Martin Thomas CLARK; Charlie RAFFOUL; Wahib FAJLOUN

[2019] NSWDC 890

District Court

New South Wales

Medium Neutral Citation:	Martin Thomas CLARK; Charlie RAFFOUL; Wahib FAJLOUN [2019] NSWDC 890
Hearing dates:	22 November 2019
Date of orders:	22 November 2019
Decision date:	22 November 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	In each case the offender is convicted In each case make a finding of special circumstances Mr Clark is sentenced to an aggregate term of imprisonment consisting of a head sentence of 5 years with a non-parole period of 3 years and 6 months. Mr Raffoul is sentenced to an aggregate term of imprisonment consisting of a head sentence of 4 years and 6 months with a non-parole period of 3 years. Mr Fajloun is sentenced to an aggregate term of imprisonment consisting of a head sentence of 6 years and 3 months with a non-parole period of 4 years and 3 months,
Catchwords:	CRIMINAL – Sentence – Disputed facts hearing - Aggravated detention – Assault - Actual bodily harm – Robbery in company – Each offender on conditional liberty at time of offending – Gratuitous cruelty - Special circumstances
Legislation Cited:	Crimes Act, 1900
Cases Cited:	R v Callaghan [2006] NSWCCA 58 R v Henry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149 R v Speechley [2012] NSWCCA 130 Veen v R (No2) 1988 164 CLR 465
Category:	Sentence
Parties:	The Crown Martin Thomas Clark Charlie Raffoul Wahib Fajloun
Representation:	Mr R Stainer (sol) Crown Advocate Mr G Stanton (cl) for defendant Clark Mr P Allport (cl) for defendant Raffoul Ms M Swift (cl) for defendant Fajloun   Solicitors: Director of Public Prosecutions Clark - Monica McKenzie Solicitors Raffoul - CDM Lawyers Fajloun - Younes Espiner
File Number(s):	2018/101166 - 2018/104955 - 2019/104965

SENTENCE

1. HIS HONOUR: Martin Clark, Wahib Fajloun and Charlie Raffoul are each before the Court for sentence in relation to two identical offences. The procedural history of the matter is that each of the offenders pleaded guilty in the Local Court but there was a disputed facts hearing which I resolved on 13 September 2019.

2. These reasons for sentence should be read in conjunction with my ex tempore decision resolving the factual dispute. Although there was one aspect that was found contrary to Mr Fajloun’s position, in short almost all of the contentions maintained by the offenders were made out.

3. The two offences for which the offenders are before the Court for sentence are especially aggravated detention, being a detention where there was actual bodily harm occasioned to the victim and each of the offenders were in company, one with each other, in breach of s 86(3) of the Crimes Act. That matter provides for a maximum penalty of 25 years imprisonment and there is no standard non-parole period.

4. The other offence for sentence today is a robbery in company in breach of s 97(1) of the Crimes Act, 1900 which offence carries a maximum penalty of 20 years and no standard non-parole period has application. I will have regard to the maximum periods of imprisonment as a guidepost or benchmark in the way contemplated by the authorities.

5. The facts in short are that midmorning on Friday 30 March 2018 the victim of the offences, Jake Milson, was at an address in Mortdale, being the home of a friend of his. It was a unit in a small residential unit building. On the evidence before me there is nothing to suggest that any of the offenders knew that Mr Milson would be in attendance and they attended that unit for other reasons.

6. When they first arrived Mr Fajloun made a comment to Mr Milson consistent with he and Mr Milson being on good terms, which was a matter that the victim admitted during the disputed facts hearing. In due course there was an assault during which Mr Clark and Mr Raffoul principally, although not excluding Mr Fajloun, in due course, assaulted the victim occasioning a number of blows and kicks to him.

7. In due course there were demands for money made by Mr Clark and Mr Fajloun. Mr Fajloun demanded Mr Milson’s bank card. Mr Milson told the offenders the whereabouts of his bank card and after Mr Raffoul had the card and punched Mr Milson again and demanded his PIN number, the PIN number was divulged.

8. My finding permitted the possibility that both Mr Raffoul and Mr Clark left the premises at that stage. In due course they returned with $380 which was the fruit of the robbery.

9. While they were, on my finding, absent or cannot be excluded as being absent from the premises, there was further interchange between Mr Fajloun and the victim. I am prepared to make a finding on the balance of probabilities that Mr Fajloun’s conduct proceeded after he and the victim had shared some methylamphetamine.

10. Mr Fajloun’s actions for which he alone is responsible included stapling Mr Milson with a staple gun that happened to be coincidentally at the premises and pouring boiling water from a jug onto Mr Milson’s groin area. I was only able to be satisfied beyond reasonable doubt of one burning, even though the Crown originally contended for two burnings. I rejected Mr Fajloun’s explanation that that was done in some clumsy attempt at self-defence.

11. The actions that I have most recently described I have determine to treat as aggravating circumstances in relation to the detention offence against Mr Fajloun rather than both offences. First to avoid double-counting and because really the robbery had concluded effectively by the time the other two offenders left the premises and then returned with the money. It is clear that those further actions by Mr Fajloun were outside the joint criminal enterprise and are not to be visited upon Mr Clark or Mr Raffoul in terms of their culpability.

12. Given the level of injury to Mr Milson, which was more significant than would be caught by actual bodily harm, and in circumstances where each of the offenders were in breach of conditional liberty serve to aggregate the offending.

13. Given the approach that I have taken to some partial accumulation on their balance of paroles I have determined not to give particular weight to the aggravating circumstance of them being on conditional liberty because I have taken that matter into account in another way in my discretion.

14. The matters are made more serious because they were committed in the home of another person and in relation to Mr Fajloun in terms of the burning of the boiling water and the consequent groin injuries suffered by Mr Milson I am persuaded that there was some level of gratuitous cruelty. It is a mitigating circumstance that there were pleas of guilty and it is a mitigating circumstance that there was no real planning in relation to the matters.

15. The objective seriousness of Mr Fajloun’s detention offence is above midrange. In relation to all the other offending it is about at the midrange of objective seriousness taking into account all the matters that I have articulated. It is also an aggravating circumstance that each of the offenders has a significant criminal history for the purposes of s 21(2)(d) of the Act.

16. In terms of the utilitarian discount to be provided each of the offenders, as I have said, each of them pleaded guilty in the Local Court. The Crown conceded in relation to Mr Clark and Mr Raffoul that a full utilitarian discount of 25% was properly available. Given there was a factual finding against Mr Fajloun the Crown contended that it would be within my discretion to apportion him a slightly less utilitarian discount.

17. I have had sworn evidence from Mr Fajloun in relation to remorse that would otherwise be some unidentified discounting factor in relation to matters I am persuaded it is proper to provide him with a 25% discount as well.

18. The Crown did not concede that there ought to be total concurrency but accepted that there should be a high level of partial concurrency between the two counts. In the event I have determined to give each of the offenders an aggregate sentence and it will be seen when I announce the indicative sentences which have been subject to the application of utilitarian discount that there has been a relatively modest level of notional partial accumulation in relation to the matters.

19. Each of the offenders, as I have said, were on parole and had been returned to custody bail refused in relation to this matter and then their parole was revoked. In the case of R v Callaghan [2006] NSWCCA 58, and a range of other authorities that follow it, indicate that it is within the Court’s discretion to determine the extent to which sentences for further offences committed while on parole should either be concurrent with or accumulate, it is clear that it would be within my sentencing discretion to commence these sentences at the time the balance of parole period ends.

20. It is also available to give a backdate to the date each of them went into custody, which in Mr Clark’s case was 1 April 2018 and Mr Raffoul and Mr Fajloun’s case was 4 April 2018.

21. Having decided not to elevate significantly the objective seriousness assessment because of the breach of conditional liberty I am persuaded that the appropriate approach in relation to each of them is to commence these sentences one year into their balance of parole period.

22. Each of them present relatively powerful subjective cases. I propose to deal relatively shortly with each of their subjective cases. Each offender has been the subject of relatively lengthy past sentences that resulted in revocation of their parole. Although Mr Raffoul is a young man he probably has more entries on his record, but most of them were dealt with at the Children’s Court level. The sentence that he was on parole for was significantly shorter than the aggregate sentences which Mr Clark and Mr Fajloun had been serving shortly before their release.

23. Each of the offenders has community support. Each of the offenders for various reasons had difficult backgrounds.

24. Moving to some matters that particular to each of them one by one.

25. Mr Fajloun has a record that denies him leniency. I have had the benefit of two detailed psychiatric reports in relation to Mr Fajloun, one prepared relatively recently in relation to this matter and one prepared for his prior sentencing proceeding in 2015.

26. Mr Fajloun is 32. He is currently engaged to his female partner who is a pro-social force for good in his life. He has the support of his mother, although he had some difficulties with his father growing up. In the past he has been diagnosed as suffering from bipolar disorder. He was somebody who, notwithstanding some of his subjective difficulties, was good at school and excelled academically. He has attempted to make good use of the time that he has since he has been back in custody. When he was a teenager he had a condition called fibrodysplasia which resulted in a bony overgrowth in his skull which resulted in major surgery and as a teenager he was particularly embarrassed about the way he presented.

27. He gave evidence of remorse and even though the Crown properly cross‑examined him about him denying involvement in the offence when he first was questioned about it by police, I accept that he is remorseful and having had his own difficulties with his health, and indeed becoming unconscious when assaulted in the past. I accept on the balance of probabilities that he is in fact now remorseful for the way that he treated Mr Milson.

28. The material otherwise relied on by Mr Fajloun includes an insightful affidavit from his mother who was not required for cross-examination and a relative, who is a past employer, who speaks highly of his professionalism, and an indication that he would be considered again for employment by GKA Demolition & Excavation when he has his liberty.

29. Additionally, there are some certificates that show that he has been applying himself to both work and education since he has been in custody and before he went back into custody.

30. I am prepared to assess in relation to Mr Fajloun that he has reasonable prospects for rehabilitation. I am unable to find across the balance of his record that he is unlikely to reoffend. I am satisfied that he is contrite in relation to matters and I find special circumstances for him, partly as a result of the risk of institutionalisation and the fact that he will need some longer period in custody in being supervised in the community, given that he so recently went into custody on his last parole.

31. In relation to Mr Raffoul, he is the youngest of the offenders at 23, and even though he has a record that denies him leniency it is not a record that serves to aggravate in the sense of Veen v R (No2) 1988 164 CLR 465 . One of his past offences that took him into custody on the last occasion was a driving matter that had the effect of evading arrest, I am satisfied that he has a control on his classification which means that he will serve his time in maximum security.

32. Although there is a broad concordance between the criminality of he and Mr Clark, because of his youth I have slightly diluted one of the indicative sentences to be imposed and have because of the onerousness of the period that he serves in custody and his youth slightly made the aggregate sentence that he will serve slightly shorter than that to be imposed on Mr Clark.

33. It is common ground between those who appear for Mr Fajloun and the Crown, and accepted by me, that because of the objectively greater seriousness of his offending in relation to the detention matter that he will inevitably receive on parity grounds a stouter sentence than either of the other two offenders.

34. Having considered the unsworn but insightful handwritten statement by Mr Raffoul I am prepared to accept that he has some remorse in relation to the matters, although I am not able to give it the weight that had that been a sworn version before the Court. From Mr Sheehan’s helpful forensic psychological report, I am able to find that Mr Raffoul at 23 is a man of limited intelligence who grew up with a history of substance abuse and grew up in difficult circumstances.

35. Similarly, I am prepared to make a finding of special circumstances, partly as a result of the risk of institutionalisation and partly because Mr Raffoul will need some further supervision in relation to recovery from his drug abuse issues when he has his liberty.

36. Mr Clark is 38 years of age. He also has a record that denies him leniency. He has been in custody since his arrest on 1 April 2018. He is 38 years old. He is the eldest of two siblings to his parents union. He grew up in relatively stable circumstances although his natural parents split when he was very young and he and his sibling have from time-to-time spent time with their natural father, who lives an unconventional lifestyle.

37. He is currently in a stable relationship with Natasha Khowley, who is a pro-social force in his life. I am satisfied that he has the benefit of an offer of employment from Hemisphere Scaffolding when in due course he has his liberty. He has expressed a desire to attend fulltime drug rehabilitation to the psychologist, Mr Gorrell, and I accept that that similarly all goes well for his rehabilitation. Mr Raffoul has reasonable prospects for rehabilitation, but I am unable to find that he is unlikely to reoffend and I make the same findings in relation to Mr Clark.

38. I accept that Mr Clark is at a crossroads in his life, particularly given his age at 38, and he has a desire to make good his rehabilitation by way of a fulltime drug rehab placement, if it is available to him, when he is admitted to parole.

39. Given that with the exception of Mr Fajloun’s offending in relation to the detention and the things that I have said about Mr Raffoul’s both youth and maximum security classification, broadly each of the offenders, but for those matters, present similar levels of criminality and present similarly strong subjective cases that pull in two different directions.

40. For purposes of parity I have carefully considered the individual cases of each of the offenders in arriving at what I believe is an appropriate penalty, taking into account the findings that I have made about the objective seriousness. All offenders are convicted on both counts.

41. In relation to both the offences you are convicted. Each of the indicative sentences have the 25% utilitarian discount applied to them. In relation to the s 97(1) matter, but for the discount, the indicative sentence for that matter would have been something a little short of six years and the indicative sentence is four years.

42. In relation to the 86(3) matter the starting point sentence but for discount would have been six years, so that the indicative sentence is four and a half years. The aggregate sentence which I impose is four years and six months to date from 4 April 2019 and expire on 3 October 2023. There is a non-parole period of three years which means that your earliest date of release to parole is 3 April 2022.

43. I find special circumstances in Mr Raffoul’s matter. Just take a seat, Mr Raffoul.

44. In relation Mr Clark, you are convicted in relation to both offences. For both the robbery and the detention matter, but for the application of the discount, the sentence would have been six years. For each of those matters the indicated sentence is four years and six months. The aggregate sentence is one of five years to date from 1 April 2019 and to expire on 31 March 2024. There is a non-parole period of three years and six months, which means your earliest date of release to parole is 30 September 2022. I find special circumstances. Just take a seat.

45. I found special circumstances in relation to Mr Clark’s matter. In arriving at each of the penalties, and particularly for the robbery matter, I had regard to the submissions of all of the parties about the case of R v Henry (1999) 46 NSWLR 346; (1999) 106 ACrimR 149. In arriving at the indicative sentences I had regard to the submissions about R vSpeechley [2012] NSWCCA 130 in terms of arriving at the appropriate sentences in relation to the detention matters.

46. Mr Fajloun, in relation to the robbery matter, but for the application of the utilitarian discount there would have been a starting point sentence for the robbery of six years, but the indicative sentence is four years, six months. In relation to the s 86 matter, taking into account the particular findings that I was obliged to make in that matter given your evidence about the matter, the starting point sentence for the 86(3) matter would have been eight years, and with discount becomes six years.

47. The aggregate sentence is six years and three months to date from 4 April 2019, expiring on 3 July 2025, and there is a non-parole period of four years, three months, which means your earliest date of release to parole is 3 July 2023. I find special circumstances in Mr Fajloun’s matter.

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Decision last updated: 13 May 2020