $80,000. He was detained in those circumstances for approximately three hours.

9. At the end of that period, the victim was moved to a van. The applicant had arrived before then, and inevitably was aware of the detention of the victim and the violence to which he had been subjected. He played a part in the movement of the victim to the van, and its subsequent departure, with the victim still detained.

10. When the van paused on the pretext provided by the victim that he needed to have a toilet break, he took the opportunity to escape on foot. What ensued was captured on CCTV that was placed before the sentencing judge. The victim was pursued, on foot by some offenders, and by the applicant as the driver of the van. Bearing in mind his advantage in speed, it was the applicant who first reached the victim, and forestalled his escape by seizing him. After that, the victim was brutalised again, including by way of Mr Humod stomping on his head a number of times. The sentencing judge was not satisfied that the applicant had inflicted force on the victim, other than restraining him. Reduced to limpness, he was dragged back to the van.

11. Eventually, the victim escaped for a second time, and this time begged for help from the residents of an apartment block. Yet further brutalisation was witnessed by others, and eventually the police and ambulance services arrived after the offenders decamped.

12. Because of the nature of the ground, the serious physical injuries suffered by the victim need not be detailed; suffice to say the sentencing judge found that they fell within the upper range of actual bodily harm, but did not constitute grievous bodily harm.

13. Eventually, all five offenders were arrested. Various items belonging to the victim were found at some of their homes. Some of the offenders made admissions, others not.

14. It can be seen in summary that offending of significant gravity against the victim was engaged in by all offenders, either personally or by way of their admitted involvement in a joint criminal enterprise to effect the crime to which each of them had pleaded guilty. Having said that, it is convenient to state at this early stage that an important part of the ground was the undisputed proposition that the applicant had not inflicted any violence at the original location, and indeed had not even been present there until a later stage, and furthermore that, even after the victim had been recaptured by the applicant, the latter did not engage in violence then either.

The applicant

15. Turning to the subjective features of all offenders, the applicant was 55 years of age as at the date of the offence. He was unemployed.

16. By way of background, the applicant was born in Lebanon, and came to Australia at the age of 30. He had endured a very difficult and impoverished upbringing; by way of example, both of his parents were illiterate. He suffered the profound disruption of the Lebanese Civil War in his youth, and served for seven years in the Lebanese Army. He had overcome a problem with alcohol evidenced by his driving record, but by the time of the offending suffered from an addiction to gambling and crystal methylamphetamine (ice). He was diagnosed as suffering from anxiety and depression, and disorders with regard to gambling and substances.

17. His criminal record demonstrated a “continuing pattern of offending related domestic violence” (Appeal Book page 32, hereafter AB 32). Having said that, all of his convictions had been entered in the Local Court. His criminal record was “reasonably extensive”, and included custodial sentences of variable lengths. He had been placed on an intensive correction order (ICO) for reckless wounding. In 2018, he had received concurrent sentences for offences of violence.

18. In a report placed before the sentencing judge, it was said that the applicant had sought to “minimise” his culpability. Indeed, he had basically traversed his plea in that report.

19. The sentencing judge considered the diagnoses put forward by the psychologist, and accepted that the applicant’s judgment was impaired to some degree at the time of the offence. On the other hand, his successful recapture of the victim – who conceivably may well have otherwise escaped, bearing in mind that the other pursuers were on foot – meant that he played a “vitally active” role.

20. The sentencing judge also noted a very sad letter from the 12-year-old daughter of the applicant.

21. This portion of the remarks on sentence concluded by noting that the applicant was by then 57 years of age, and suffered from some not insignificant medical conditions.

22. In the result, the applicant received a head sentence of imprisonment for 5 years 3 months, with a non-parole period of 3 years 6 months. Special circumstances were found, and it can be seen that the ratio between the latter and the former component of the sentence is 66.7%. The starting point of the head sentence was imprisonment for 7 years, prior to application of a discount for an early plea of 25%, something afforded to all offenders except Mr Humod.

Mr Alebrahimi

23. Turning now to Mr Alebrahimi, he was judged to have possessed a “relatively minor criminal history”, in that in 2018 he had been fined for possessing a prohibited weapon. He had also received a conviction without further punishment for possessing a prohibited drug at around the time of the offence under discussion.

24. He provided the sentencing judge with a letter of apology, to which little weight was given.

25. A report from a forensic psychologist showed that he had come to Australia as a refugee from Iraq in 2013. One of six children, he had been sexually abused as a child. In order to escape forced conscription into an extremist militia, he had left Iraq for a time for Iran, but then returned. By the time of the offending, he was abusing marijuana, methylamphetamine, and “GBL”, another drug of abuse. He also suffered from a problem with gambling. He was diagnosed as suffering from post-traumatic stress disorder (PTSD) as a result of his traumatic experiences. He spoke of a desire to attend a residential rehabilitation program when able to do so.

26. Mr Alebrahimi received a head sentence of 6 years 6 months, with a non-parole period of 4 years. The starting point of the sentence was imprisonment for 8 years 8 months. The ratio between the two is 61.5%.

Mr Pau’u

27. Mr Pau’u had been imprisoned repeatedly for driving offences. He had also been placed on an ICO for the same kind of offending. In that sense, this offence of significant violence was found by the sentencing judge to be out of character for a 47-year-old man. He is of Tongan background. He possessed a good work record both in the community and in custody. According to the remarks on sentence, he purported to express remorse for what he had done in a way inconsistent with the agreed facts.

28. Mr Pau’u received a sentence identical to that imposed upon Mr Alebrahimi: it featured a starting point of imprisonment for 8 years 8 months, resulting in a head sentence of imprisonment for 6 years 6 months, with a non-parole period of 4 years. Again, the ratio between the latter and the former is 61.5%.

Ms Elamin

29. Ms Elamin is a woman of Sudanese background who was 24 years of age on the day of the offence.

30. She was on bail for other offences, and was subsequently sentenced to imprisonment for failing to provide the necessities of life to her children, and also for concealing a serious offence. The sentencing judge described the former offence as having arisen in “a quite distressing situation”. In a nutshell, depression had rendered her unable to care for her two young children. She had endured a very deprived background, and had never been employed. The sentencing judge spoke of Ms Elamin suffering anxiety with psychotic features, combined with PTSD.

31. His Honour also spoke of her “simply dreadful childhood experiences”, including extremely serious and degrading sexual abuse to which she had been subjected at the age of eight, and a subsequent rape when she was twelve years of age that the sentencing judge described as “appalling”. She had been in a number of abusive relationships, and endured periods of homelessness. In custody, she continued to show symptoms of depression, even though medicated, and indeed thought disorder and perceptual disturbances.

32. The sentencing judge found that Ms Elamin had had various opportunities to withdraw from the joint criminal enterprise, yet had not done so. To be weighed against that was her relatively low level of involvement. The sentencing judge emphasised her background of very considerable disadvantage.

33. Ms Elamin received a head sentence of imprisonment for 3 years 3 months with a non-parole period of 1 year 6 months. The starting point was 4 years 4 months. The ratio between the mandatory minimum period of incarceration and head sentence is a little over 46%.

Mr Humod

34. As I have said, Mr Humod was sentenced subsequently. In contrast to all of the other offenders, he did not enter a plea of guilty at the earliest opportunity, thereby obtaining a discount upon sentence of 25%. Instead, he pleaded late, and received a discount of 10% as a result.

35. In separate remarks on sentence, the sentencing judge re-emphasised the possession of a machete by Mr Humod at the first location. He also remarked upon the previous association between Mr Humod and the victim, and the fact that the grievance arose from a dispute about prohibited drugs. The sentencing judge noted that Mr Humod was at that initial location well before the applicant. His Honour also emphasised that, once the victim had been recaptured, Mr Humod kicked him three times and stomped on him four times, thereby being “particularly active” in a “serious beating”.

36. The criminal record of Mr Humod featured the possession of a firearm, two charges of having custody of a knife in a public place, and offences to do with traffic and dishonesty. He had also breached two community correction orders (CCOs) by way of the commission of the offence under discussion. Having said that, he had never been sentenced to a period of full-time custody.

37. Mr Humod had been born in Iraq and raised in Kuwait. He experienced trauma during the aftermath of the second Gulf War in 1991. He was further traumatised by the tragic loss of his infant son. Mr Humod also came to Australia as a refugee.

38. Regrettably, in an effort to assuage his own PTSD, he turned to prohibited drugs in 2017, including ice and heroin. By the time of the offence, he was an addict. The PTSD continued to do significant damage to his functioning, in that he was unable effectively to escape the past. By the time of the offending, he was 62 years of age.

39. Mr Humod received a head sentence of imprisonment for 5 years 9 months, with a non-parole period of 3 years 6 months. Bearing in mind that there had been only a 10% discount on sentence, the starting point must have been almost 6 years 5 months. It is immediately noteworthy that, despite the profound and highly dangerous violence inflicted upon the victim by Mr Humod, the starting point of his head sentence was seven months shorter than that of the applicant.

40. Having said that, in the second remarks on sentence, the sentencing judge engaged in a detailed discussion about parity. In referring to the applicant, his Honour spoke of his contrition and insight as having been “greatly compromised”. The sentencing judge also found that the culpability of the applicant was only “somewhat reduced” in all the circumstances. His Honour reemphasised the offences of violence that appeared on the criminal record of the applicant, and his repeated periods of imprisonment, in contrast to his co-offenders. His Honour also returned to the finding that the prospects of rehabilitation of the applicant were “fair” at best.

Submissions for the applicant

41. In written submissions, counsel for the applicant relied on his more limited involvement in the offending – both with regard to duration and role – compared to his other male co-offenders, notwithstanding his worse criminal record, which was acknowledged as disentitling him to leniency.

42. The disparity between the sentences of Ms Elamin and the applicant was also said to be “glaring”, despite her relative youth and strong subjective circumstances.

43. Particular focus was directed to comparing the role of the applicant, including what he might have known, not known, or intended about the assault on the victim, before or during the commission of the offence, with that of his co-offenders.

44. Three submissions were made about the context of the adverse sentencing assessment report. First, that there was no interpreter for the first of two sessions. Secondly, comments made which apparently minimised his involvement in the offence were, in fact, not inconsistent with the agreed facts relating to his late arrival to the first place of detention, and his very limited role in physical assault on the victim. Finally, the author of the sentencing assessment report did not have the settled agreed facts.

45. In oral submissions, counsel for the applicant emphasised his very limited role in the violence that was inflicted on the victim, both at the initial location, after he had been recaptured, and in the final location where he was assaulted again by Mr Alebrahimi and Mr Pau’u. It was acknowledged that the high point of the applicant’s involvement was in the re-capture of the victim, however attention was drawn to the applicant’s withdrawal from the ensuing subsequent violence.

46. It was firmly posited that the similarities in head sentences of the applicant, Mr Alebrahimi, Mr Pau’u, and Mr Humod, who were the male co-offenders and whose culpability was said to be significantly higher, could not be justified on the basis of his criminal record alone, especially since he otherwise had a strong subjective case.

47. Counsel again emphasised the ancillary complaint directed towards the fact-finding of the sentencing judge with respect to the sentence assessment report, and in particular, with respect to the applicant’s lack of remorse and contrition. Generally, the sentencing judge was critical of all participants in their reflections on the offending, as they sought to attribute blame to others, or to minimise their involvements. This was held against the applicant more so than the other offenders, it was submitted. In particular, attention was drawn to the way that Ms Elamin was dealt with – whereby the sentencing judge took the view that her attribution of blame to others was referrable to her significantly deprived background and strong subjective case.

41. It was further noted that significant expressions of remorse and shame for his actions had been detailed in the applicant’s sentencing assessment report, but that these had not been explored further, with the result that the sentencing judge did not place weight on them.

42. A further submission was made concerning the applicant’s lack of an interpreter during the sentencing assessment report interview, such that difficulties in communication may be to blame for the statements made seeking to direct blame away from himself. As such, the “unduly harsh” approach of the sentencing judge to the applicant’s lack of remorse and contrition resulted in a more severe sentence.

43. In short, counsel argued that a sentence more akin to Ms Elamin’s should have been imposed, taking into account what was submitted to be Ms Elamin’s higher level of criminal involvement in the offending at all stages.

Determination

51. Despite the proposed ground of appeal saying nothing about an attack on any finding of fact on sentence on the basis that it was not reasonably open, as I have recounted above, it was submitted that the adverse finding of his Honour about what the applicant had said in a sentencing report prepared after the entry of the plea of guilty had been erroneous, and thereby fed into the asserted erroneous disparity.

52. In my respectful opinion, however, that proposition can be put to one side: it was well open to the sentencing judge to find, on the basis of quoted statements of the applicant in the report (AB 87), that he was very significantly lacking in insight and contrition. And the role of those characteristics in the sentencing process was a matter for the evaluative judgment of his Honour.

53. Turning to the nub of the ground, the question is whether, in light of all objective and subjective features, in reflecting upon the sentence to which he is subject and comparing it to the sentences imposed upon his co-offenders, the applicant is entitled to experience an objectively justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 4.

54. Analysing that question, it is of course essential to reflect upon starting points of sentences, not the sentences ultimately imposed after different discounts, so that one is comparing “like with like”.

55. It is also necessary to reflect on the proposition that, just as there is a broad discretion reposed in sentencing judges as to the sentence to be imposed upon an individual offender, so also there is a broad discretion as to the relationship between the sentences to be imposed upon a number of co-offenders. In other words, there is no single, mathematically correct relationship or ratio between the sentences imposed on two or more co-offenders.

56. Furthermore, as part of those broad discretions, instinctive synthesis permits sentencing judges to place greater or lesser weight on relevant aggravating and mitigating factors, as they see fit, within the bounds of avoiding patent or latent error.

57. Additionally, because different co-offenders within the one offence will almost always have played different roles objectively, and possess different subjective features, the ground is not based upon simple disparity or difference in sentence. Its focus must always be upon erroneous disparity, as demonstrated by the test that I have recounted above: an objectively justifiable sense of grievance on the part of an applicant.

58. Finally, this is not one of those cases in which two or more sentencing judges have dealt with two or more co-offenders. Entirely appropriately, the one judge dealt with all offenders, even though, presumably because of the later plea, one of them needed to be sentenced later. As well as that, the sentencing judge reflected on the specific sentencing principle that founds the ground of appeal, and gave detailed reasons for the approach adopted, including on the latter occasion of imposition of sentence. That is not fatal to the ground, of course, if the fundamental test is made out. But speaking generally, it may tend to make establishment of the ground more difficult.

59. With those propositions in mind, one can readily dismiss any submission based on contrasting the sentence of the applicant with that imposed on Ms Elamin. Her lesser objective role and, more particularly, her extremely compelling subjective case, provide an ample basis for the significant differentiation in length between the two sentences. It need not be discussed further.

60. In similar vein, it is to be recalled that the starting point of the sentence of the applicant was 7 years, and the starting point of the sentences of Mr Alebrahimi and Mr Pau’u was 8 years 8 months. That is a significant point of differentiation. And whilst it is true that the applicant played an objective role in the joint criminal enterprise that was more circumscribed temporally and physically, the sentencing judge was soundly entitled to place emphasis on his comparatively adverse criminal record. As well as that, the approach to the fact that it was the applicant who recaptured the victim was also well open.

61. Bearing in mind the significant difference in the starting points of the sentences imposed upon the applicant on the one hand and Mr Alebrahimi and Mr Pau’u on the other, I do not accept that the test for erroneous disparity has been made out here either.

62. Comparison between the sentence imposed upon Mr Humod and that imposed upon the applicant, however, gives rise to the need for reflection. It is to be recalled that the starting point of the applicant’s sentence was 7 years, but that of the sentence of Mr Humod was a little less than 6 years 5 months. It is also to be recalled that Mr Humod was involved in the brutality from the earliest stage, and engaged in repeatedly stomping on the head of the victim after he had been recaptured by the applicant.

63. Having said that, there was a clear distinction to be drawn between the criminal records of the two men; Mr Humod possessed some degree of insight into his offending, whereas the applicant possessed little or none; and, as I have said more than once, the applicant chose to play a critical role in the extension of the suffering of the victim by way of being the individual who recaptured him.

64. My ultimate opinion is that it could have been open to the sentencing judge to provide a little less differentiation between the starting point of the sentence of Mr Humod and the starting point of the sentence of the applicant. But acceptance of that proposition is merely to accept that it was a matter for the sentencing judge to assess how these two sentences were to interrelate, and that there was a broad range of permissible sentencing outcomes consequent upon that assessment. Having reflected on the matter, I am not satisfied that the applicant is entitled to experience an objectively justifiable sense of grievance when he compares the sentence imposed upon him with the sentence imposed upon Mr Humod.

65. In short, in my opinion, the applicant is not entitled to experience a justifiable sense of grievance when he compares his sentence with those any of his co-offenders, with the result that erroneous disparity is not established.

Orders

66. For those reasons, I propose the following orders:

1. Leave to appeal granted.

2. Appeal against sentence dismissed.

67. WILSON J: I agree with Button J.

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Decision last updated: 15 December 2022