Hello v R

[2010] NSWCCA 311

New South Wales
Court of Criminal Appeal

CITATION:	Hello v R; El-Skaf v R; Bakkour v R; Hosainy v R [2010] NSWCCA 311 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20 September 2010
JUDGMENT DATE:	15 December 2010
JUDGMENT OF:	Latham J at 1; Rothman J at 62; Price J at 68
DECISION:	HELLO - (Applicant 1) 1. Leave to appeal granted. 2. Appeal allowed 3. Quash the sentence imposed on 24 November 2009 and in lieu, a non parole period of 2 years is imposed, to date from 17 November 2009, expiring 16 November 2011, with a balance of term of 17 months, expiring 16 April 2013. The applicant is eligible for release on 17 November 2011. EL-SKAF - (Applicant 2) 1. Leave to appeal granted. 2. Appeal dismissed BAKKOUR - (Applicant 3) 1. Leave to appeal granted 2. Appeal dismissed HOSAINY - (Applicant 4) 1. Leave to appeal granted 2. Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - appeals against sentence - pleas of guilty to one count of knowingly facilitate car rebirthing activity on an organised basis, pursuant to s 154G(1) of the Crimes Act 1900 - whether Judge erred in assessment of objective gravity of offences - whether disparity of sentence between co-offenders - whether Judge failed to take into account one offender's onerous bail conditions - whether sentences manifestly excessive.
LEGISLATION CITED:	Crimes Act 1900 Firearms Act 1996 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	R v Bilal Bakkour ; R v Nasis Javelosa [2009] NSWDC 405 R v Bilal Bakkour ; R v Nasis Javelosa [2009] NSWDC 405 R v Hamieh [2010] NSWCCA 189 R v Najem [2008] NSWCCA 32 Thalari v R [2009] NSWCCA 170 R v Way [2004] NSWCCA 131 Markarian v The Queen (2005) 228 CLR 357
PARTIES:	Mohamad HELLO - (Applicant 1) Hussein EL-SKAF - (Applicant 2) Bilal BAKKOUR - (Applicant 3) Nasir HOSAINY (aka JAVELOSA) - (Applicant 4) Regina - Crown Respondent
FILE NUMBER(S):	CCA 2008/16857; 2008/15722; 2008/16322; 2008/17822
COUNSEL:	A Martin - (Applicant 1) R Jankowski - (Applicant 2) H Dhanji - (Applicant 3) H Cox - (Applicant 4) J. Girdham - Crown Respondent
SOLICITORS:	N. Velcic - (Applicant 1) Ryan & Bosscher Lawyers - (Applicant 2) John Dooland - (Applicant 3) Brett Galloway - (Applicant 4) S Kavanagh - Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/16857; 2008/15722; 2008/16322; 2008/17822
LOWER COURT JUDICIAL OFFICER:	Cogswell SC DCJ
LOWER COURT DATE OF DECISION:	24 November 2009

2008/16857
2008/15722
2008/16322
2008/17822

LATHAM J
ROTHMAN J
PRICE J

15 DECEMBER 2010

MOHAMAD HELLO v R

HUSSEIN EL-SKAF v R

BILAL BAKKOUR v R

NASIR HOSAINY (aka JAVELOSA) v R

Judgment

1 LATHAM J : The applicants each pleaded guilty to one count of knowingly facilitate car rebirthing activity on an organised basis, pursuant to s 154G(1) of the Crimes Act 1900. The offence carries a maximum penalty of 14 years imprisonment and a standard non parole period of 4 years imprisonment.

2 Bakkour and Hosainy were charged with committing the offence between 1 March and 19 July 2007. After taking into account the offences of conspiracy to obtain money by deception and goods in custody on a Form 1, Cogswell SC DCJ (the Judge) sentenced Bakkour to a non parole period of two years and six months, with a balance of term of two years. Hosainy was sentenced by the Judge to a non parole period of three years, with a balance of term of two years and six months imprisonment. Both of these applicants were sentenced on 20 November 2009 ; R v Bilal Bakkour ; R v Nasis Javelosa [2009] NSWDC 405.

3 Hello was charged with committing the offence between 19 March and 27 July 2007. He was sentenced by the Judge to a non parole period of two years six months imprisonment, with a balance of term of two years imprisonment. An offence of knowingly make a false or misleading statement was taken into account on a Form 1. El Skaf was charged with committing the offence between 9 May and 17 July 2007. He was sentenced by the Judge to a non parole period of two years and six months, with a balance of term of two years and six months imprisonment. Both of these applicants were sentenced on 24 November 2009 ; R v Hussein El Skaf ; R v Mohamad Hello [2009] NSWDC 406.

4 They each seek leave to appeal against the asserted severity of sentence, although the grounds filed on behalf of each applicant vary. The applicants Hosainy and Hello complain that the sentence imposed by the Judge is manifestly excessive and that there is a disparity in their sentences, compared with other co-offenders. All of the applicants, but for El Skaf, took issue with the Judge’s assessment of the objective gravity of the offence in their respective cases.

The Offence

5 Between 20 March and 14 June 2007 a mobile phone used by the applicant Bakkour was lawfully intercepted pursuant to a warrant. The mobile phone of the applicant Hosainy was also intercepted at different times during the investigation, which was undertaken by a team of police officers focusing upon the organised theft and rebirthing of motor vehicles.

6 In summary, the evidence disclosed the organised and systematic theft by Bakkour and Hosainy of vehicles from the eastern and inner western suburbs of Sydney, together with the purchase of damaged vehicles by Bakkour and Hosainy from auctions throughout Australia, corresponding to the make and model of the stolen vehicles. Following the repair of the damaged vehicles using parts from the stolen vehicles, they were registered and sold through outlets such as the Trading Post.

7 In addition, Bakkour and Hosainy were regularly contacted by other persons who placed orders for specific makes and models of vehicles in order to facilitate the rebirthing of damaged vehicles by those other persons. The applicants Bakkour and Hosainy charged fees for the theft of these vehicles, depending on the level of difficulty. The applicant Bakkour was involved in the rebirthing of 20 vehicles, whilst Hosainy was involved in the rebirthing of 18 of those 20 vehicles. Both of the applicants were also found in possession of car stealing implements.

8 The applicant Hello placed an order with Bakkour for two of the stolen vehicles. In one instance, Hello purchased an unregistered and damaged vehicle corresponding to the make and model of the stolen vehicle, and subsequently sold the vehicle, which had been repaired using parts from the stolen vehicle. On the other occasion, Hello bought two damaged and unregistered vehicles at auction, repairing each of them using parts from the stolen vehicle. One was retained by Hello’s wife, while the other was sold, although it was later returned to the applicant.

9 The applicant El Skaf provided storage for 7 vehicles stolen by Bakkour, in the knowledge that the vehicles were to be used for rebirthing by others. Three of the vehicles were later found stripped of parts in the streets near El Skaf’s home. The remainder were not recovered.

The Assessment of the Objective Gravity of the Offence

10 The Judge's approach to the assessment of the objective gravity of the offence lies at the heart of each of the applications. In order to appreciate the nature of the argument on the hearing of the appeal, it is necessary to refer to the remarks on sentence.

11 In the course of his remarks on 20 November 2009, the Judge referred to the introduction of the offence in 2006 and to the second reading speech delivered in the Legislative Council on that occasion. The Judge also noted at the outset that the offence of steal motor vehicle pursuant to the now repealed s 154AA Crimes Act 1900 carried a maximum penalty of 10 years imprisonment, as does the present equivalent offence pursuant to s 154F, whilst the penalty for receiving a stolen vehicle carries a maximum penalty of 12 years imprisonment (s188 Crimes Act). Neither of these offences carries a standard non parole period.

12 These observations are of particular relevance to the applications of Bakkour and Hosainy. Given that Bakkour was potentially liable for the theft of 20 motor vehicles, and Hosainy was potentially liable for the theft of 18 motor vehicles, a plea of guilty to one count carrying a maximum penalty of 14 years imprisonment in lieu of prosecution for multiple offences under s 154F, each carrying a maximum penalty of 10 years imprisonment, represented a considerable advantage to each of the applicants.

13 It is noteworthy that the offence under s 154G is drafted in very wide terms, and deliberately so. It is intended to strike at every stage of the car rebirthing process, including taking any step in that process, and does not require proof of an established hierarchy of offenders. The relevant part provides :-

(2) For the purposes of this section, a “ car or boat rebirthing activity ” is an activity involving one or more of the following:
(a) the stealing of a motor vehicle or vessel or the receiving of a stolen motor vehicle or stolen vessel,
(b) the interference with a motor vehicle or vessel, or a part of a motor vehicle or vessel, or a unique identifier, for the purpose of concealing the fact that a motor vehicle or vessel, or any part of a motor vehicle or vessel, is stolen,
(c) the affixing of stolen parts to a motor vehicle or vessel,
(d) the interference with a unique identifier, being a unique identifier that wholly or partly identifies a motor vehicle or vessel for registration under a law of any jurisdiction, for the purpose of disguising or misrepresenting the identity of a motor vehicle or vessel,
(e) the registration, in this or any other jurisdiction, of a stolen motor vehicle or stolen vessel, or of a motor vehicle or vessel that has had stolen parts affixed to it,
(f) the supply of, or offering to supply, a stolen motor vehicle or stolen vessel.
(3) A person “ facilitates ” a car or boat rebirthing activity if the person:
(a) takes, or participates in, any step, or causes any step to be taken, that is part of the activity, or
(b) provides or arranges finance for any step that is part of the activity, or
(c) provides the premises in which any step that is part of the activity is taken, or allows any step that is part of the activity to be taken in premises of which the person is the owner, lessee or occupier or of which the person has the care, control or management.
(4) A car or boat rebirthing activity is carried out on an “ organised basis ” if:
(a) it is planned, organised, structured or otherwise carried out in such a manner as to indicate that the activity is carried out on more than one occasion and involves more than one participant, and
(b) it is carried out for profit or gain.
(5) In proceedings for an offence against this section, for the purpose of proving that an activity was carried out on an organised basis, or that the accused knew it was carried out on an organised basis, it is not necessary to prove:
(a) that the accused knew any of the participants in the activity or that any of the participants knew each other, or
(b) that the activity was planned, organised, structured or otherwise carried out under the direction of any particular person or persons or in any hierarchical manner, or
(c) that the same participants were involved on each occasion on which the activity was carried out.

14 Thus, the objective gravity of the offence will obviously differ markedly between an offender who, on one occasion, attaches a metal plate over a vehicle’s VIN (vehicle identification number) in order to assign another VIN ((2)(d)), on the one hand, and an offender who participates on numerous occasions in the theft of motor vehicles that are to be “cannibalised” for parts ((2)(a)), on the other hand. As the Court remarked in R v Hamieh [2010] NSWCCA 189 :-

50 As already indicated, the seriousness with which the legislature views this offence cannot be gainsaid. However, the section encompasses a wide range of criminal activity and a person guilty of an offence under s 154G is to be punished for the actual offending conduct in which that person engaged: see Ibbs v R [1987] HCA 46; (1987) 163 CLR 447 at [4] 452, where the High Court stated:
"When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case ... As Dwyer CJ said in Reynolds v Wilkinson (1948) 51 WALR 17, at p 18:
'Crimes bearing the same general description have not equally evil content or characteristics, and offenders also differ in themselves.'"

15 Returning to the Judge’s assessment of objective gravity in the circumstances of the applicants Bakkour and Hosainy, the Judge said :-

in Mr Bakkour’s case he was involved in stealing up to 20 cars. Mr Javelosa [Hosainy] was involved in stealing 18 cars. The people who were injured by that sort of behaviour include of course the car owners who lost their car and whatever was contained in it, usually for good because it was destroyed in their activity. Insurers had to pay out. The public indirectly suffer because of activity such as this by the increase in premiums, although that cannot be demonstrated as a particular feature of these cases. And of course by the amateur reassembling of cars there must be an element of risk to the public. ………………………………
Both men participated in this activity with perseverance and regularity over a period of some four months. …………………….
The behaviour was, as I have already said, in my opinion predatory. These men preyed on innocent members of the community who left their cars at places which they thought were safe only to find them removed the following day and either never found or found completely destroyed. These men undertook this activity as a routine business whereby they generated income for their own personal needs, be it either to provide for their family or to provide for their drug habit. …………………………….

16 After noting a submission from the Crown representative that the offences each fell at least within the mid range of objective gravity, and the concession from the applicants’ counsel that such an assessment was appropriate, but that the objective gravity did not exceed the mid range, the Judge went on :-

In my opinion because of the number of cars involved and because of the persistent, regular criminal activity of these men over such a long period of time, both crimes fall above the mid-range of objective seriousness.

17 His Honour did not further identify the degree to which the offences exceeded the mid range. However, a starting point of 8 years imprisonment (taking into account the offences on the Form 1) for the applicant Bakkour indicates that the Judge considered that the offence barely exceeded the mid range of objective gravity. Similarly, in the case of the applicant Hosainy, a starting point of 7 and a half years, after taking into account the fact that he committed the offence while serving a community service order and while on bail, indicates very little by way of departure from the mid range. Neither of the applicants advanced a subjective case that warranted any significant mitigation of the penalty that would otherwise meet the objective circumstances of the offence.

18 In my opinion, this was a very generous finding by the Judge. The scale and course of offending justified, in my view, positioning the offence in each case substantially above the mid range of objective gravity. The Crown submission in this respect was not particularly helpful and suffered from a degree of imprecision. Be that as it may, the applicants Bakkour and Hosainy cannot realistically maintain that the Judge’s assessment was unreasonable or unjust, particularly in the face of the submissions made by their counsel at sentence.

19 With respect to the applicants Hello and El Skaf, the Judge referred to the fact that the applicant Hello ordered two specific cars from the applicant Bakkour, and that he carried out some repairs and arranged for them to be registered and sold. The Judge went on to say that this involvement in the offence was "therefore quite significant." The Judge further noted that the applicant El Skaf’s house was used to hide a number of cars which had been stolen so that they could be stripped and the parts placed onto other cars.

20 The Judge then determined that :-

the crime committed by Mr Hello was in the middle of the range of objective seriousness. It was not as serious a crime as that committed by his co-offenders Mr Bakkour and Mr Javelosa [Hosainy]. Mr El Skaf’s involvement in the crime also indicates that his offence was in the middle of the range of objective seriousness in my opinion. In both cases because of the limited number of cars they were involved in, the offences were towards the lower end of the middle range.

21 With respect to the Judge, it is difficult to appreciate how the offences committed by each of the applicants Hello and El Skaf could be assessed in identical terms (towards the lower end of the mid range), when the applicant Hello procured two stolen vehicles from Bakkour, yet the applicant El Skaf received stolen vehicles on at least 7 occasions. It is true to say that El Skaf’s offence may be described as providing a “safe house” for the stolen vehicles, including on some occasions, stripping them of parts, whereas Hello received the stolen vehicles for the purpose of engaging in the rebirthing of three vehicles. However, a sensible reading of the agreed facts in each case strongly suggests that El Skaf was a more regular participant in Bakkour and Hosainy’s activities than was Hello.

22 Some guidance may be obtained from the circumstances of R v Hamieh, where the Court found that an equivalent offence constituted by the rebirthing of two cars from the parts of three stolen vehicles warranted a finding of objective seriousness “about halfway between the lowest end and the mid range”. This would appear to be an appropriate assessment in the case of the applicant Hello. Clearly, the objective gravity of the offence committed by El Skaf lies above that assessment.

23 One further observation ought to be made. Sentencing for this offence, where the offender’s conduct falls within the mid range of objective gravity, is complicated by a standard non parole period that falls well short of half the maximum penalty. Another offence demonstrating this feature is possession of a pistol under the Firearms Act 1996. In the case of the latter offence, R S Hulme J said in R v Najem [2008] NSWCCA 32, at [38]-[39] :-

[38] Any judgment as to the appropriate penalty to be imposed in respect of the offence the subject of the second count has also to cope with the fact that there are, at least on first impression, two irreconcilable standards against which that offending has to be measured. As has been said, the maximum penalty for the offence is 14 years, yet the standard non-parole period is 3 years. The effect of ss 54A and 54B of the Crimes (Sentencing Procedure) Act is that, for an offence in the middle range of objective seriousness, a court is required to impose the standard non-parole period unless there are reasons for not doing so.

[39] One would fairly have expected that the standard non-parole period for an offence in such mid-range to be of the order of half of the maximum.

See also Thalari v R [2009] NSWCCA 170 at [84] – [85].

24 Whilst Hulme J referred to “two irreconcilable standards against which that offending has to be measured”, I do not understand his Honour to be saying anything contrary to R v Way [2004] NSWCCA 131. When considering what is constituted by an offence in the middle of the range of objective seriousness, the Court in Way said :-

77 We do not however consider that the exercise which is required will differ, to any material extent, from that which has always been necessary in evaluating the objective seriousness of a subject offence. Judges are well accustomed to considering and stating that a particular case falls into the worst category, or into the category of offences at a lower level of objective seriousness: see Ibbs v The Queen; Baumer v The Queen (1988) 166 CLR 51 at 57, and R v Moon (2000) 117 A Crim R 497 at 510.

25 The reference to Moon is important. There, Howie J said :-

……………………………………………………………………
67 Firstly, the court must have regard to the maximum penalty for the offence at the time when the crime was committed. This will indicate the policy of the legislature at the time the offence was committed: Oliver (1980) 7 A Crim R 174. It will prescribe the limit of the court’s discretion, as the maximum penalty is intended for cases falling within the worst category of cases for which the penalty is prescribed: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; Ibbs v The Queen (1987) 163 CLR 447 at 451. Prima facie the maximum penalty indicates the seriousness of the offence: Gilson v The Queen (1991) 172 CLR 353 at 364.
68 Secondly, the court must consider where in the range of the conduct covered by the statutory offence, the particular criminal conduct committed by the offender falls: Baumer v The Queen (1988) 166 CLR 51 at 57; Ibbs , above, at 452. This will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie.

26 Thus, a finding that an offence under s 154G(1) falls within the mid range of objective gravity may well result in a nominal sentence of 8 years imprisonment, which, after factoring in an early plea of guilty and absent a finding of special circumstances, results in a non parole period of 4 years and 6 months, with a balance of term of one year and 6 months. Given that the standard non parole period remains as a benchmark or guidepost, it seems anomalous that the offender should receive more than the standard non parole period of 4 years. How this tension is resolved falls to be determined in the circumstances of each case.

The Applicant Bakkour : Error in Failing to Have Proper Regard to the Applicant’s Role in the Offence and Failure to Consider Where the Offence Fell in Objective Gravity.

27 The applicant asserts that the Judge erred by assessing the objective gravity of the offence by reference only to the number of vehicles and the duration of the offending. It was submitted that the applicant's role was primarily to steal cars at the behest of others, for which he was usually paid a fee. It was further submitted that the applicant could not therefore be said to be an organiser or even high up in the criminal enterprise.

28 In support of this submission, the applicant's counsel contended that the error is akin to a primary focus on the quantity of the drug in sentencing for a drug supply or importation offence, rather than focussing on the offender's role in the enterprise. This submission, based on what the High Court said in Wong v The Queen (2001) 207 CLR 584 and Markarian v The Queen (2005) 228 CLR 357, overlooks the circumstances of this offence and the specific terms of the provision establishing the offence, that is, s 154G(4) and (5).

29 The legislature has provided that questions of hierarchical structure are irrelevant to proof of the organised nature of the activity. This aspect of the provision recognises that this offence is usually committed by a loosely associated web of offenders, rather than within the type of hierarchy commonly associated with drug offences. The requirement that the activity be carried out on an “organised basis” does not assume the existence of a hierarchical organisation. Provided that the activity is planned, or organised, or structured, or it is carried out more than once and involves more than one offender, and it is carried out for profit or gain, the offence is made out.

30 The sentencing exercise in this case proceeded upon the basis of the statement of agreed facts. Those facts referred to “Bakkour and Hosainy’s involvement in the organised and systematic theft of vehicles” and in “the facilitation of organised car rebirthing”. There was no allegation that these two applicants occupied any particular position in any organisation which also comprehended the applicants Hello, El Skaf and others. The Crown made no such submission and nothing was said in evidence or by the applicants’ counsel on the subject of “roles”.

31 Plainly, the facts established that Bakkour and Hosainy jointly stole a number of vehicles, some of them to order, in the knowledge that others would use the parts to rebirth vehicles. They each received money for the theft of the cars from those who had “ordered” them, and they each profited from the sale of cars that they themselves “rebirthed”. On the evidence, they were not subject to direction from any other person. They simply agreed to steal vehicles on behalf of others.

32 In circumstances where the offence under s154G is committed by a number of offenders who are directed and controlled in their activities by a dominant offender exercising authority over them, questions of role and position in the hierarchy may become relevant for the purpose of sentence, but that is not this case.

33 In this case, the most relevant considerations are those referred to in R v Hamieh at [50], that is, what the offender actually did, not whether the offender was a so-called principal or a minion.

34 I am not persuaded that the Judge erred in the approach that his Honour took. I do not accept that the Judge “overstated” the applicant’s level of involvement in the offence. In any event, I have already concluded that the Judge’s assessment of the objective gravity of the offence committed by this applicant was an extremely generous one. The applicant’s counsel expressly disavowed any suggestion that the Judge’s starting point was excessive, but nevertheless maintained that the starting point was “high”.

35 The Judge’s error in failing to determine with sufficient clarity where the offence fell within the range of objective gravity was effectively conceded by the Crown. However, this is not an error that would lead me to the conclusion, in the circumstances of this case, that a lesser sentence is warranted in law. As I have already noted at [17] and [18], the Judge’s starting point was arguably consistent with the concession made below (and in this Court) that the offence was at least mid range.

36 There was nothing remarkable about the applicant’s subjective circumstances. At the age of 29, he had previous convictions between 2000 and 2003 for goods in custody and two offences relating to car theft. His wife was suffering from depression, in large part brought about by his arrest for this offence. Any hardship occasioned to the applicant’s family cannot be allowed to overshadow the objective circumstances of the offence. The lapse of time between his arrest on 19 July 2007 and sentence on 20 November 2009 was occasioned in large part by the need to translate numerous telephone intercepts from Arabic to English. The applicant’s bail conditions were not so onerous that they could legitimately be described as “quasi custodial”.

37 It should be noted that the Judge’s starting point of 8 years was discounted by 45% to reflect both the applicant’s assistance and his plea of guilty. No complaint was made in this regard. In my view, the non parole period ultimately imposed could be characterised as almost unreasonably disproportionate to the objective gravity of the offence : s 23(3) Crimes (Sentencing Procedure) Act 1999.

38 I would grant leave to appeal but dismiss the appeal.

The Applicant Hosainy : Disparity, Error in Finding the Offence Fell Above the Mid Range of Objective Gravity and Manifest Excess.

39 The first ground of the appeal asserts a legitimate sense of grievance in the applicant, having regard to the sentence imposed upon the applicant Bakkour. It is submitted that “the applicant played a significantly lesser role in the organisation” than Bakkour, in that the applicant was not directly involved with the person “ordering” the stolen vehicles, except for two instances.

40 There are a number of flaws in the submissions advanced in support of this ground. The Judge was not required to sentence according to the role of any of the applicants in the alleged organisation. There is no need to repeat what is set out at [14] and [30] – [34], but those observations apply here with equal force. No submission to the effect now advanced was advanced below, and despite the fact that the applicant gave evidence on sentence, he said nothing on the subject. I have difficulty understanding how the Judge could be said to have fallen into error in the exercise of his sentencing discretion when there was no evidence advanced, nor any submission made, with respect to the existence of an organisation with a structure and a hierarchy.

41 Secondly, the discrepancy giving rise to the applicant’s sense of grievance is the difference between the starting point in the imposition of the sentence on Bakkour and that applied to this applicant, namely 6 months. The applicant’s contention is that the difference should have been greater in order to reflect the applicant’s “markedly lesser role.” Given the basis of the Judge’s correct approach to sentence, namely, the number of vehicles stolen, I would not describe the applicant’s activities as “markedly” different from Bakkour.

42 I am not persuaded that there is any disparity. In addition, for the reasons I have set out above at [17] and [18], I would regard any lesser sentence incapable of adequately reflecting the objective gravity of the offence.

43 The remaining grounds also lack merit for substantially the same reasons. There was no error in finding where the offence fell on the range of objective gravity. The Judge’s finding that the offence fell above the mid range of objective gravity was arguably not reflected in the starting point. I appreciate that subjective factors played a part in determining that starting point, but the applicant’s subjective case was not particularly favourable. He is 29 years of age with a history of cocaine abuse and an addiction to gambling. His criminal history was much more extensive than the applicant Bakkour and included two previous convictions for motor vehicle theft. I have already noted that the offence was committed while on bail and while serving a community service order.

44 I would grant leave to appeal but dismiss the appeal.

The Applicant El Skaf : Failure to Take into Account the Applicant’s Onerous Bail Conditions, Error in Assessing the Starting Point for Sentence at Six Years Having Regard to the Applicant’s Criminality and Mitigating Factors, Error in Application of Discount for the Plea of Guilty.

45 For a period of 2 years and 4 months, the applicant reported to police four days each week and remained at home between 9pm and 7am. Whilst these conditions were included when the applicant was granted bail on 20 July 2007, there was some doubt on the Crown’s part that the conditions remained in that form throughout the proceedings. According to the Crown on sentence, the conditions were varied at some stage so that the applicant was only required to report one day per week and the curfew was also reduced. However, the applicant continued to abide by the original conditions.

46 The applicant submits that the passing reference made by the Judge to the bail conditions when sentencing him demonstrates either no, or inadequate, consideration of the extent to which his compliance with such bail conditions ought to have mitigated the penalty. This submission assumes that the bail conditions imposed upon the applicant may properly be described as “onerous” and that a sentencing judge is obliged to take such matters into account.

47 In R v Webb [2004] NSWCCA 330, Grove J said :-

It is undoubtedly open to a sentencing judge to take into account onerous conditions of bail in assessing sentence but he is not obliged so to do.

48 To the extent that the Crown representative on sentence conceded that “minimal” allowance might be made for the length of time on bail, the Judge was not bound by that concession.

49 It is not apparent that the reporting and curfew conditions interfered with the applicant’s responsibilities, such as they were, to any significant extent. The applicant’s children suffer from an extreme form of hyperactivity and a behaviour disorder that places considerable burdens upon the applicant’s wife. This aspect of the applicant’s subjective case was relied upon by counsel in submitting that a penalty falling short of full time custody was appropriate. In those circumstances, the obligation upon the applicant to be at home in the late evening and throughout the night would seem to be consistent with, and necessary for, the performance of his duties to his family. Similarly, reporting to a local police station for 4 out of the 7 days of the week would not unduly restrict the applicant’s movements, given that he was not employed.

50 No evidence was placed before the Judge in order to establish what hardship the applicant experienced as a result of his bail conditions. I am not persuaded that the conditions were relevantly onerous. In any event, the Judge did refer to the applicant’s bail conditions in terms that suggest his Honour had regard to that feature of the applicant’s case.

51 Having assessed the objective gravity of this applicant’s offence towards the lower end of the mid range, and having regard to the applicant’s subjective case, the Judge determined a starting point of 6 years imprisonment before applying a discount of 15% for the plea of guilty. The applicant’s argument on this ground is that such a starting point is excessive, although the applicant did not submit that the characterisation of the applicant’s criminality was not open to the Judge. Essentially, the submission is that the mid range for an offence carrying a maximum penalty of 14 years imprisonment is between 5 and 9 years, and that the Judge adopted an unduly narrow range.

52 I would not be prepared to find error on this basis. Six years is entirely consistent with the Judge’s assessment, namely, towards the lower end of the mid range. However, it is further submitted that such a starting point suggests that the Judge gave little or no consideration to the mitigating features before adopting that starting point. The applicant (then aged 23) had no prior convictions, was found to be remorseful and with good prospects of rehabilitation. These features were noted by the Judge. There is no reason to think that his Honour did not give them the weight they deserved, whilst being mindful of the need to adequately reflect the objective gravity of the offence.

53 A starting point of only 18 months less than that applied to Hosainy and 2 years less than that applied to Bakkour arguably fails to recognise the difference in their respective criminality and the applicant’s more favourable subjective circumstances. However, I regard that outcome as the product of a less than adequate assessment of the criminality of Bakkour and Hosainy.

54 It should also be noted that the applicant received the benefit of a finding of special circumstances, in part based upon his family circumstances which had already been taken into account when determining the penalty. A non parole period of 2 and a half years, in my view, is the very least custodial term that could be imposed in order to adequately respond to the objective gravity of the offence.

55 There is an anomaly arising out of the 15% discount applied to the applicant’s sentence and the 25% discount applied to Hello’s sentence. Both this applicant and the applicant Hello pleaded guilty on the day fixed for trial. This applicant’s counsel submitted to the Judge that a discount of 15% was appropriate. It is not clear why the applicant Hello received a discount of 25% when there was nothing relevantly to distinguish between them. In my opinion, the Judge fell into error in the application of the full discount to the applicant Hello’s sentence. I would not be prepared to compound that error by setting aside a perfectly appropriate discount in the case of this applicant.

56 I would grant leave to appeal but dismiss the appeal.

The Applicant Hello : Disparity and Manifest Excess.

57 I have already indicated that the Judge’s assessment of the objective gravity of this applicant’s offence cannot be reconciled with the applicant’s conduct and with the finding by this Court in Hamieh, concerning relevantly similar conduct, of a level of objective gravity between the low end and the mid range. The applicant’s complaint that there is a disparity between the Judge’s assessment of the objective gravity of his offence and the assessment made in respect of the applicants Bakkour and Hosainy is well founded.

58 It is not therefore necessary to deal with the ground of manifest excess.

59 This applicant was 27 years of age at the time of sentence. He is married with a young child and was employed full-time as a tiler over the course of the offence. The applicant has one prior conviction for a common assault in 2002 for which he received a bond. There was limited evidence of remorse but there would appear to be reasonable prospects of rehabilitation. The Judge made a finding of special circumstances which ought not be disturbed.

60 Taking these matters into account, and the offence on the Form 1, I regard a sentence of 4 years as an appropriate penalty. I see no warrant for applying a discount greater than 15% for the plea of guilty. Indeed, such a discount reinstates the application of equal justice to this applicant and the applicant El Skaf.

61 Accordingly, I propose the following orders in the application by Hello :-

1. Leave to appeal granted.

2. Appeal allowed

3. Quash the sentence imposed on 24 November 2009 and in lieu, a non parole period of 2 years is imposed, to date from 17 November 2009, expiring 16 November 2011, with a balance of term of 17 months, expiring 16 April 2013. The applicant is eligible for release on 17 November 2011.

62 ROTHMAN J : I have had the advantage of reading in draft the reasons for judgment of Latham J. I agree with the orders proposed by her Honour and generally with her Honour’s reasons.

63 Manifest excess is a particular type, together with manifest inadequacy, of manifest error. It arises when an appeal court cannot identify error, but the outcome evidences an error in the understanding or application of principle: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Hili v The Queen; Jones v The Queen [2010] HCA 45 at [58]-[60].

64 All sentencing is intuitive: Markarianv The Queen [2005] HCA 25; (2005) 228 CLR 357 at 374-375, 386. It is an exercise of discretion, which seeks to synthesise, intuitively, all of the relevant criteria arising from the objects of sentencing under both the common law and any applicable statutory regime and any other relevant matter. So much is trite.

65 But in determining manifest error, an appeal court must not only have regard to the foregoing, but also to the outcome of the sentence imposed below, and whether such an outcome is, on the basis of the proper application of those criteria, manifestly not an appropriate sentence in all of the circumstances, i.e. not within the available range for the offence committed by this offender. The sentences imposed by his Honour disclose no manifest error. The sentence which her Honour amends discloses an identifiable error in the assessment of objective gravity and parity.

66 Further, in determining an appropriate sentence, the maximum penalty is a relevant guidepost to which a sentencing judge has regard. But the maximum sentence is for the worst class of offence. An offence that is “mid-range” does not necessarily carry with it the proposition that it should commence at, or approximate, half the maximum penalty. There is no arithmetic relationship between mid-range and maximum.

67 I do not understand any part of her Honour’s reasons to be inconsistent with any of the foregoing, and I reiterate my agreement with the orders proposed.

I agree with Latham J.

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