Haouchar v R

[2014] NSWCCA 227

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Haouchar v R [2014] NSWCCA 227
Hearing dates:	3 October 2014
Decision date:	23 October 2014
Before:	Hoeben CJ at CL: [1] Rothman J: [2] RA Hulme J: [46]
Decision:	1.Leave to appeal refused.
Catchwords:	CRIMINAL LAW - SENTENCING - appeal - onerous conditions of employment not sufficiently considered - express reference - evidence sought to be adduced particularising conditions- no suggestion sentencing judge unaware of conditions - insufficient discount for assistance and plea of guilty - no Ellis factors - no arguable point
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bland v R [2014] NSWCCA 82 LB v R [2013] NSWCCA 70 Pearce v R (1998) 194 CLR 610 R v Ehrlich [2012] NSWCCA 38 at [67]; (2012) 219 A Crim R 415 R v Ellis (1986) 6 NSWLR 603 R v Sukkar [2006] NSWCCA 92; (1996) 172 A Crim R 151 FS v R [2009] NSWCCA 301 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category:	Principal judgment
Parties:	Haouchar Haouchar (Applicant) Regina (Respondent/Crown)
Representation:	Counsel: D Stewart (Applicant) T Smith (Respondent/Crown) Solicitors: Shiranica Danieli Lawyers (Applicant) J Pheils, Solicitor for Public Prosecutions (Respondent/Crown)
File Number(s):	2013/61907
Publication restriction:	None
Decision under appeal	Date of Decision: 2013-10-11 00:00:00 Before: Mahony DCJ File Number(s): 2012/222390

Judgment

1. HOEBEN CJ at CL: I agree with Rothman J.

1. ROTHMAN J: Haouchar Haouchar, the applicant, seeks leave to appeal the sentence imposed upon him in the District Court. The applicant pleaded guilty to the charge that between 26 August 2009 and 30 March 2012, he facilitated a car rebirthing activity that was carried out on an organised basis knowing it was a car rebirthing activity and it was carried out on an organised basis, contrary to s 154G(1) of the Crimes Act 1900.

1. There were two Form 1 offences, being two counts of dealing with property suspected to be proceeds of crime, contrary to s 193C(1) of the Crimes Act and the sentence imposed, taking into account the Form 1 offences, was a non-parole period of 1 year and three months, commencing 11 October 2013 and expiring 10 January 2015, with a remainder of term of 1 year and 3 months expiring on 10 April 2017.

1. The plea of guilty was entered on 1 August 2013 at Parramatta District Court and the applicant was sentenced on 11 October 2013. The maximum penalty for the offence for which the applicant was sentenced is 14 years' imprisonment and the legislature has established a standard non-parole period of 4 years' imprisonment.

1. The grounds of appeal are:

1: A miscarriage of justice was occasioned as a result of the absence of evidence as to the conditions in which the appellant was to be held in custody;

2: The discount for assistance to authorities was not an adequate reflection of the level of assistance, including consideration of the resulting onerous conditions the appellant would have to serve as a result of giving that assistance.

Facts and Remarks on Sentence

1. On 30 March 2012, police executed a search warrant at the applicant's premises in South Granville, a suburb of Sydney. At the time, the applicant and a co-accused, Marwan Akkouch, were working on a black Nissan Navara. There were a number of other intact vehicles and car parts, panels, engines and accessories throughout the yard and inside the garage.

1. The applicant provided the premises for storing and dismantling stolen vehicles and also provided assistance to his co-accuseds, Mr Akkouch and Khaled Bikai. The applicant also utilised parts obtained from Mr Akkouch and Mr Bikai to repair his own vehicles.

1. The Agreed Facts outlined 28 vehicles as the subject of the illegal activities, most of which were stolen. The applicant facilitated the activity by providing the premises, carrying out work on the vehicles and also registering the vehicles "no doubt for disposal" (Remarks on Sentence, 2).

1. On 17 July 2012, the applicant was arrested and granted bail. The sentencing judge noted the above facts, which were summarised in his Remarks on Sentence, generally at pages 1 to 2 thereof. The sentencing judge also remarked on the subjective circumstances of the applicant and treated the applicant generously in dealing with the findings of fact on subjective circumstances. I summarise the subjective circumstances noted by the sentencing judge.

1. The applicant was born in 1971, is married and has eight children aged between four and seventeen years. His Honour noted the remarks in the pre-sentence report that the applicant had difficulties with his family surviving financially at times, because of his lack of employment and the large number of children (ROS, 3).

1. The applicant was ashamed of the embarrassment he had caused to his family by his offending and expressed a willingness to undertake a community-based sentence and continue to address his mental health issues (ROS, 3). The sentencing judge accepted an assessment of the applicant as being a low to medium risk of re-offending (ROS, 3).

1. The sentencing judge also noted the applicant's mental health and that it was currently managed by his general practitioner and, as a consequence, generally stable. However, the existence of those issues rendered the applicant as being unsuitable for a community service order, noting s 86(1) of the Crimes (Sentencing Procedure) Act 1999 (ROS, 3).

1. Two psychiatrists reports were tendered, one from each of Dr Nielssen and Dr Allnutt. His Honour noted each of the reports and summarised a number of aspects of the report of Dr Nielssen, in particular, to the benefit of the applicant. Those matters included the applicant's panic disorder, initially relating to the death of his uncle, which was described as "chronic and disabling" and rendered him unable to seek employment (ROS, 4).The sentencing judge noted that, as a consequence of the mental health issues to which Dr Nielssen referred, the applicant would find the experience of imprisonment far more onerous than would be usual and would find it difficult to adjust to being detained in a confined space. Dr Nielssen also expressed the opinion that the applicant would be unlikely to receive his medication (or at least medication of a particular kind) as a consequence of which he may suffer uncomfortable withdrawal symptoms.

1. Dr Allnutt's report, dated 6 December 2005, was redacted. While it does not affect the circumstances of this case, much care must be taken in accepting a redacted expert opinion, where the judge is not apprised of the material that is deleted because the deleted material may qualify other matters that are then before the Court. Nevertheless the redacted material was tendered by agreement and the report, after redaction, was relied upon by the sentencing judge (ROS, 5). Dr Allnutt recommended a program of ongoing treatment.

1. The applicant was called in evidence in the sentence hearing and confirmed the effect of his panic disorder and his fears for spending time in confined spaces due to his psychiatric condition (ROS, 5). The applicant agreed that a full time sentence of imprisonment would not be absolutely unbearable, but that it would be very difficult (ROS, 7).

1. While the applicant accepted that the charge to which he had pleaded was a serious matter and the offending had taken place over a long period of time (ROS, 5), the applicant maintained that he was not the planner or organiser (or "the brains behind") the illegal endeavour and the applicant was regretful of the mistake he had made (ROS, 6).

1. While the applicant conceded that he had, on previous occasions when being sentenced for criminal conduct, given evidence of his remorse and the lack of any likelihood of criminal re-offending, he suggested that, this time, his Honour should believe his evidence to that effect because of the age of his children and his own age diminishing the possibility for criminal activity.

1. His Honour, in a thoughtful and well-reasoned set of remarks, noted that the evidence established that the applicant had not acquired the vehicles, but did establish that there were a large number of them and that the applicant had facilitated this illegal enterprise over a long period of time (ROS, 10). The rebirthing took place on the applicant's premises, as noted above. The applicant brought skills he had learnt to the work involved and his involvement was not just labour. The applicant was also involved in the re-registration and disposal of the vehicles over a long period of time (ROS, 10).

1. The sentencing judge referred to the principles of sentencing and, in particular, sentencing for this kind of offence, none of which principles are the subject of criticism in these proceedings.

1. After noting the subjective matters, a number of which are recited above, including the anxiety disorder, his Honour noted overseas trips that involve air travel in very confined spaces over a long period of time (which qualifies the alleged disability and its effect).

1. The criminal offending was part of a planned and organised activity.

1. Further, the sentencing judge did not accept the applicant's evidence that he tried to stop his involvement in the illegal activity. There was no evidence of any such attempt (ROS, 13).

1. His Honour found that there were no exceptional circumstances based on the subjective features of the case (ROS, 9) and noted that the applicant had a number of prior offences for dishonesty (ROS, 2-3 and ROS, 13).

1. His Honour noted that this would be the applicant's first time in custody and, in finding special circumstances, noted that the applicant would be in protective custody in prison, that he would require treatment and medication for his anxiety disorder, and that, in due course, the applicant will need to undertake rehabilitation processes in the community (ROS, 14). As a consequence, his Honour fixed a lower non-parole period, being 50% of the total term of imprisonment.

1. Lastly, not in the order of his Honour's remarks, but for the purpose of these reasons, his Honour noted the assistance to police and referred to the affidavit tendered in that respect outlining the "full co-operation and assistance" that the applicant had provided to police. The sentencing judge noted that the assistance provided was "significant and useful" (ROS, 6) and that the applicant provided evidence that his assistance will continue in respect of other proceedings (ROS, 12).

1. His Honour allowed a combined discount of 50% for his plea of guilty and his assistance to authorities (ROS, 12). While noting the need for parity, proportionality and avoidance of double punishment, referring, in particular to Pearce v R (1998) 194 CLR 610 at [45], his Honour noted that the shorter non-parole period imposed upon the applicant would not create any issues in that regard, because there are rational bases for any shorter sentence to be imposed on the applicant.

Ground 1: A miscarriage of justice was occasioned as a result of the absence of evidence as to the conditions in which the appellant was to be held in custody.

1. This ground of appeal, or application for leave to appeal, is manifestly unarguable. The sentencing judge was informed the applicant would be imprisoned in the Special Protection area at Long Bay as a consequence of the assistance he had rendered to police.

1. There is no suggestion that a judge of the District Court dealing with sentencing would not be familiar with the Special Purpose Centre to which the applicant would be confined. Moreover, his Honour accepted that the applicant's conditions of custody within the Special Purpose Centre were generally to be more onerous than those experienced by the general prison population.

1. In effect, the applicant now seeks to put before this Court, on appeal, additional evidence of particular circumstances that are experienced in the Special Purpose Centre, which evidence could have been adduced at sentence, if thought appropriate, and which material, frankly, would be well known and is well known to judges of the District Court dealing with criminal sentencing and judges of this Court with like duties.

1. Sentencing proceedings are not a first step in a process that is intended to be finalised on appeal. Parties are not permitted to enhance their cases on appeal by introducing new or different evidence, particularly evidence that was, or would have been, available at the sentence hearing.

1. His Honour expressly took into account the conditions of custody that, in his Honour's view, were more onerous than would ordinarily be experienced.

1. This ground of appeal must fail. Further, the ground has no basis in the Remarks on Sentence. Nor is there any basis for assuming his Honour was unaware of the onerous conditions that he expressly took into account.

Ground 2: The discount for assistance to authorities was not an adequate reflection of the level of assistance, including consideration of the resulting onerous conditions the appellant would have to serve as a result of giving that assistance.

1. To some extent, at the oral hearing, there was a degree of double counting in relation to this ground of appeal and the matters raised in support of ground 1. The applicant sought to rely upon his mental health issues in support of the issues associated with ground 2. Nevertheless, ground 2 is a quite separate issue from that raised by difficulties associated with the mental health issue.

1. His Honour fixed a combined discount of 50% for the plea of guilty and assistance to authorities. Judgments of this Court have long established the principles to be applied in dealing with such issues: see Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81]; Bland v R [2014] NSWCCA 82 at [88]; R v Sukkar [2006] NSWCCA 92; (1996) 172 A Crim R 151 at [5]; R v Ehrlich [2012] NSWCCA 38 at [67]; (2012) 219 A Crim R 415; LB v R [2013] NSWCCA 70 at [62].

1. Two general propositions must be stated. First, sentencing is not an arithmetic exercise. A sentencing judge does not simply calculate discounts without regard to the purposes of sentencing prescribed by the Crimes (Sentencing Procedure) Act 1999 and the need to impose a sentence that carries out such purposes, including punishment, deterrence (both general and specific), the protection of the community, the promotion of rehabilitation, denunciation and reform: see s 3A of the Crimes (Sentencing Procedure) Act.

1. The discount to be provided for the combined effect of a plea of guilty and assistance to authorities has been outlined on a number of occasions. The history and development of the principles were discussed by me in FS v R [2009] NSWCCA 301 (Campbell JA and Howie J agreeing). I recite the following more relevant extract:

"[17] The matters associated with a level of discount were discussed by the Court of Criminal Appeal in SZ v R [2007] NSWCCA 19, in which the Court made it clear that a combined discount for pleas of guilty and assistance should not normally exceed 50% and that discounts exceeding 50% should be reserved for very exceptional circumstances.

[18] In SZ v Regina, Buddin J, with whom Simpson J and Howie J agreed, said:

[52] I acknowledge, as did Latham J in Sukkar (supra), that there will be cases in which a combined or composite discount of more than 50% is called for. There may well be a case in which the assistance proffered is of a quite extraordinary kind. Alternatively there may be a case in which the offender is entitled to an additional discount, in accordance with the principles enunciated in R v Ellis (1986) 6 NSWLR 603, on account of having disclosed information which was otherwise unknown to the authorities. Indeed, composite discounts in excess of 50% have been allowed on several occasions when this Court has proceeded to re-sentence following a successful appeal by an offender. See, for example, R v NP (supra); R v OPA [2004] NSWCCA 464 and R v AMT [2005] NSWCCA 151.

[53] However, in light of the authorities to which I have referred and particularly given the statutory mandate contained in s 23(3) of the Act, it is my opinion that a combined discount exceeding 50% should be reserved for an exceptional case. Counsel for the applicant went so far as to suggest that a combined discount of 75%, comprising a discount of 25% for the plea of guilty to which would be added a further 50% for assistance to authorities, may be available in an appropriate case. In view of the matters to which I have referred, I regard such a submission as being simply untenable. Apart from any other consideration, the aggregation of discrete discounts is at odds with the observations of Gleeson CJ in Gallagher (supra) which are recited in the extract from El Hani (supra) which appears at par 31 of this judgment. See also R v NP (supra) at pars 30 and 47.

[19] In the same judgment, in separate comments agreeing with Buddin J, Howie J said:

[7] Counsel for the applicant argued that a proper application of both the guideline in Thomson and Houlton as to the effect of the utilitarian value of a plea of guilty and the acknowledged range of the discount available for assistance meant that it was legitimate in an appropriate case to discount a sentence by up to 75 per cent. It was argued that, as the discount for the plea and the discount for assistance reflect two different policies and did not overlap, because the utilitarian value of the plea had nothing to do with contrition, the court should give them both their full effect. But the argument simply overlooks the fact that it is impossible to see how a sentence that is only 25 per cent of what would otherwise be appropriate could not be 'unreasonably disproportionate to the nature and circumstances of the offence'.

[8]I accept that what is 'unreasonably disproportionate' is not simply determined by the objective facts of the offence and has to take into account matters such as the threat posed to the offender by reason of the assistance given and the nature and extent of the assistance: R v C (1994) 75 A Crim R 309. But this does not relieve the judge from the primary task of imposing a sentence that reflects the objective circumstances of the offence: R v WHS (NSWCCA, unreported, 27 March 1995). The decision in York v R [2005] HCA 60; (2005) 221 ALR 541 does not suggest otherwise.

[20] It is with those principles in mind that one must analyse the comments of the sentencing judge as to the deduction that has been applied in this case. Citing, as he did, the comments of Howie J in R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151, which citation is referred to at [8] above, his Honour the sentencing judge referred to a "standard deduction" of 40%, unless there were exceptional circumstances. Such a statement does not emerge from the principle espoused by Howie J in Sukkar.

[21] There are two quite distinct circumstances that arise. The first is a circumstance where the offender will spend the sentence, or a substantial part of the sentence, in more onerous conditions than the general prison population. The second circumstance is where the offender will not suffer more onerous conditions of imprisonment for a substantial portion of the term of imprisonment. In the latter case, unless one can show exceptional circumstances, the reduction for the plea of guilty and assistance should be no more than 40%. In the earlier case (i.e. where there will be more onerous conditions of imprisonment) the 40% figure is inapplicable. In the latter situation the reduction for the plea of guilty and assistance is no more than 50%, unless very exceptional circumstances are disclosed. Onerous conditions of imprisonment are not exceptional circumstances. They are often a corollary of the assistance granted.

[22] Moreover, there is no "standard deduction". There is a percentage deduction to obtain a result, below which sentencing judges should not reduce a sentence, unless there are exceptional, or very exceptional, circumstances, because, inter alia, a "discount" of such magnitude would usually take the sentence to a level lower than could properly reflect the objective circumstances of the offence."

1. Particular attention, in the above lengthy citation, must be given to the encapsulation of the previous matters in [21] of FS, supra. Where there will not be more onerous conditions of imprisonment, the reduction for the combined effect of plea of a guilty and assistance should be no more than 40%, other than in exceptional circumstances. Where, as here, there will be more onerous conditions of imprisonment, then the combined reduction for the plea of guilty and assistance should be no more than 50%, unless very exceptional circumstances are disclosed. In that latter aspect, onerous conditions of imprisonment are not exceptional circumstances, they are part of the process by which a sentencing judge fixes a figure up to 50% and are, as stated in FS, a corollary of the assistance granted.

1. The judgment in FS related to sentencing under Commonwealth legislation, but the Court applied to the Commonwealth legislation, with some qualification, the principles that have been applied under the State legislation for some period.

1. Ultimately, the process upon which a sentencing judge embarks is not a process of arithmetic calculation or the blind application of percentage discounts. It is a process by which a proper sentence is fixed that takes account of all the purposes of sentencing to which, in this case, the sentencing judge referred. There is a point at which, regardless of the need to take proper account of assistance to authorities, a sentence does not reflect and would not reflect the seriousness of the offence for which it is being imposed.

1. The sentencing judge remarked that the cooperation with authorities and assistance thereto was "full". His Honour received a confidential affidavit. There were no Ellis factors (R v Ellis (1986) 6 NSWLR 603). Nor was the assistance, even though at a high level, exceptional, such as where persons have risked themselves with violent offenders to wear a wire.

1. In my view, the applicant has shown no arguable error in the approach of the sentencing judge. The applicant has not shown "very exceptional" circumstances. Nor has the applicant shown any of the well-known bases upon which an appellate court will interfere with the exercise of discretion by a sentencing judge in fixing and imposing an appropriate sentence.

1. The sentencing judge is engaged in a process of intuitive synthesis. In my view, the sentence imposed could not legitimately be lower and still impose a sentence that is appropriate for the offending and the offender in question. This ground of appeal is not arguable.

Conclusion

1. Neither ground of appeal is arguable. No error has been disclosed that would warrant interference by this Court with the exercise upon which the sentencing judge embarked.

1. Moreover, even if there were an arguable ground of appeal and if it were to be considered error, the applicant has not satisfied the condition imposed by s 6(3) of the Criminal Appeal Act 1912, namely, the applicant has not satisfied the Court that a less severe sentence is warranted in law and should have been imposed.

1. I would propose that leave to appeal be refused.

1. RA HULME J: I agree with Rothman J.

**********

Decision last updated: 23 October 2014