Khaled BAJOURI v The Queen

[2009] NSWCCA 125

New South Wales
Court of Criminal Appeal

CITATION:	Khaled BAJOURI v R [2009] NSWCCA 125 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	17 March 2009
JUDGMENT DATE:	27 April 2009
JUDGMENT OF:	McClellan CJatCL at 1; Simpson J at 2; Howie J at 54
DECISION:	Leave to appeal granted. Sentence imposed in the District Court quashed; In lieu thereof, imprisonment with a non-parole period of 2 years and 6 months, to commence on 23 June 2006 and expire on 22 December 2008, and a balance of term of 3 years, expiring on 22 December 2011. The applicant is entitled to immediate consideration for release on parole.
CATCHWORDS:	CRIMINAL LAW - offences against the person - aggravated detention of a person with intent to hold for ransom - appeal against sentence - whether sentence manifestly excessive - parity, whether justifiable sense of grievance when sentence considered in relation to co-offenders' sentences
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	R v Collett & Robson (NSWCCA, unreported, 7 June 1979, per Roden J)
PARTIES:	Khaled BAJOURI (Applicant) REGINA (Crown)
FILE NUMBER(S):	CCA 2007/13755
COUNSEL:	R Burgess (Applicant) M Grogan (Crown)
SOLICITORS:	S O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0507
LOWER COURT JUDICIAL OFFICER:	Puckeridge DCJ
LOWER COURT DATE OF DECISION:	11 July 2008

2007/13755

McCLELLAN CJ at CL
SIMPSON J
HOWIE J

Monday 27 April 2009

Khaled BAJOURI v R

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 11 July 2008, following his plea of guilty to a single count on an indictment, of aggravated detention of a person with intent to hold for ransom. S 86(2)(a) of the Crimes Act 1900 prescribes a maximum penalty of imprisonment for 20 years for such an offence.

3 Puckeridge DCJ sentenced the applicant to imprisonment for 6 years, made up of a non-parole period of 3 years and a balance of term of 3 years. He (by implication) found that special circumstances, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), existed, justifying departure from the proportion between the head sentence and the non-parole period there specified. In sentencing the applicant, his Honour took into account, pursuant to Pt 3 Div 3 of the Sentencing Procedure Act, two further offences identified on the Form 1, committed at the same time and as part of the same criminal enterprise as the offence on the indictment. These were an offence of demanding money with menaces, and another of administering a stupefying drug.

The facts

4 The indictment alleged that the offence of detention was committed between 21 and 24 June 2006. In fact, as his Honour found, and as the Form 1 recorded, all offences were committed over a period of somewhat less than the indictment would suggest, of approximately twenty-four hours, beginning on the evening of 22 June 2006.

5 The circumstance of aggravation was that the offence of detention was committed in company (in fact, in the company of three others).

6 At about 9.30 on the evening of 22 June, the applicant and one of the co-offenders, Gokhan Oluklu, drove to the home of the victim, Emilio Commisso (then aged 19 years). It was their stated intention to travel to the city to attend a strip club. Commisso and his father were known to all offenders. They had been suppliers of cocaine to all offenders.

7 The applicant and Oluklu drove Commisso to a home unit in Rockdale occupied by another co-offender, Walid Ghareeb. The applicant, Oluklu and Commisso entered the unit. Ghareeb was present, with the fourth offender, Ali Maksoud. Commisso supplied all offenders with cocaine, which they used together.

8 Commisso was then attacked, initially by being slapped across the face (by Maksoud) and threatened. Ghareeb and Maksoud ordered him to make a telephone call to obtain $100,000. They told him that if he did not do so (by obtaining it from his father or brothers) they would kill him. They dictated to him a form of words to be used, which included a direction not to report the matter to police. They then told Commisso that he could make the telephone call the next morning, but that he would have to remain in the unit until then.

9 Until their arrival at the home unit, the applicant was unaware of any intention to demand money from Commisso. However, he actively participated in what then ensued. Ghareeb and Maksoud had earlier discussed demanding money from Commisso.

10 At some stage Commisso noticed a semi-automatic pistol on a coffee table. He did not see which of the offenders placed it there.

11 At Maksoud’s direction, Oluklu barricaded the front door. Some of the men began playing with the gun. They issued Commisso with more threats (of torture, and of having his fingers cut off) if the money were not forthcoming.

12 Oluklu and Maksoud left the unit for a time, leaving the applicant and Ghareeb in charge. Ghareeb made more threats. Oluklu and Maksoud returned to the unit. They forced Commisso to take two tablets, which later proved to be of a variety of anti psychotic drugs that had been prescribed for Ghareeb. This constituted the second offence on the Form 1, of administering a stupefying drug. The applicant actively participated in this, by giving Commisso water with which to take the tablets.

13 Commisso lost consciousness, and remained unconscious until 8.45 the following morning, when he was woken by Maksoud. At Maksoud’s direction Commisso telephoned his father. Oluklu gave him, in writing, instructions as to what he was to say. Commisso complied. He spoke to his father, who contacted police. At about 11.05, the money not having arrived, Commisso again telephoned his father to inquire of progress. Police arrived at the unit and arrested the applicant and Oluklu. Ghareeb and Maksoud had by then left the unit. They were arrested later.

14 The applicant has remained in custody since that date.

The proceedings on sentence

15 The proceedings against all four offenders were heard together. Each entered a plea of guilty to the same charge, of aggravated detention with intent to hold for ransom, and asked that the same two offences be taken into account. All except Oluklu gave evidence. Some called family members to give evidence. Each of the offenders who gave evidence was asked about the events of 22 June, and the circumstances of the offences.

16 In respect of each of Ghareeb, Maksoud and the applicant, the judge had the benefit of a comprehensive psychological report. He was therefore in possession of detailed material concerning both the objective circumstances of the offences, the role played by each of the participants (with the possible exception of Oluklu) and the subjective circumstances of each of the participants (again with the possible exception of Oluklu).

17 In his evidence, the applicant said that, not only did he use cocaine with Commisso and his three co-offenders on the evening of the offence, but that he also used amphetamines. He said that, prior to the demands being made of Commisso by Ghareeb and Maksoud, he had been unaware of any plan to make such demands, and had initially thought that what was happening was a joke. He went along with it because he anticipated receiving a share of the proceeds, although he did not know how much that would be. The applicant said in evidence that, when he travelled with Ghareeb and Commisso to the home unit, he believed that they were going to a strip club. His Honour appears to have accepted the applicant’s evidence.

Subjective circumstances

18 Evidence of the applicant’s subjective circumstances was put before Puckeridge DCJ by way of a pre-sentence report from the Probation and Parole Service (written by Mr Michael Single, and dated 1 November 2007), a report of Mr Watson-Munro, a consultant forensic psychologist, the evidence of the applicant and that of his brother. From that material the following emerges.

19 The applicant was born in November 1986. He was 19 years of age at the time of the offences. He had some, relatively insignificant, criminal history, consisting of three convictions for common assault, malicious damage to property, affray and fail to leave a registered club when requested by staff to do so. As these were all dealt with at the same time, in July 2005, I infer that they were part of a single episode. Despite the character of the offences, I say they appear to be relatively insignificant because the applicant was fined a total of $600, and placed on a good behaviour bond for 2 years. Later in 2005, he was convicted of failing or refusing to undergo a breath test and driving while suspended. Again, he was fined and subjected to a bond.

20 Mr Watson-Munro described the applicant as “co-operative though highly anxious …”.

21 The applicant was born in Australia, of Lebanese parents, the eighth of eleven children. At a very early age he was diagnosed with diabetes, for which he is insulin dependent. According to Mr Watson-Munro, he had been a professional footballer for a time, but his diabetic condition prevented him from continuing with that career. (It may be of some significance that this is not mentioned in the employment history recounted in the pre-sentence report.) He became depressed and began using cocaine. He does not appear to have worked since then. The two reports also give different accounts of his employment history: according to Mr Single he had acquired the necessary qualifications to work on construction sites, but had had minimal employment, a full time position for eight months and casual employment for six months. According to Mr Watson-Munro’s history, he had had a job with one of his brothers for about twelve months constructing spa pools.

22 The applicant made one attempt to overcome his drug addiction, by travelling to Lebanon, but this resulted in the transfer of addiction to cocaine to addiction to steroids. On his return to Australia he was met by Commisso, who supplied him with cocaine, which reactivated his addiction.

23 During his time in custody on remand, his father, also diabetic, died at the age of 50. The applicant was not permitted to leave the gaol to attend the funeral. He experiences significant feelings of guilt for the death.

24 Mr Watson-Munro reported (on 4 November 2007) that, since being in custody, he has detoxified and now has ambitions to re-enter the workforce. Mr Single reported that, since his incarceration, he had been charged with ten “institutional misconducts”, of which two were dismissed for lack of evidence. He said that the applicant had had contact with Psychology Services with respect to a “Behaviour Management Plan”, because of his conduct, but that his behaviour had improved sufficiently for him to be released from that Plan.

25 The applicant gave some evidence about the circumstances of his misbehaviour in prison, attributing it to his diabetes, and his emotional reaction to his father’s death.

26 Mr Watson-Munro considered that the applicant had symptoms of adjustment disorder. He is of limited intellectual capacity and Mr Watson-Munro considered him to be vulnerable to peer dynamics. Mr Watson-Munro thought that his expressions of regret over the offence were genuine.

27 The applicant’s brother gave evidence of a close family, supportive of the applicant, who were, until his arrest, unaware of his drug problem. (This last is a little difficult to reconcile with the applicant’s excursion to Lebanon in an attempt to escape drugs.)

28 The brother spoke of the difficulties experienced by the applicant with respect to his diabetes.

29 Also before the court was an affidavit of the applicant’s solicitor. He deposed that the applicant is spending his time in segregation, and is considered to be at great risk if returned to the general prison population.

The Remarks on Sentence

30 Puckeridge DCJ sentenced all four offenders on the same day. He carefully assessed the relative participation of each, and their subjective and objective circumstances. He sentenced Ghareeb, Maksoud, and Oluklu identically, each to imprisonment for 6 ½ years, made up of a non-parole period of 3 ½ years and a balance of term of 3 years. Each of their sentences was reduced by reason of the pleas of guilty, from the notional starting point of a total sentence of 8 years – a little under 20%. He imposed the lesser sentence mentioned above on the applicant, of imprisonment for 6 years, with a non-parole period of 3 years.

31 Two factors that gave rise to the discrepancy were, it appears:

· that the applicant was the youngest of the four offenders. (Both Ghareeb and Maksoud were 26 years of age at the time of the offence; Oluklu, at 20, was only 3 months older than the applicant.)

· that the applicant “was in a lesser position in the detention of” Commisso.

32 His Honour took the view that the applicant’s role was, on the agreed facts, significantly less than that of the co-offenders.

33 Also relevant were the circumstances related in Mr Watson-Munro’s psychological report, and the applicant’s medical condition. His Honour accepted that the applicant did not know of any plan to detain Commisso until he went to the home unit, but became involved as the events there unfolded.

34 His Honour declared that, absent the applicant’s plea of guilty, he would have imposed a total sentence of 7 ½ years. By reason of the plea of guilty, he reduced this by 20%.

The grounds of the application

35 Two grounds are pleaded. They are:

“1. The applicant has a justifiable sense of grievance in relation to the sentences imposed on his co-accused.
2. The sentence is manifestly excessive.”

Ground 2: Manifest excess?

36 It is convenient to deal with the second ground first.

37 In support of this ground, essentially two points were made. The first relied upon a 1979 decision of this Court, R v Collett & Robson (NSWCCA, unreported, 7 June 1979, per Roden J). In that case Roden J identified a number of circumstances relevant to the assessment of the objective gravity of a charge of detention. These were (I paraphrase):

· the duration of the detention;

· the extent of fear or terror occasioned, the manner of treatment and what is demanded of the victim by the captors;

· the purpose of the detention;

· the extent (if any) to which third parties were subjected to ordeal or anguish by reason of fear for the welfare of the victim.

38 I am unable to see that this list supports the ground argued on behalf of the applicant. In respect of each factor, the offence was one of considerable seriousness. The duration of the detention was twenty-four hours; Commisso was aware of the existence of a firearm (although his Honour was expressly unable to find that he was aware that it was, in fact loaded – that, to me, makes little difference. Commisso must have assumed that the pistol was loaded.)

39 The detention was for the purpose of securing to the offenders a large sum of money. Commisso’s father, at least, was aware of the detention and the threats that had been made. (In respect of this last matter, Puckeridge DCJ held, correctly, that the fact of Commisso senior’s drug dealing did not diminish the anguish.)

40 This Court was also referred to various findings of fact made by Puckeridge DCJ. These included:

· that Commisso went willingly to the premises;

· that Commisso provided cocaine to the offenders;

· that each of the offenders was heavily addicted to drugs;

· that the detention continued over twenty-four hours;

· that the pistol was loaded, but that there was insufficient evidence to infer that Commisso knew this. (I have already commented on this.)

41 This was, in my opinion, a serious offence with few, if any, redeeming features, or mitigating factors. Reference to the matters identified does not persuade me that the sentence imposed was in any way excessive.

42 The second matter raised on behalf of the applicant in support of this ground concerns sentencing statistics from the Judicial Commission of NSW. These showed that, of offences against s 86(2) committed in company, 82% of offenders were sentenced to full-time imprisonment. Of these, the sentences ranged from 18 months to 8 years. In only one case was 8 years imposed, the next highest being imprisonment for 6 years. That sentence was imposed in 28% of cases. The non-parole periods ranged from 12 months to 48 months. The statistics do not appear to relate to cases where pleas of guilty have been entered, and may well include convictions after trial – without any discount referable to a plea of guilty. A non-parole period of 3 years was in the top 24% of sentences.

43 These statistics would suggest that the sentence imposed upon the applicant was at the upper end of the range of sentences imposed in respect of offences against s 86(2) committed in company. But that, to my mind, is entirely fitting. The offence is also, with the features I have mentioned, at the upper end of offences of its kind. I am not persuaded that the sentence was manifestly excessive.

Ground 1: Parity

44 By the second ground it was suggested that the applicant has (and is entitled to have) a justifiable sense of grievance when his sentence is considered in relation to those imposed upon the co-offenders. The argument was that the divergence between his culpability and that of the co-offenders warranted a more significant divergence in sentence than was allowed.

45 Relevant findings of the sentencing judge were said to be:

· that the applicant was not aware of the intention to demand money from Commisso when he travelled in the car with him and Oluklu to the home unit;

· that once at the home unit he consumed cocaine;

· that he played a lesser role than the others in the detention;

· that the applicant was vulnerable to peer group pressure and this may have influenced him in his participation;

· that the applicant was heavily influenced by drug taking and had consumed amphetamines and cocaine at the time of the offence.

46 Reference was also made to the subjective circumstances advanced on behalf of the applicant.

47 I do not accept that the applicant’s use of cocaine or of amphetamines, in any way diminishes the seriousness of this offence; in any case, with respect to this parity argument, the use of cocaine applied to all offenders. It does not differentiate the applicant from the co-offenders. The different assessment of his participation is, however, in a different category; and does (and did) warrant a degree of amelioration of the sentence. So also did his age (in contrast with Ghareeb and Maksoud, at least), and his vulnerability.

48 Moreover, all co-offenders had more extensive criminal records than the applicant (although these are not recorded in any detail in the Remarks on Sentence) and both Maksoud and Oluklu were on parole at the time of the offences.

49 No mention was made by his Honour of the circumstances in which the applicant is serving his period of imprisonment (in segregation). Although it is not clear, there is no reason to conclude that any of the other co-offenders is similarly serving his term.

50 In all of the circumstances, I have come to the conclusion that the applicant ought to have been sentenced in a way that gave greater recognition to the important differences between his case and those of Maksoud and Oluklu. I refer in particular to the age difference (the applicant’s relative youth), to the fact that he was not involved until the last minute and had no part in the planning or preparation, and the very important circumstance that the offences of those two offenders were seriously aggravated by having been committed while they were on parole.

51 It is therefore necessary to re-sentence. Against that possibility, this Court received additional evidence, that, in effect, updated the applicant’s personal circumstances. That material really does no more than confirm that the subjective case is much as was put before the sentencing judge.

52 It is not necessary to interfere with the balance of term. I would reduce the non-parole period by 6 months.

53 The orders I propose are:

leave to appeal granted;

sentence imposed in the District Court quashed; in lieu thereof, the applicant be sentenced to imprisonment with a non-parole period of 2 years and 6 months, to commence on 23 June 2006 and expire on 22 December 2008, and a balance of term of 3 years, expiring on 22 December 2011.

The applicant is entitled to immediate consideration for release on parole. I note that, although the applicant was sentenced on 11 July 2008, the notice of application for leave to appeal is dated 31 October 2008, and was received in the Registry on 13 November 2008. The application was heard on 17 March 2009.

54 HOWIE J: I agree with Simpson J.

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30/04/2009 - Applicant sentenced on 11 July 2008. - Paragraph(s) 53