Hayek v The Queen

[2006] NSWCCA 5

CITATION:	HAYEK v R [2006] NSWCCA 5 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	30 January 2006
JUDGMENT DATE:	30 January 2006
JUDGMENT OF:	Giles JA at 1; Howie J at 12
EX TEMPORE JUDGMENT DATE:	01/30/2006
DECISION:	Leave to appeal granted and any necessary extension of time granted. Appeal dismissed.
CATCHWORDS:	Sentencing - whether excessive - matters on which applicant relied taken into account - applicant dealt with leniently - no question of principle.
PARTIES:	Fadi HAYEK v R
FILE NUMBER(S):	CCA 2005/1844
COUNSEL:	Applicant in person P Power SC - Crown
SOLICITORS:	S Kavanagh - Public Prosecutions

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5/11/0045
LOWER COURT JUDICIAL OFFICER:	Gibson DCJ
LOWER COURT DATE OF DECISION:	30/01/2006

CCA 2005/1844
DC 5/11/0045

GILES JA
HOWIE J

Monday 30 January 2006

Regina v Fadi HAYEK

Judgment

1 GILES JA: The applicant pleaded guilty to the offences of taking and driving a conveyance without the consent of the owner and possessing implements to enter and drive a conveyance. The offences were under s 154A(1)(a) and (b) respectively of the Crimes Act 1900, and carried maximum penalties of imprisonment for five and seven years. Four summary offences were placed on a s 166 certificate, being in brief dangerous driving, possessing the prohibited drug methylamphetamine, carrying cutting weapons and driving while disqualified. It is, I think, unnecessary to relate the statutory basis for and the maximum penalties in relation to those offences.

2 The judge imposed partially concurrent and partially cumulative sentences amounting overall to a non-parole period of imprisonment for two years and one day, and an additional period of nine months, the overall sentences commencing on 14 July 2004. The applicant seeks leave to appeal against severity of sentence. Whether he also needs an extension of time for that purpose need not be gone into.

3 In short, the facts were these. On 14 July 2004 the applicant stole a car left unattended with the keys in the ignition. The police were notified, the car was seen and there was a high speed pursuit, in which the judge correctly described the driving as “a very bad drive in a manner dangerous”. The pursuit was terminated because of the dangerous driving. The applicant was shortly thereafter located and arrested. He was found in possession of .02 grams of methylamphetamine, numerous car keys for obtaining entry into various makes of cars, and two folding knives. He was unlicensed, having been disqualified from driving since at least July 2001.

4 The applicant appeared unrepresented. His written submissions were as follows:

“1. That I have shown remorse through out these charges and to prove that, I’ve pleaded guilty ASAP to all charges.

2. While I’ve been in custody for these charges my mother had passed away and since my mother had passed away, it has change my way of life. I have my father and his very old and very sick. He has a very bad heart problems and I am very concern about him. He needs as much support he can get.”

5 In addressing the Court the applicant made plain that he was concerned for the health and welfare of his father, and he said that he had had an excellent history whilst in gaol, had been working, and had been able to overcome his drug dependency. He expressed his quite understandable desire to see his two children and stressed that he really thought about changing his life.

6 Material to the matters raised in the submissions, the judge said this in his remarks on sentence:

“He [the applicant] gave evidence, and I accept the fact that his mother died just recently. His father is now on his own, and this has caused him to have second thoughts about the way he’s been living. He expresses remorse in what he’s done. How true that is, I don’t know. He said that he’s sorry and that he is unlikely to offend again. Counsel appearing for him says that he has reached a watershed in his life and that this is his opportunity. It may be that he has. He says that he was involved in gambling and drugs, in relation to the matter, he is trying now to cure himself of and he wants to start a new life and he has a job waiting for him when he comes out. It is to be hoped that he carries that out, and he said that in his submission I would find special circumstances. With some hesitation I will, but that does not mean that he hasn’t got to serve a period of time in custody in addition to that which he has served.”

7 The judge recognised that the applicant had pleaded guilty “at the earliest time”, and gave him a 25 percent discount on sentence. When finding special circumstances, the judge said that he found it “in his remorse and the problems that have affected the family and the prospects of his rehabilitation”.

8 In my view, he gave the applicant the benefit of the doubt as to remorse and sentenced him accordingly. The judge also plainly recognised the applicant’s family situation and, albeit with hesitation, also sentenced him on the basis that he had come to a change in his way of life. There is no question of the judge overlooking or failing to give weight to those matters raised in the applicant’s submissions.

9 It is appropriate to consider more widely whether the sentences were excessive. I do not think they were. The applicant had quite an appalling criminal history involving car stealing, car jacking, larceny and driving whilst disqualified. As at 14 July 2004 he was on bail for a number of such offences committed in 2003. It may be noted that the judge does not appear to have taken this into account. In my opinion, the applicant was dealt with quite leniently.

10 There is one matter to which reference should nonetheless be made. As has been indicated, the judge found special circumstances. The effect was to vary the statutory ratio by a month. In his submissions the applicant said that he would like more parole. The Crown drew attention to the fairly minimal variation in the statutory ratio, and there was some discussion of giving greater effect to the finding of special circumstances, an effect which could realistically be given only by reducing the period of two years and one day by some amount. In my opinion, however, that is not something which can or should be done unless it is thought that the sentences, including the ratio between the non-parole period and the additional period, were other than that for which the applicant should appropriately have been sentenced. I do not think that can be said.

11 In my opinion, therefore, while leave to appeal should be granted and any necessary extension of time also be granted, the appeal should be dismissed.

12 HOWIE J: I agree.

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16/02/2006	-	CCA file number amended - Paragraph(s) coversheet
06/03/2006	-	- - Paragraph(s) -
28/08/2006	-	date omitted in data base cover sheet - Paragraph(s) -