Fajloun and Fajloun v The Queen
[2011] NSWCCA 41
•14 March 2011
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Fajloun & Fajloun v R [2011] NSWCCA 41 Hearing dates: 30 July 2010 Decision date: 14 March 2011 Before: Allsop P at 1, RS Hulme J at 1, McCallum J at 1 Decision: 1. In respect of Raad Fajloun:
(a) Leave to appeal be granted.
(b) The appeal be allowed.
(c) The sentences imposed by the District Court on 19 December 2008 be quashed and in lieu thereof:
(i) in respect of count 3, sentence the applicant to imprisonment with a non-parole period of two years commencing on 19 November 2007 and expiring on 18 November 2009 with a balance of term of one year commencing on 19 November 2009;
(ii) in respect of count 2, sentence the applicant to imprisonment with a non-parole period of four years commencing on 19 May 2008 and expiring on 18 May 2012 with a balance of term of three years commencing on 19 May 2012; and
(iii) in respect of count 1, sentence the applicant to imprisonment with a non-parole period of five years commencing on 19 November 2008 and expiring on 18 November 2013 with a balance of term of three years commencing on 19 November 2013.
(iv) The applicant is eligible to be released on parole on 19 November 2013.
2. In respect of Mikel Fajloun:
(a) Leave to appeal be granted.
(b) The appeal be allowed.
(c) The sentences imposed by the District Court on 19 December 2008 be quashed and in lieu thereof:
(i) in respect of count 1, sentence the applicant to imprisonment with a non-parole of four years commencing on 19 December 2008 and expiring on 18 December 2012 with a balance of term of three years commencing on 19 December 2012; and
(ii) in respect of count 2, sentence the applicant to imprisonment for a fixed term of two years and three months commencing on 15 November 2010 and expiring on 14 February 2013.
(iii) The applicant is eligible to be released on parole on 15 February 2013.
Catchwords: CRIMINAL LAW - appeal - sentencing - offences of aggravated breaking and entering, aggravated kidnapping and assault occasioning actual bodily harm - whether sentences manifestly excessive - whether error in degree of partial accumulation - whether error in assessment of objective seriousness of crime - whether error in failing to take into account evidence of mental condition - whether insufficient weight given to good character and likelihood of reoffending. Legislation Cited: Crimes Act 1900 (NSW) s 59(1), 86(2), 112(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
Criminal Appeal Act 1912 (NSW) s 7(1A)Cases Cited: Georgopolous v R [2010] NSWCCA 246
Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498
Sivell v R [2009] NSWCCA 286
R v Terkmani [2009] NSWCCA 142
R v Way [2004] NSWCCA 131; 60 NSWLR 168Category: Principal judgment Parties: Raad Fajloun (First Applicant)
Mikel Fajloun (Second Applicant)
The Crown (Respondent)Representation: Counsel:
C Nash, D Kang (First Applicant)
P Boulten SC (Second Applicant)
D Arnott SC, J Pickering (Respondent)
Solicitors:
Ford Criminal Lawyers (First Applicant)
Adam Houda Lawyers (Second Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2006/11973, 2006/13135 Decision under appeal
- Jurisdiction:
- 9101
- Date of Decision:
- 2008-12-19 00:00:00
- Before:
- Cogswell DCJ
- File Number(s):
- 1197/2008
Judgment
THE COURT: The applicants, Raad Fajloun and Mikel Fajloun, are brothers who were convicted after trial of offences that occurred on Saturday 12 November 2005 from about 7 am. The offences concerned the violent breaking into an apartment (by both men) in which the estranged wife of Raad (Klaudine Fajloun) lived. The door to the apartment was broken down using a sledgehammer. Mrs Fajloun was then violently dragged from the premises, by her hair, down three flights of stairs on a tiled staircase, out to the car, into which she was bundled and then was driven to the premises of the brothers' parents. There, she was kept against her will by Raad for eight hours before escaping. While there, she was beaten by Raad, Mikel having departed. We will return in some more detail to the facts. The above summary is sufficient to understand the seriousness of what occurred, the charges brought against the brothers and the sentences imposed on them upon their conviction. We will, from time to time, refer to the persons involved by their first names. No disrespect is intended by so doing.
Each was convicted of two offences:
(a) Count 1 - on 12 November 2005 aggravated (in company) breaking and entering a dwelling-house and committing a serious indictable offence, namely kidnapping Klaudine Fajloun (s 112(2) Crimes Act 1900 - maximum penalty 20 years' imprisonment - standard non-parole period 5 years' imprisonment);
(b) Count 2 - on 12 November 2005 aggravated (in company) kidnapping Klaudine Fajloun (s 86(2) Crimes Act 1900 - maximum penalty 20 years' imprisonment).
Raad was convicted of a third offence being:
(c) Count 3 - on 12 November 2005 assaulting Klaudine Fajloun occasioning to her actual bodily harm (s 59(1) Crimes Act 1900 - maximum penalty 5 years' imprisonment).
Each applies for leave to appeal from the severity of the sentences imposed upon him in the District Court on 19 December 2008 by the sentencing judge (Cogswell DCJ).
Raad was sentenced to a total term of imprisonment of twelve years including an effective non-parole period of seven years commencing on 19 November 2007 (being the date the jury returned guilty verdicts). The three individual sentences imposed upon Raad were as follows:
(a) Count 1 - six years non-parole period commencing 19 November 2007 and expiring on 18 November 2013, with a balance of term of six years expiring on 18 November 2019.
(b) Count 2 - four years non-parole period commencing on 19 May 2010 and expiring on 18 May 2014, with a balance of term of three years expiring on 18 May 2017.
(c) Count 3 - two years non-parole period commencing on 19 November 2012 and expiring on 18 November 2014, with a balance of term of one year expiring on 18 November 2015.
Mikel was sentenced to a total term of imprisonment of nine years with an effective period in custody from the date of sentencing of five years and two months, having been in pre-sentence custody for these offences for four months and four days before obtaining bail. His two individual sentences were as follows:
(a) Count 1 - five year non-parole period commencing 19 December 2008 and expiring on 18 December 2013, with a balance of term of four years expiring on 18 December 2017.
(b) Count 2- fixed term of four and a half years commencing on 19 August 2009 and expiring on 18 February 2014.
Before turning to the grounds of appeal, we will set out the facts in some more detail, describe the sentencing proceedings and identify some relevant aspects of the remarks on sentence.
Facts
Raad Fajloun was born in 1964 and was aged 41 years at the time of the offences. Mikel is his younger brother who was born in 1978 and was 27 years old at the time of the offences. Raad and Klaudine Fajloun had been married for ten years, but they had separated. She was living in a rented unit in North Parramatta. There were four children of the marriage. The children did not live with Mrs Fajloun after she left the matrimonial home. In the week prior to the events in question, Raad asked Klaudine for "another chance ... for family". He persuaded her to stay with him at the former matrimonial home. They argued and he was violent. On one occasion, he threatened to kill her which led to her ringing the police. When the police came, she asked to be taken back to her unit. On Friday 11 November 2005, the day before the offences, in the early hours of the morning and again in the afternoon, Raad went to the flat at North Parramatta and asked to be let in, speaking on the intercom. Klaudine refused to let him in. She contacted the police stating "I am scared for this man and I want put AVO". To this end, she went to the police station and made a statement.
The following morning, at about 7 am, Raad and Mikel went to the apartment. Raad apparently borrowed a key from one of the residents to the apartment block and entered the ground floor. The apartment of Klaudine was on the third floor. The steps to the third floor were tiled. One of Raad and Mikel was carrying a sledgehammer. They had driven to the unit and parked the car directly outside. The two men broke down the apartment door using the sledgehammer and entered the lounge room. Raad forced Klaudine out of the apartment and dragged her down the stairs by the hair. Once downstairs, she was bundled into the back seat of Mikel's car with Raad seated beside her. Witnesses observed Klaudine screaming, fighting and trying to get away. Mikel threw the sledgehammer into the front passenger seat and drove the car to their parents' house in nearby Guildford. A witness heard him say when he closed the car door, "That will fucking teach you." During the journey, Raad swore at Klaudine, pulled her hair and told her that she would be killed. Mikel joined in the threats, telling her: "We can do whatever we like and no one would know and no one will find us."
At Guildford, Mikel escorted Klaudine inside with Raad. Mikel did not stay. He returned sometime later with food and cigarettes for his brother and then left again.
Klaudine was held captive until approximately 3 pm. Inside the house, she was kicked by Raad to the left side of the ribs, hip and thigh, breaking one of her ribs. Her hair was pulled, her face smacked with his open hand and she was also struck over the head with the handle of an aluminium mop causing it to break. Ultimately, when Raad appeared to be asleep, Klaudine waved to a woman outside through a window. The woman raised the alarm and police later came to the premises.
Raad gave evidence at the trial, but not at the sentencing hearing. He gave an account that he had borrowed his brother's car, heard his wife's screams coming from her unit and broke down the front door to rescue her with a sledgehammer which happened to be in the car. He claimed he acted alone and his brother was not with him. The account could not have been accepted by the jury in the face of a number of eye witnesses who saw two offenders acting together.
The sentencing hearing
Mikel did not give evidence at the trial, but did so at the sentencing proceedings. He maintained his innocence and claimed he did not go inside the apartment. His account of events, contrary to an earlier albi notice served on the Crown and his case put in cross-examination of the victim by his counsel at the trial, was that he had spoken to his brother once on the day of the offence when his brother telephoned him asking him to pick him up from Klaudine's unit where he said his brother Raad was living with her at the time. This was contrary to an exhibit in the trial indicating a number of telephone calls between the two of them in the late hours of the previous evening and the early hours of the morning in question. It was also contrary to a statement that he had made to police this his brother was not living at the unit. At the sentencing proceedings, Mikel claimed that when he arrived at the address he saw his brother smashing in the door with a sledgehammer. From the open front door, he said he could see Klaudine was on the balcony ready to jump off. He claimed his brother forced her to go down stairs with his arm around her shoulder or on her arm because she was hysterical. Mikel claimed that he did not set foot inside Klaudine's apartment, but on his brother's instructions picked up the sledgehammer in front of the door to the apartment and put it in the car. He claimed that he did not recall seeing his brother dragging his wife by the hair down the steps. Mikel denied threatening Klaudine in the car. His evidence was that she settled down and he thought that everything was OK when he dropped them off at Guildford. He claimed he returned on two further occasions and on the last occasion brought with him a pizza and both of them said everything was "OK". The doctor who examined Klaudine at the hospital to which she was taken gave evidence based on a urine analysis that indicated there had been quite some time since Klaudine had eaten or received any form of nourishment. The sentencing judge rejected Mikel's account.
Remarks on sentence
In a detailed set of remarks on sentence, the learned sentencing judge found that Raad was the initiator of the crimes, but that there was a degree of joint premeditation and planning. In respect of count 1, the judge was satisfied that the crime fell within the upper end of the middle range of objective seriousness of offences of the kind. In reaching this assessment, he took into account the following:
(a) the fact that one man was armed with an offensive weapon, the sledgehammer, which was used with shocking violence and significant force to break into the unit;
(b) there was a degree of premeditation and planning from late the following evening until shortly before the offence;
(c) Raad used corporal violence which was brutal in dragging Mrs Fajloun down the stairs by the hair with Mikel being present while this occurred;
(d) the crime "was attended by the infliction of actual bodily harm on Mrs Fajloun", a reference to the bruising on her knees resulting from being dragged down the tiled steps;
(e) the indictable offence of kidnapping was a more serious indictable offence than many; and
(f) the emotional harm caused to the victim, as evidenced by the victim impact statement, was substantial. She had thought she was safe in her home and was shocked at the entry of the brothers. She thought they would kill her and that she would never see her children again. She now feels a prisoner in her home. She has extreme fear of Raad, has frequent nightmares and flashbacks, stress, panic attacks, agitation, depression and a sense of grief and loss. These consequences, referred to by the sentencing judge are all natural human consequences of a violent and brutal attack.
In respect of count 2, in respect of Raad, the judge found the offence fell in the lower end of the mid-range of objective seriousness and in the case of Mikel at the lower end of the range of objective seriousness. (Given that there was no standard non-parole period involved with this count, it was perhaps unwise for the sentencing judge to express himself in language reflective of the Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A for the reasons expressed in Georgopolous v R [2010] NSWCCA 246 and Sivell v R [2009] NSWCCA 286.) The judge noted that detention lasted for some eight hours and that it involved a journey in a car and a detention at a house. Raad was primarily responsible for the detention and present at all times. Mikel's role was less serious, though he failed to alert the police.
In respect of count 3, which related solely to Raad, the judge found the offence aggravated by the use of the mop handle. He noted the injuries were serious, involving extensive bruising and a broken rib.
The judge recognised that neither brother had any significant record of previous convictions. Both men were recognised to be highly regarded within their families and community and as working men, who were entitled to rely on their good character. Neither, however, had "a strong claim to remorse."
In the case of Raad, the judge accepted that he had been a person of good character up until a few days before the offences, but indicated that in that connection he would take into account the acts of domestic violence, against his wife that had occurred in that period.
Mikel was looking after his elderly parents as well as playing a role in minding his own children as well as those of Raad. These, however, were not exceptional circumstances of hardship on third parties.
In the case of Mikel, the judge found that he was unlikely to reoffend, remarking that he was not so confident in the case of Raad. Whilst the judge accepted that Mikel may well have been influenced by his elder brother, he rejected any suggestion that this should operate as a mitigating factor and emphasised Mikel's mature years and adult life as a husband and as a father.
In the case of Raad, his Honour remarked "I accept that there are special circumstances for the balance of the term exceeding one third of the non-parole period namely, this is your first time in custody". (No complaint was made of this by the Crown: cf Georgopolous at [25].)
The remarks on sentence also contained an extensive discussion of the psychiatric evidence in relation to Raad to which we will come under the first ground of appeal.
We will deal not only with the arguments put on appeal by counsel, but also with matters that were raised by the Court in argument. The Crown raised no objection to the Court dealing with these additional matters.
Raad Fajloun
Ground One: The sentencing judge erred by failing properly to take into account the evidence of the applicant's mental condition.
It was submitted that the sentencing judge failed to take into account the evidence of the applicant's medical condition.
The submissions referred to a number of the psychiatric reports, taking from them aspects of their text that supported the proposition that there was a psychiatric illness suffered by Raad. Central to the argument was the change of view of Dr Sinclair, a psychiatrist employed by Justice Health. Dr Sinclair had originally opined, after briefly seeing Raad, that he was suffering from a delusional disorder or paranoid schizophrenia. This opinion was later disowned by Dr Sinclair. The submissions in relation to this ground traverse aspects of the evidence. In answer to the ground, it is necessary to recognise the totality of his Honour's comments over four pages upon the psychiatric evidence at [26] to [36] of the remarks on sentence which were as follows:
"[26] The second issue which I mentioned at the commencement of these reasons was Mr Raad Fajloun's psychiatric condition. This is a matter of some controversy. Mr Brady who appears for Mr Raad Fajloun in the sentence proceedings, but not in the trial, urges me to find that he was affected by a psychiatric condition at the time of the offences and remains so.
[27] There is a good deal of psychiatric and psychological evidence about Raad Fajloun. Part of the reason is that he was examined for the purposes of assessing whether he was fit for trial. In 2010 (as said) he was assessed for that purpose by Dr Westmore and Dr Nielssen, both experienced forensic psychiatrists. Dr Westmade was not able to reach a definite conclusion. He said it was unclear whether the way that Mr Raad Fajloun presented was affected by psychological or psychiatric factors or by cultural factors. Dr Nielssen's conservative approach was that he said he could not diagnose any psychiatric disorder without a proper and extensive history.
[28] A psychologist, Professor Stephen Woods, provided a report dated 29 July 2008. Professor Woods concluded that Mr Raad Fajloun was very probably suffering from a mental illness. He offered a preliminary diagnosis of delusional disorder of the persecutory type. However, he immediately qualified his opinions, referring to it as a preliminary diagnosis. He drew the attention of any reader of his report to the fact that he had seen Mr Fajloun on only one occasion in less than ideal conditions and had limited background documentation to assist with his assessment.
[29] The only other medical documentation was a report by Dr Allnutt that at 12 December 2007, he did not have access to Dr Westmore's report. Dr Allnutt's report was in fact in evidence before me and Dr Allnutt was unable to provide a firm conclusion about Mr Raad Fajloun.
[30] The medical professional who has had most to do with Mr Raad Fajloun is Dr Sinclair, a psychiatrist employed by Justice Health. She examined Mr Fajloun whilst he was in custody after being bail refused [sic] following his conviction. Her first examination was 15 August 2008. She reported a few days later, on 22 August 2008, and expressed the opinion that 'Mr Fajloun is suffering from a delusional disorder or paranoid schizophrenia. However, the possibility of a paranoid personality disorder on the background of a previous psychotic episode also exists.'
[31] Dr Sinclair organised a transfer of Mr Fajloun to the Mental Health Screening Unit in the corrective system. She did that because she had 'concerns that he definitely needs a more comprehensive, intensive assessment and ongoing mental state examinations because of the nature of his presenting symptoms.' She thought that assessment at the MHSU would clarify the diagnoses because he had various diagnoses.
[32] Dr Sinclair produced a further report, dated 30 October 2008. That report followed Mr Raad Fajloun's time in the Mental Health Screening Unit. Dr Sinclair concluded in that report as follows:
'In summary, after extensive review, by multiple consultant psychiatrists and a clinical psychologist, re-review and in-patient comprehensive screening assessment at the Mental Health Screening Unit, I am of the opinion that Mr Fajloun does not suffer from a major mental illness. There is no evidence now to suggest that he has a paranoid schizophrenia, a delusional disorder, or an ongoing psychotic process. I do believe, however, that he has strong narcissistic traits.'
She expressed confidence that he did not require ongoing medication. Asked about his condition at the time of the offences she said that 'with regard to the alleged offences there is no evidence to suggest Mr Fajloun was psychotic or suffering from any other major mental illness at that time. His actions may be related to his narcissism and cultural background.'
[33] When that report was received and went into evidence understandably Mr Brady wanted to cross-examine Dr Sinclair about what Mr Brady described as a '180 degree turn' in her opinion. She was examined and cross-examined before me on 12 December 2008. She had produced a further report the previous day. She said in that report that since her last report in October she requested a subsequent independent forensic psychiatric assessment by a senior forensic psychiatrist. That apparently occurred under the Senior Forensic Psychiatrist and Community Correctional Mental Health Services and Projects Manager on 20 November 2008. Dr Sinclair concluded in that report as follows:
'Cultural issues, personality factors and marital conflict appear to underlie the events, which led to these charges. Apparently, there is no overt evidence of mental illness and certainly fitness does not appear to be in question.'
She expressed the overall opinion that Mr Fajloun 'displays paranoid personality traits and exaggerated cultural factors.'
[34] In examination-in-chief on 12 December 2008, Dr Sinclair said that the time in the Mental Health Screening Unit provided an opportunity for what she described as a longitudinal assessment. In other words, Mr Raad Fajloun was seen on a day to day basis, being observed whilst he slept and ate, as well as being observed during daily interactions. Asked about her description of him displaying paranoid personality traits and exaggerated cultural factors she said that they were descriptions of his personality and not a diagnosis of psychiatric pathology.
[35] Mr Brady suggested to her that a limited number of people in the community have such traits. Dr Sinclair acknowledged that she was not familiar with the epidemiology of these particular features but said that he had those features a little more intensely than a majority of people in the community. She confirmed that he was not delusional. She acknowledged that his condition affects how he perceives things but confirmed that it was not a psychiatric diagnosis. She agreed that he had the personality structure which she described at the time of the offences. She was challenged about some behaviours which led to her previous diagnosis of psychiatric pathology. Examples were Mr Raad thinking that there were people behind the walls in the court room and an ability to heal pathology in his own body. Dr Sinclair said that during the long assessment in the MHSU there was no evidence of any delusional behaviour. When asked whether there must have been some delusional aspects about his behaviour she said that he has a tendency to say outrageous things and is quite engaging and entitled and says what she described as random things. She said that if the kinds of beliefs, drawn to her attention, were fixed and persisting then they may have been delusional but that there was no evidence in the time in the MHSU of such persistence. There was, she repeated, no evidence of any delusional or thought disorder when he was examined. She said he was aggrieved but not delusional. A delusion she said is something which is usually false and fixed and pervasive. It occupies people's lives and they spend a lot of time expressing it."
With the utmost respect to counsel, the careful and comprehensive analysis of the material clearly leads to the conclusion that the sentencing judge carefully considered all aspects of the evidence. The argument is, with respect, without merit.
Ground Two : The sentencing judge erred in relation to the degree of partial accumulation.
It was submitted that his Honour erred by imposing the accumulation of sentences in respect of each of the individual offences. This submission was made by reference to the commencement dates of the sentences for the three counts, being 19 November 2007, 19 May 2010 and 19 November 2012, respectively.
It was submitted that a greater degree of concurrency would have adequately reflected the serious criminality of all three offences as all were part of the one criminal episode being linked in time and place, the kidnapping having lasted some eight hours from 7 am to 3 pm. The fact that all three offences occurred on one day and involved the one victim also led to a requirement for greater concurrency. The individual sentences were also said to be excessive.
On the other hand, the Crown observed that the structure of the sentence could be considered to have given no effective punishment for count 2 or very little for the combined effects of counts 2 and 3 and that, given the terrifying circumstances of the victim's detention for a protracted period, it would have been open to the sentencing judge to have considered some further accumulation.
In fact, the extent of accumulation of Raad's non-parole period resulting from each of the sentences for the offences of kidnapping (count 2) and assault (count 3) was but 6 months, with an overall accumulation of 12 months. Whilst undoubtedly the connected nature of Raad's three offences meant that a substantial degree of concurrency of the three sentences was required, the additional and significant criminality involved in the second and third offences meant that the accumulation could well have been significantly greater than it was.
The kidnapping included the car journey during which the victim was told by Raad that she would be killed and her detention for some eight hours or so with that threat hanging over her. The third offence included the violence to which we have referred above. Nothing that occurred during the commission of the first offence reflected the criminality involved in these additional actions on the part of the offenders. This ground fails.
Ground Three: The sentencing judge erred in finding that the offence in count one was towards the upper end of the middle range.
The applicant submitted that the imposition of a non-parole period of six years was excessive. It was further submitted that there was no reason or justification to find this particular offence was towards the upper end of the middle range of objective seriousness based on the evidence in the case and comparative cases. Reference was made to R v Terkmani [2009] NSWCCA 142 and Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498.
We will come to the non-parole period in due course. The assessment of where the objective criminality of the offence fell in all the circumstances was an evaluative one made by the trial judge who heard all the evidence and was able to assess all the facts. Reference to other cases in this respect is of very little assistance. They are factually different. One involved a less serious indictable offence.
At [59] of his reasons the learned sentencing judge said:
"Because this crime is as objectively serious as it is and because it has the number of aggravating features that it does, I am not convinced that the standard non-parole period should not apply. .... This is clearly an offence which is, as I say, in the upper echelons of the middle of the range of objective seriousness and it is so serious that none of the factors in s 21A (3) which I have referred to result, in my opinion, in the standard non-parole period not applying and that applies in respect of both offenders."
His Honour's reasons, at this point, are, with respect, not clear. The caution and hesitation in the first sentence, does not sit easily with the non-parole period above the mid-range of five years. We are, however, satisfied from his Honour's reasons, that he was satisfied that the offence was at the upper end of the mid-range of objective seriousness. In our view, this evaluative conclusion made by his Honour was open to him. This grounds therefore fails. The legitimacy of the length of the non-parole period is a separate question and is dealt with below.
Ground Four: The sentencing judge erred in not finding that the applicant was unlikely to reoffend.
The submissions noted his Honour's remark that "I am not so confident about Raad Fajloun because of the descriptions given about him by the medical practitioners". It was submitted that if his Honour was able to place a good deal of weight on Dr Sinclair's opinions as to mental condition it was equally open to his Honour to place a good deal of weight on Dr Sinclair's opinion when Dr Sinclair in the same report referred to the applicant's positive steps towards rehabilitation. Dr Sinclair had concluded that she was confident that the applicant did not require ongoing medication and noted that the applicant now understood that during times of stress he would be able to seek help. Dr Sinclair said that the applicant's judgment was now intact and that he had gained a better insight into his situation. She had also noted that he had expressed his long term religious beliefs.
There was, however, ample basis for the judge's lack of confidence. As recounted in the report of Dr Sinclair, the applicant had initially been quite hostile and aggrieved about his situation. Raad had denied violence, threats and coercion towards his wife when he saw Dr Sinclair. The lack of fundamental remorse shown by Raad was a clear basis for the sentencing judge to express a lack of confidence in reoffending. This ground fails.
Ground Five: The sentence was manifestly excessive.
It should be recognised that through frightening and shocking use of violence to break into the home of Mrs Fajloun, the offenders committed a terrifying act of real brutality. The disconformity between the non-parole period of 6 years and the head sentence of 12 years, even taking into account the finding of special circumstances, raises the question whether the head sentence was excessive. The difference between the non-parole period and head sentence may have been brought about by the disconformity between a 20 year maximum sentence and a five year standard non-parole period for the offence under the Crimes Act, s 112(2). Given the types of offences capable of falling within the expression "serious indictable offence", and considering the kidnapping here, the head sentence of 12 years was, in our view, clearly excessive.
Leaving aside subjective and special circumstances, the non-parole period was reflective of his Honour's legitimate evaluative conclusion that the offence in count 1 was in "the upper echelons of the middle range of objective seriousness". However, the terms in which his Honour expressed his findings of special circumstances must logically have led to a reduction in the non-parole period from what it would otherwise have been. Raad's subjective circumstances should also have done so, even if the reduction on account of them had been small. But for these factors, we would find no fault with the six year non-parole period. Once they are taken into account, however, the six years does not seem to reflect properly his Honour's reasons and is too high. We would impose a five year non-parole period.
We would therefore quash the sentence for count 1. This Court is accordingly required to resentence. For the first count Raad should be sentenced to imprisonment for a non-parole period of five years with a further period of three years, giving a full term of eight years.
As to the second count, for which there was no standard non-parole period, taking into account his Honour's view as to the seriousness of the offence (the expression of which we have already commented upon) and all the circumstances of Raad, the non-parole period of four years and the balance of term of three years were clearly open and not excessive. Like count 1, this was a serious offence. We would not interfere with it.
Nor would we interfere with the sentence for the third count.
Mikel Fajloun
Ground One: The sentencing judge erred by finding that the objective criminality of count one was aggravated because it was attended by the infliction of actual bodily harm.
This ground was abandoned at the appeal.
Ground Two: The sentencing judge erred by characterising the objective seriousness of count one as being towards the upper end of the middle range.
The submission was that the assault that occurred at Guildford was not part of the circumstances for count 1. So much can be accepted. The primary judge found that the offence under count 1 was aggravated by the fact that Raad used violence on Mrs Fajloun by dragging her down the stairs on her knees by the hair.
It was submitted that the sentencing judge did not differentiate between the two offenders when considering the respective seriousness of the offences by the brothers.
The victim gave evidence at the trial that Raad pulled her by the hair and dragged her down the stairs, three flights on a tiled stairway on her knees. The photographs at the trial depicted bruising. These photographs were tendered against Raad at the trial and were tendered against Mikel on the sentence hearing.
Further, the judge took into account the fact that Mikel was less culpable than his brother. It was clear that the judge considered Mikel's culpability to be less serious than that of his brother although he classified the seriousness of their offending in the same terms. He imposed a lesser sentence upon Mikel for his offence.
In his approach to the issue of objective seriousness his Honour did make one error. That was to deal with that issue prior to, and independently of, the issue of motivation on the part of Mikel. The decision of this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [86] makes it clear that motivation is a matter going to objective seriousness. However, when he did come to consider the submission that Mikel acted under the influence of Raad, his Honour gave the possibility no weight. Hence the error had no effect on the result.
Otherwise, we are not prepared to conclude that his Honour's evaluative conclusion as to the seriousness of the offences under count 1 by both men in similar terms was erroneous in any way. This ground fails.
Ground Three: The sentencing judge erred by failing to give sufficient weight to the fact that Mikel had no significant prior record of convictions, that he was a person of good character and that he was unlikely to reoffend.
The submissions emphasised the generally favourable subjective features of Mikel. He had no significant record of prior convictions, a feature which the judge should have given some weight. It was submitted that Mikel presented an impressive body of evidence towards his general good character. The judge found that he was highly regarded within his family and within his community and as a working man. The judge found that Mikel was entitled to rely to some extent on his good character. The judge also made a finding that the applicant was unlikely to reoffend. Neither man, however, had exhibited remorse.
The favourable subjective features, it was submitted, should have led to the imposition of a non-parole period that was identifiably lower than the standard non-parole period of five years. The fact that this was not done, it was submitted, suggested that his Honour failed to give sufficient weight to his findings that in several important respects the applicant had very favourable subjective features.
We will deal with these arguments under ground 5.
Ground Four: The sentencing proceedings miscarried because the applicant has been left with a justifiable sense of grievance given the sentence imposed upon his co-offender, his brother Raad.
In light of the conclusions at which we have arrived in considering ground 5, it is unnecessary for us to deal with this ground.
Ground Five: The sentences are manifestly excessive.
The change we consider appropriate to Raad's sentence for the first offence requires a reduction in the sentence imposed on Mikel for the same offence. A fortiori is this so when it is recognised that like Raad, Mikel had not previously been in prison and the considerations that led his Honour to make a finding of special circumstances applied to Mikel also. Indeed, whilst his Honour made no such finding in the case of Mikel the relativity between the non-parole period and full term imposed on him for count 1 could only be justified upon the basis of such a finding. This Court should accordingly make it.
By parity of reasoning with that set out above for reducing the non-parole period imposed on Raad for the first count, we are of the view that the five year non-parole period imposed on Mikel was also manifestly excessive. We would maintain the one year difference in non-parole periods that was involved in the sentencing by the sentencing judge and impose a non-parole period of four years.
Although the balance of term of four years imposed on Mikel was not as obviously excessive as the additional six year term imposed on Raad, again it, and the total term of nine years, are not justified in all the circumstances. This is especially so once this Court has decided to reduce Raad's sentence for the first offence to nine years.
We do not believe a differentiation greater than we have indicated is appropriate for the sentences imposed on Raad and Mikel. While his Honour accepted that Raad was the initiator of the offences he pointed out that there was some degree of planning for hours before the offences occurred. In this connection, his Honour referred to some 7 phone calls between the offenders between 11.45 pm on the previous night and 5 am on the morning of the offences and some thereafter. His Honour concluded that Mikel did not physically handle the victim but it was he who used the sledgehammer to break the door down and that both offenders entered her unit. Mikel opened the car door so that the victim could be put into the vehicle, and was heard to say, "That will fucking teach you" and at another stage, "We can do whatever we like and no one would know and no one would find us." His Honour declined to place any weight on a suggestion that Mikel was under the influence of Raad.
In light of his Honour's findings, the conclusion is irresistible that, while Raad may have been the initiator of the offending, Mikel was a full participant in the first offence.
It seems clear from his Honour's remarks, from the difference in total terms, and possibly from the difference in non-parole periods that his Honour took the view that Mikel's subjective circumstances were more favourable than Raad's. That said, there remained the objective seriousness of the offence which could have been thought to argue for a sentence higher than the standard non-parole period. In these circumstances, an appropriate sentence to impose on Mikel for the s 112(2) offence is seven years, being a four year non-parole period and an additional balance of term of three years.
The sentence imposed on Mikel for the second offence must also be set aside. It is obviously the product of error. In the first place, it was a fixed term of four and a half years while the non-parole period imposed on Raad for his greater involvement in the same offence was four years. Secondly, in arriving at the sentence imposed on Mikel, his Honour took into account that Mikel had served four months and four days in pre-sentence custody, thus making his effective time in custody for this offence nearly five years.
Given the findings of the sentencing judge as to the comparative seriousness of the brothers' offences with which we agree and the sentence imposed on Raad, an appropriate sentence, before taking into account the pre-sentence custody, would be a fixed term in the order of two and a quarter years.
Resentencing
Once the sentence imposed for the first offence is reduced to what it should be, there is difficulty in achieving an appropriate sentencing result for Raad arising from the order in which his Honour directed the sentences to start. A proper result can be achieved by varying that order pursuant to s 7(1A) of the Criminal Appeal Act 1912 (NSW). Accordingly, in the case of Raad, this Court should quash all sentences and re-sentence Raad as follows:
(a) In respect of the third count, sentence the offender to imprisonment for a non-parole period of two years commencing on 19 November 2007 with a further term of one year commencing on 19 November 2009;
(b) In respect of the second count, sentence the offender to imprisonment for a non-parole period of four years commencing on 19 May 2008 with a further term of three years commencing on 19 May 2012;
(c) In respect of the first count, sentence the offender to imprisonment for a non-parole period of five years commencing on 19 November 2008 with a further term of three years commencing on 19 November 2013.
As to Mikel, we take into account the matters in his affidavit read on the appeal which describe, amongst other things, his life in prison.
The question of accumulation again arises, as does the relativity of the overall sentence with that of Raad. Some accumulation is called for. The two offences were separate, though part of the same overall activity. The sentences imposed on Raad for the first two counts are to be accumulated by six months. There is no reason why Mikel's sentences should not be accumulated likewise. However, regard should be had to the comparison of the overall sentences for both brothers and the need to set a just overall sentence. The time spent by Mikel in pre-sentence custody must also be taken into account and this can be most conveniently done by reducing the six month accumulation to a little under two months.
Thus, we would resentence Mikel as follows:
(a) In respect of the first count, sentence the offender to imprisonment for a non-parole period of four years commencing on 19 December 2008 with a further term of three years commencing on 19 December 2012.
(b) In respect of the second count, sentence the offender to imprisonment for a fixed term of two years and three months commencing on 15 November 2010 to expire on 14 February 2013.
The above sentences produce a result that Mikel will finish his non-parole period a little over nine months before Raad finishes his. However, Raad was in continuous custody from 19 November 2007 (the date of the finding of guilt) whilst Mikel was released on bail after serving 4 months and 4 days. In this context, the relativities of the overall sentences are, in our view, just.
It should not be thought that reducing the sentences in the manner that we have in any way condones or minimises the significance of the brutal and violent conduct of the two brothers. The sentencing judge referred to various cases in this Court of "domestic violence". That phrase is inapt (at least on this occasion) to describe the full seriousness of what happened. No express findings were made by the judge as to why these two men, who his Honour said were "highly regarded within their families and within their community and as working men", would inflict such a brutal episode of violence on their wife and sister-in-law, respectively. The sentences which should be imposed still reflect, in the clearest terms, the denunciation by this Court (and through it, the State, and community, of New South Wales) of the violent, brutal and terrifying attack on, and detention of, Mrs Fajloun by Raad and Mikel Fajloun.
The orders that we would make are:
(1) In respect of Raad Fajloun:
(a) Leave to appeal be granted.
(b) The appeal be allowed.
(c) The sentences imposed by the District Court on 19 December 2008 be quashed and in lieu thereof:
(i) in respect of count 3, sentence the applicant to imprisonment with a non-parole period of two years commencing on 19 November 2007 and expiring on 18 November 2009 with a balance of term of one year commencing on 19 November 2009;
(ii) in respect of count 2, sentence the applicant to imprisonment with a non-parole period of four years commencing on 19 May 2008 and expiring on 18 May 2012 with a balance of term of three years commencing on 19 May 2012; and
(iii) in respect of count 1, sentence the applicant to imprisonment with a non-parole period of five years commencing on 19 November 2008 and expiring on 18 November 2013 with a balance of term of three years commencing on 19 November 2013.
(iv) The applicant is eligible to be released on parole on 19 November 2013.
(2) In respect of Mikel Fajloun:
(a) Leave to appeal be granted.
(b) The appeal be allowed.
(c) The sentences imposed by the District Court on 19 December 2008 be quashed and in lieu thereof:
(i) in respect of count 1, sentence the applicant to imprisonment with a non-parole of four years commencing on 19 December 2008 and expiring on 18 December 2012 with a balance of term of three years commencing on 19 December 2012; and
(ii) in respect of count 2, sentence the applicant to imprisonment for a fixed term of two years and three months commencing on 15 November 2010 and expiring on 14 February 2013.
(iii) The applicant is eligible to be released on parole on 15 February 2013.
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Decision last updated: 14 March 2011
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