Nasser v R

[2017] NSWCCA 104

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Nasser v R [2017] NSWCCA 104
Hearing dates:	24 April 2017
Decision date:	24 May 2017
Before:	Hoeben CJ at CL at [1] Price J at [2] Fullerton J at [3]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive – dishonestly damaging property by fire with a view to obtaining a gain for another – joint criminal enterprise – subjective circumstances – statutory aggravating factors – general deterrence – specific deterrence – offence committed in company as part of a planned criminal activity without regard for public safety – extent of damage to building bearing on objective seriousness of offence – whether emphasis on level of awareness (and actual materialisation) of risk to public safety converted sentencing judge’s assessment of applicant’s state of mind regarding public safety into de facto extension of criminal liability – whether sentence suggestive of overstatement or wrong assessment of applicant’s culpability
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 Lowndes v R (1999) 195 CLR 665; [1999] HCA 29 Markarian v R (2005) 228 CLR 357; [2005] HCA 25 R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v Dinos [1999] NSWCCA 208 R v Khan [2016] NSWSC 1073 R v Taula (2015) 248 A Crim R 502; [2015] NSWCCA 8 Saleib [2005] NSWCCA 85 Wong v R (2001) 207 CLR 584; [2001] HCA 64
Category:	Principal judgment
Parties:	Ibrahim Nasser (Applicant) The Crown (Respondent)
Representation:	Counsel: T Game SC (Applicant) H Roberts (Crown)   Solicitors: Lawyers Corp Pty Limited (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2014/211299
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 16 November 2015 Before: Garling ADCJ File Number(s): 2014/211299

Judgment

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

2. PRICE J: I agree with Fullerton J.

3. FULLERTON J: The applicant, Ibrahim Nasser, seeks leave to appeal against the sentence imposed on him in the District Court on 16 November 2015 following his plea of guilty, entered in the Local Court, to one count of dishonestly damaging property by fire with a view to obtaining a gain for another contrary to s 197(1)(b) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 14 years imprisonment.

4. The applicant was sentenced to 6 years and 9 months imprisonment with a non-parole period of 4 years and 5 months commencing on 17 July 2014 and expiring on 16 April 2021. The non-parole period is due to expire on 16 December 2018.

5. The sole ground of appeal is that the sentence is manifestly excessive.

The facts found for sentencing purposes

6. A statement of agreed facts was tendered by the Crown on sentence. They were reproduced in the sentencing remarks as follows:

The [applicant] is an acquaintance of two co-offenders. At the time of the offence one of the co-offenders was part owner and manager of a business known as the Friendly Grocer, which is a supermarket located in Amy Street, Regents Park. The supermarket is located on the ground floor beneath a complex of residential apartments. At the back of the property is a car park which is accessed by a rear laneway.

During the evening of Saturday 1 February 2014 the [applicant] entered the supermarket via the rear door and spoke with the co-offenders. One of the co-offenders was responsible for locking up the store and had closed it to customers and the main lights were turned off. The [applicant] went to a shelf, removed a packet of dishwashing gloves which he opened and placed on his hands whilst being given directions by one of the co-offenders.

The three offenders walked to the rear of the supermarket where the fridges were located. The [applicant] stood on top of milk crates. One of the co-offenders handed him cardboard and sticky tape which the [applicant] used to cover the alarm system and motion detector which was in the ceiling of the building. One of the co-offenders was a "lookout" to ensure no one entered.

The three offenders then carried items throughout the store, removing stock from the store, moving one of the fridges to obstruct a walkway before leaving the supermarket.

Later that evening, shortly before midnight, the [applicant] returned to the store with another two unknown offenders. Together they piled items together within the store to create a fuel load and poured petrol on the floor. The [applicant] smashed the glass door of the fridges at the back of the store and poured petrol inside the fridges. The offenders then set fire to the petrol and fled the building via the rear entry.

A witness who was returning home at the time of the fire smelt petrol and heard male voices coming from inside the supermarket. He approached the rear door of the supermarket and heard one of the offenders say from inside, "get the fuck out of here". One of the offenders then opened the rear door and the offenders ... fled from the building.

Residents in the apartment above the supermarket smelt petrol coming from the supermarket. [They] heard loud explosions as the fire was started. The force of the explosions from the fire caused the windows and steel security gates at the front of the shop to be blown across the road.

The fire in the store prevented the residents from leaving the building via the usual stairway access and they were forced to escape from the fire by jumping from one of the resident’s balconies with the assistance of [a person] below who had come to help.

7. The sentencing judge noted that police and fire rescue units attended the scene and that after the fire had been extinguished it was readily determined that it had been deliberately lit. Police were able to retrieve CCTV footage. Although the sentencing judge does not refer to it in his sentencing remarks, it would appear from the evidence tendered on sentence that it was the CCTV footage that resulted in the applicant being identified and arrested five months after the fire.

8. The detective in charge of the investigation gave evidence in the sentencing hearing that there were four residential units above the seat of the fire which housed four families, including teenage children and one child under the age of five. One woman was in the last term of a pregnancy. The sentencing judge noted that a number of residents were treated in hospital for smoke inhalation. The detective also gave evidence that some of the residents were treated for abrasions.

9. Later on the morning of 1 February 2014, one of the co-offenders contacted his insurance broker to inform him of the fire. An insurance claim in the amount of $950,000 was subsequently lodged under a stock and business interruption insurance policy.

10. The applicant was arrested at his home on 17 July 2014. He elected to make no comment in the course of a recorded interview upon his arrest. He was remanded in custody. His sentence was fully backdated to account for his pre-sentence custody.

The applicant’s subjective circumstances

11. The Crown tendered a pre-sentence report in which the applicant's family and social circumstances were reported upon, together with his medical profile and his education and employment history.

12. The applicant tendered a report from Tim Watson-Munro, a consultant forensic psychologist, and three testimonials from family members and community members attesting to his prior good character and his standing in his family and in the community. The applicant did not give evidence on sentence.

13. The applicant was aged 35 at the time of sentence. He had no criminal record and had no previous contact with community corrections.

14. He is of Syrian/Lebanese descent. His parents migrated to Australia in 1976. He is the youngest of six siblings. He was divorced in 2012. He has three children under the age of 10 years. The children reside with their mother. The applicant had regular access to them before his arrest and was involved in their schooling and community/sporting activities.

15. The applicant had most recently worked in the telecommunications industry as a subcontractor. He was the designated carer for his parents who had age-related health issues at the time of the offending.

16. The applicant suffers from a genetic disorder (Familial Mediterranean Fever), a condition which affects his gastrointestinal system causing lethargy and intestinal pain and which has resulted in past hospitalisations and other medical treatment, including whilst he has been in custody. Mr Watson-Munro noted that the treatment the applicant was receiving in the community had lapsed at the time of the offending and that, in his view, the applicant’s medical history is a major consideration of his incarceration. As at the date of sentence, the applicant had been transferred to Long Bay from Bathurst and Parklea prisons for more effective treatment for his condition.

17. Although on clinical examination there was no indication that the applicant suffered from a major psychiatric disorder, in Mr Watson-Munro’s opinion the applicant was suffering severe depression and an anxiety disorder of long-standing duration referable to his poor state of physical health and the breakdown of his marriage. In Mr Watson-Munro's opinion, this, together with the applicant’s substantial financial distress, rendered him susceptible to adverse peer group dynamics which had a direct bearing on his offending. Although the sentencing judge made specific reference to what Mr Watson-Munro described as the applicant’s susceptibility to peer group dynamics, it is not clear whether his Honour treated it as mitigating the objective seriousness of the offending. It was, however, relied upon on the appeal as capable of bearing that interpretation. In circumstances where the applicant has no criminal antecedents, I am prepared to proceed on the basis that what Mr Watson-Munro described as the applicant’s emotional vulnerability was at least capable of providing some insight into his offending although, given his age and his apparent willingness to assist his co-offenders when asked, I do not regard it as reducing his culpability to any significant degree.

18. Although the applicant acknowledged responsibility for his offending in the pre-sentence report and that, by his actions, he had endangered the safety of people, he claimed that he was unaware there were people living above the supermarket. He also claimed that he did not become involved in the offence for any personal gain.

19. The sentencing judge was satisfied that the applicant’s expressions of remorse were genuine, that he was unlikely to reoffend and that he had good prospects of rehabilitation. However, he expressed doubts as to the truth of the applicant's assertion to the author of the pre-sentence report that he was unaware of people living above the supermarket, as he did as to the truth of other aspects of the applicant’s account of his motivations. In particular, the sentencing judge rejected the submission advanced on the applicant's behalf that he was not fully aware of the consequences of his actions because of some compromise to his mental functioning at the time.

20. Although his Honour did not find as a fact for sentencing purposes that the applicant knew there were families living above the supermarket, he found that he was at least reckless as to whether there were people living in the building, a finding consistent with the applicant having entered the supermarket on two occasions on 1 February 2014, the first to disarm the security systems and to set the fire and then later, when the petrol which was dispersed by him was ignited.

21. The applicant was not sentenced on the basis that he ignited the petrol but rather that he was engaged in a joint criminal enterprise to commit the offence charged and was present when the petrol was ignited. The sentencing judge did find that the applicant played an important role, inter alia by helping to create a fuel load inside the supermarket in the process of the fire being set, and that his criminality was not diminished by the fact that the financial gain from the lodgment of the fraudulent insurance claim was intended for the benefit of a co-offender.

22. In the result, the sentencing judge was satisfied that the gravity of the offending, together with the combined effect of a number of statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the need for the sentence to reflect the need for general deterrence, warranted a sentence exceeding the 3 years and 6 months proposed by the applicant's counsel.

23. The sentencing judge considered both specific and general deterrence were important features of the sentencing process as to which he said:

… This is a very serious offence. Whilst the Crown cannot point to who actually lit the fire, it was a joint criminal enterprise between the various offenders. The offender must be sentenced in such a way that he understands he cannot offend in this way and importantly that others in the community realise that if they commit offences of this type they face terms of imprisonment and lengthy terms of imprisonment.

24. The aggravating features to which his Honour referred included that the offence was committed in company (s 21A(2)(e)); that it was part of a planned criminal activity (s 21A(2)(n)); and that the offence was committed without regard for public safety (s 21A(2)(i)). In respect of the last mentioned feature of aggravation, the sentencing judge emphasised that the residents living above the supermarket, each of whom was initially roused from sleep by the smell of petrol and then alerted to the fire by one of the residents returning home, were at serious risk of being killed or seriously injured, being unable to escape the fire by ordinary means of egress and having to jump from the building as a result. The sentencing judge also regarded the offending as aggravated by the loss and damage resulting from the offence being substantial. It is not clear on what basis his Honour regarded that as a factor aggravating the offending since it is not an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act. The extent of the damage to the entire building is however a factor bearing on the objective seriousness of an offence under s 197(1)(b) of the Crimes Act where damage to property is a constituent element of that offence. Treated in this way, there is no breach of the principle that a feature of aggravation cannot be taken into account on sentence where that factor is an element of the offence charged (see R v Taula (2015) 248 A Crim R 502; [2015] NSWCCA 8). It was not submitted on the appeal that his Honour’s reference to the loss being substantial as an “aggravating factor” was an error supportive of this Court finding that the sentence was manifestly excessive.

Has the applicant demonstrated that the sentence is manifestly excessive?

25. If the applicant is to succeed is his contention that the sentence imposed is manifestly excessive by being “unreasonable” or “plainly unjust”, settled principle dictates that an examination of the circumstances of the offence and the personal circumstances of the applicant must compel the conclusion that there must have been some misapplication of principle or wrong exercise of the sentencing discretion even though patent error cannot be identified (see Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at 371; and Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [59]). Whether the sentence imposed is manifestly excessive requires an examination of the circumstances of the offence and the personal circumstances of the offender (see Hili at [60]). Manifest excess is a conclusion only reached after undertaking an examination of a sentence in the context that there is no single correct sentence and that the exercise of the sentencing discretion is not a mathematical exercise (see Hili at [59]).

26. Mr Game SC did not take issue with the sentencing judge’s assessment of the objective seriousness of the offending as “very serious” or that the offending was above the mid-range of offending for the conduct comprehended by a breach of s 197(1)(b) of the Crimes Act, to the extent that quantification of the objective seriousness was appropriate where no standard non-parole period attached to the offence. Neither was issue taken with the sentencing judge’s finding that the offending was aggravated by being committed without regard for public safety as provided for in s 21A(2)(l) of the Crimes (Sentencing Procedure) Act. Mr Game also acknowledged that the immediacy and gravity of the actual risk of harm to the residents who were asleep in their beds above the seat of the fire when the petrol was ignited, and the extent of the applicant’s appreciation of that risk, informed his moral culpability (see Saleib [2005] NSWCCA 85 at [51]-[57]).

27. Mr Game submitted however that the sentencing judge’s emphasis on the applicant’s level of awareness of risk (in the sense that his Honour was satisfied that he was at least reckless as to whether there were residents in the building when the petrol was ignited) and the extent to which the risk to their safety actually materialised, as evidenced by the measures taken by them to escape the fire, has converted the sentencing judge’s assessment of the applicant’s state of mind as an aspect of his lack of regard for public safety generally (an enquiry necessarily undertaken ex hypothesi) into a de facto extension of his criminal liability at the time he committed the offence, when neither recklessness as to endangerment of life and/or actual endangerment to life comprise the mental element of the offence under s 197(1)(b).

28. While s 198 of the Crimes Act provides for an offence where a person destroys or damages property intending to endanger the life of another, there is no offence under the Crimes Act where, when premises are deliberately damaged or destroyed, reckless endangerment of life is the mental element. That being the case, Mr Game did not seek to persuade the Court that a latent De Simoni error (R v De Simoni (1981) 147 CLR 383; [1981] HCA 31) had influenced the sentencing outcome or that the sentence imposed was rendered “unreasonable or unjust” for that reason alone. Rather, the question is whether the sentence of 6 years and 9 months with a non-parole period of 4 years and 5 months against a statutory maximum of 14 years is suggestive of an overstatement or wrong assessment of the applicant’s actual culpability for the offence charged.

29. It is fundamental to the proper exercise of sentencing discretion that an offender’s culpability is marked out referable to the constituent legal elements of the offence under consideration including, where relevant, considerations of features of aggravation or mitigation under s 21A of the Crimes (Sentencing Procedure) Act or at common law. In this case, an assessment of the applicant’s culpability by his participation in the joint enterprise to destroy the supermarket and the means he and others employed to achieve that outcome necessarily included an assessment of the gravity of the risk to public safety, not only to the residents who were forced to escape the burning building but members of the public more generally. In my view, the applicant’s culpability is of such high order that despite the sentencing judge’s findings as to his troubled mental state at the time of the offending and his otherwise favourable subjective circumstances, I am not persuaded that the sentence imposed is unreasonable or plainly unjust.

30. Neither am I persuaded that the schedule of cases or the JIRS statistics to which the Court was referred lead to the conclusion that the sentence imposed is unreasonable or plainly unjust. While the sentence of imprisonment the applicant received is higher than those imposed in the published cases that have been located by the parties, that does not, of itself, mandate a finding that his sentence is manifestly excessive. As the Crown has pointed out and as the applicant’s counsel fairly conceded, only two of the six reported cases that might be considered comparable in terms of objective seriousness included the risk to public safety as a feature of aggravation.

25. In R vDinos [1999] NSWCCA 208 the offender was found guilty at trial of two offences: dishonestly destroy/damage property by fire and publish a false statement to obtain money. He was sentenced to 4 years imprisonment with a non-parole period of 3 years on count 1 and a fixed term of 9 months on count 2 to be served concurrently. The offender was a joint lessee of a chicken shop which was in financial trouble. He poured petrol around the shop and set it alight. The fire completely destroyed the shop and caused significant damage to adjoining premises in a total amount of $1.2 million. The sentencing judge observed that it was a miracle that no one was killed or seriously injured. The offender was 60 years old at the time of sentence and, aside from taking medication for depression, was not under any mental or physical disability. He had no prior convictions and was of prior good character. He had a very low risk of reoffending. There was a period of delay of almost seven years between the date of the offending and the date of sentencing. The sentence was not found by this Court to be manifestly excessive. Although that sentence was shorter than the sentence imposed upon the present applicant and imposed after trial, it was longer than any of the cases identified by the statistics before the Court in 1999. Simpson J, with whom Studdert J agreed, noted at [21] that a wide range of criminality and factual situations may exist with respect to arson offences, and a small statistical sample meant that the statistics were of no real assistance in determining the appeal. I am driven to the same conclusion on this appeal.

26. The only other potentially comparable case is R vKhan [2016] NSWSC 1073. In that case the offender was found guilty after trial of six offences: one count of murder, two counts of manslaughter, one count of recklessly causing grievous bodily harm, one count of reckless wounding and one count of destroy/damage property with a view to obtaining a gain contrary to s 197(1)(b) of the Crimes Act. The offender set fire to a convenience store he operated in Rozelle where three people who were living above the premises were killed, being unable to escape the fire, and two other residents injured as they made their escape. The offender was to benefit financially from the fire. The offence under s 197(1)(b) was aggravated because it was committed without regard to public safety however the impact of that factor in the assessment of the indicated sentence of 4 years was necessarily tempered to avoid the risk of double counting given the sentences that were indicated for the other offences were the direct consequence of that risk materialising in death and injury. The applicant was a person without a criminal history. There was no remorse. He was sentenced to a non-parole period of 30 years.

27. Given the very limited cohort of cases available for comparative purposes (there were only twelve cases in total included in the statistics dating from 1999, with only eight of those attracting sentences of full-time imprisonment), I do not consider it a meaningful exercise to approach the applicant’s sentence as being at the top of an identifiable range of sentences for offending against the section. Although the sentence imposed after the discount for the plea of guilty is at the high end, it is, in my view, neither unreasonable nor plainly unjust having regard to the objective and subjective circumstances of this case.

28. It is not to the point that a lesser sentence might have been imposed at first instance or that this Court might have imposed a lesser sentence by giving less or more weight to one or more of the features of objective seriousness or the applicant’s subjective circumstances (see Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [22]). The Court's consideration of a ground of appeal based on manifest excess is constrained by the fact that it may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion (see Lowndes v R (1999) 195 CLR 665; [1999] HCA 29 at [15]).

29. The order I propose is that leave to appeal be granted but the appeal dismissed.

**********

Decision last updated: 24 May 2017