R.V. AL-ZAABI

[2001] NSWCCA 538

CITATION:	R.V. AL-ZAABI [2001] NSWCCA 538
FILE NUMBER(S):	CCA 60768/00
HEARING DATE(S):	31 October 2001
JUDGMENT DATE:	20 December 2001
PARTIES :	Regina - Appellant Khalid AL-ZAABI - Respondent
JUDGMENT OF:	Beazley JA at 1; Hulme J at 2; Barr J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/1036
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

COUNSEL :	Mr G.E. Smith for the Crown Mr P.M. Strickland for the respondent
SOLICITORS:	S.E. O'Connor for the Crown D.J. Humphreys for the respondent
CATCHWORDS:	Criminal law - Sentencing - Crown Appeal - delay in serving notice of appeal - respondent avoided service - whether Court should decline to interfere with an inadquate sentence
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Eastway Court of Criminal Appeal 19 May 1992 unreported R v Cartwright (1989) 17 NSWLR 243 R v Clavert Court of Criminal Appeal 18 February 1983 unreported R v O'Neill Court of Criminal Appeal unreported 24 July 1996 R v Brillo Court of Criminal Appeal unreported 14 May 1997 R v Molesworth [1999] NSWCCA 43 R v Fischer [2001] NSWCCA 143 Bugmy v The Queen (1990) 169 CLR 525 Malvaso v The Queen (1989) 168 CLR 227
DECISION:	See Judgment at Paragraph 49

60768/00
Beazley JA
Hulme J
Barr J


20 December 2001

Regina v Khalid Al Zaabi

Judgment

1 Beazley JA: I agree with Barr J.

2 Hulme J: I agree with Barr J.

: This is a Crown appeal against sentences imposed upon the Respondent in the District Court. On 3 November 2000 he pleaded guilty to charges that -

(i) On 29 October 1997 he dishonestly obtained for himself $30,000
by deception, namely by electronic transfer of funds from his employer’s bank account to his own bank account;
(ii) On 29 October 1997 he engaged in a transaction, namely the purchase of a motor vehicle, with money which he knew was the proceeds of a serious offence;
(iii) On 15 February 1998 he dishonestly obtained for himself a financial advantage, namely $10,000, by deception, namely by swiping his bank card into an electronic machine belonging to a shop, thereby creating a refund transaction for his own credit;
(iv) On 27 February 1998 he dishonestly obtained for himself money, namely $30,000, by deception, namely the unauthorised transfer of funds from the bank account of another organisation to his own bank account;
(v) On 28 February 1998 he engaged in a transaction, namely the purchase of a number of electrical components worth $3,000, knowing that the money used was the proceeds of a serious offence; and
(vi) On 2 March 1998 he engaged in a transaction, namely the purchase of some car wheels worth $1,460, with money that he knew was the proceeds of a serious offence.

4 He was sentenced on the first, third and fourth counts to concurrent sentences of two years six months’ imprisonment, commencing on 17 July 2000 and expiring on 16 January 2003. A non-parole period of sixteen weeks and one day was fixed, commencing on 17 July 2000 and expiring on 7 November 2000. The sentencing judge declared that the respondent would be eligible for parole but that it would be a condition of parole that he be admitted to the residential gambling rehabilitation course conducted by the Salvation Army at the William Booth Institute. It was a further condition that he remain in the programme at that Institute and that on completion he submit himself to the supervision of the Probation and Parole Service, attend courses and undertake such treatment and do such other things as the Service should require.

5 On the remaining counts the sentencing judge imposed concurrent fixed terms of three months’ imprisonment commencing on 17 July 2000 and expiring on 16 October 2000.

6 The facts, a statement of which was put before the sentencing judge, may be summarised as follows. Between 30 September and 29 October 1997 the respondent was a temporary employee of a company, Gupta’s Communication Pty Ltd, which operated a mobile phone franchise at Neutral Bay. The business had an EFTPOS facility for electronic credit card purchases. It was necessary for refunds to be made to customers’ accounts from time to time, and they could be effected through the same facility. In that way credits could be passed directly to customers’ bank accounts. On 29 October 1997 the respondent used the EFTPOS machine to process four credits into his own bank account, totalling $32, 000. He had no permission to do so and was not entitled to the money. On the same day he withdrew the money from his account and used $29,000 of it to buy a motor vehicle.

7 On 15 February 1998 he entered a telecommunications shop in Haymarket, Sydney and engaged the shop assistant in conversation. Other customers entered the shop and the assistant went to attend to them. The respondent went to the EFTPOS machine and used a card issued to him by a bank in order to process a refund of $10,000 from the shop business to his personal savings account. He did this by entering into the EFTPOS terminal what he knew to be a password routinely issued by the bank on delivery of such machines. He later removed this money or most of it from his account.

8 He befriended Miss Rima Nigroh, an employee of another telecommunications business at St. Leonards. He told her how he had been diverting money to his bank account by the use of EFTPOS machines. He said that he wanted to remove $50,000 from Miss Nigroh’s employer’s business into his account and offered her $25,000 for her assistance. She agreed to help. On the evening of 27 February Miss Nigroh entered her employer’s premises and told a lie to trick the only employee present into leaving the building. Then she let in the respondent. He used the company’s EFTPOS machine to transfer $30,000 into his bank account. He later withdrew most of that money.

9 On the following day he used part of the money to buy electrical equipment for fitment to his car and on 2 March 1998 he used further money from the same source to buy chrome car wheels.

10 Miss Nigroh admitted her part in the deception of her employer and pleaded guilty to obtaining money, a valuable thing or a financial advantage by deception. She was given the benefit of a two-year bond to be of good behaviour. Her statement was put before the sentencing judge.

11 The respondent was born on 28 August 1973, so he was twenty-four years old when he committed the offences. He was twenty–seven years old when sentenced. He was arrested on 25 December 1997, charged with the first two counts and granted bail. He committed the other offences whilst on bail. He was in custody for unrelated offences between 9 June and 14 August 1998. During that period he was arrested and charged with the fourth, fifth and sixth counts the subject of this appeal. On 13 August 1998 he was granted bail on those counts. On 8 September 1998 he was charged with the third count and granted bail. On 12 March 1999 he was committed for trial. On 6 September 1999 he failed to appear for trial at the District Court. He was arrested on 9 September 1999. On 13 September 1999 he was granted bail, which he entered two days later. On 8 May 2000 he again failed to appear for trial. He was arrested on 17 July 2000 and remained in custody until sentenced by his Honour.

12 The respondent gave evidence before his Honour. He said that he had been born and educated overseas and had come to Australia with his family in 1994 and settled here. He had held a range of jobs. His Honour found that the respondent had been a compulsive gambler since 1996. At a time which was not specified he had spent a period of about three months in custody on remand, charged with offences unrelated to the ones now under consideration. Eventually those charges were dismissed, but whilst the applicant was being held in police cells he was assaulted. He told his Honour that he was still suffering from the resulting back pain. He said that he was being held on protection, though that must have been at his own request, because there was no suggestion of any particular contemporary danger.

13 The applicant said that it was his fear of custody, engendered by the assault and its consequences, that made him decide not to appear for trial on 8 May 2000. He did not explain why he had failed to appear in 1999.

14 The applicant told his Honour that he had been reporting daily to the police station as a condition of his bail. In that regard his evidence was only partly true. The conditions of his bail granted on 13 August 1998 did require daily reporting, but they were varied on 23 April 1999 to require reporting on only three days per week.

15 The respondent said that he was ashamed of what he had done. He had formed a relationship with a young woman, then of eighteen months’ duration. Under the influence of that relationship his gambling had dramatically decreased, though it had not ceased. He wanted to stop gambling. He had stopped offending. He wanted to enter the ten-month residential programme offered at the William Booth Institute.

16 There was no evidence to suggest that the applicant had committed any offences before he began residing in Australia. Since 1997 he had been convicted of a number of offences of dishonesty, including seven counts of stealing or embezzling from his employer, three of obtaining a benefit by deception, four of stealing or receiving and two of stealing motor vehicles, all or any of which might have been linked to the respondent’s desire to gamble. There were others, however, with no such apparent connection, namely six offences of driving whilst cancelled or disqualified, two of fraudulently altering or using number plates and three of stating a false name and place of abode. The respondent’s aliases incorporated seven different dates of birth.

17 A pre-sentence report was put before his Honour. The reporter noted that the respondent had strong family support and that he had seen a gambling counsellor. His desire to enter the William Booth programme was noted. It was said that he has some insight into his offences. His remorse appeared genuine to the reporter.

18 His Honour accepted as genuine the respondent’s desire to cure himself of his addiction to gambling. He referred to some remarks of Hunt CJ at CL in R v Eastway, an unreported decision of this Court of 19 May 1992 in which His Honour spoke about the relative strictures of custodial sentences and residential rehabilitation programmes, then to R v Cartwright (1989) 17 NSWLR 243 where, his Honour said, the Court made an allowance of seventy-five percent where a person was living under very close police surveillance. His Honour said that he had dealt with the matter in such detail because he proposed to impose a sentence which was commensurate with the seriousness of the offences and for the purposes of general deterrence.

19 His Honour noted the respondent’s desire for rehabilitation, that for a considerable period of time he had reported daily on bail, and that he was being held in strict (sic) protection and concluded that these circumstances justified the fixing of a non-parole period of less than three quarters of the term of the sentences. Accordingly, his Honour fixed on the longer sentences a non-parole period which commenced when the respondent was returned to custody and expired four days after the day on which the sentences were imposed.

20 On appeal the Crown made no complaint about the head sentences or about his Honour’s finding that the circumstances combined to produce the need for a longer period of parole than one-quarter of the effective head sentence. The Crown submitted that the magnitude of the reduction of the non-parole period on that account had produced a sentence which was so manifestly inadequate as to disclose an error of principle. It was submitted that his Honour showed insufficient regard for general deterrence.

21 The non-parole period without reduction under s 44 (2) Crimes (Sentencing Procedure) Act would have been one year ten and one-half months. Other than noting the circumstances found to warrant the reduction of the non-parole period, his Honour gave no explanation why he was imposing such an extraordinarily short non-parole period.

22 The Court was referred to a number of cases which were said to show that, exceptionally, I think, the fact that an offence is committed to feed a gambling habit may operate to mitigate criminality, namely R v Calvert Court of Criminal Appeal, New South Wales 18 February 1993 unreported; R v O’Neill Court of Criminal Appeal, New South Wales unreported 24 July 1996; R v Brillo Court of Criminal Appeal, New South Wales unreported 14 May 1997; R v Molesworth [1999] NSWCCA 43; R v Fischer [2001] NSWCCA 143. Allowing that such exceptional cases may exist, however, I do not think it necessary to decide whether this may have been one of them, because in my opinion the non-parole period was in any case inadequate.

23 I infer from his Honour’s express recognition of the need to impose a deterrent sentence and his fixing a non-parole period of only sixteen weeks and one day that his Honour was of the view that it was only the head sentence which should be concerned with general deterrence. If that was his Honour’s view it was erroneous. The non-parole period is the minimum time the sentencing court determines justice requires that an offender must serve, having regard to all the circumstances of the offence, including its objective seriousness: Bugmy v The Queen (1990) 169 CLR 525.

24 In my opinion his Honour failed in fixing the non-parole period to give proper weight to the objective seriousness of the offences, including that most of them were committed whilst on bail, some constituted serious breaches of trust and all were repeated offences of their kind. Neither, I think, did the non-parole period take any account of the need to deter the respondent himself from repeating offences of a like kind.

25 The resulting non-parole period fell so short of an appropriately deterrent sentence that, having in mind the caution with which this Court should approach Crown appeals, I think that the sentences should be disturbed.

26 Two circumstances exist which might enliven the Court’s discretion not to interfere with the sentences in spite of their inadequacy. First, because the respondent was released from custody at the end of the non-parole period fixed by his Honour, the imposition by this Court of a longer non-parole period would ordinarily have resulted in the return of the respondent to custody. The Court is ordinarily cautious about allowing Crown appeals where the resulting sentence would have such an effect. Here the principle does not operate, however, because in the circumstances which I shall summarise the respondent has already been returned to custody because of his breach of the conditions of his parole, something entirely of his own making.

27 The second circumstance is the late service of the Notice of Appeal upon the respondent.

28 His Honour sentenced the respondent on 3 November 2000. On 14 November the respondent was handed a letter informing him that the Director of Public Prosecutions was considering an appeal against the sentences. On the next day he telephoned a solicitor in the Office of the Director of Public Prosecutions and told him that he had been refused entry to the residential course at the William Booth Centre and that his residential address would be 22 Frazer Avenue Lurnea. In due course the Director signed a Notice of Appeal and a solicitor in his office sent it together with associated documents under cover of a letter of 28 November 2000 to the officer in charge of the police station at Liverpool. The letter required immediate service of the Director’s letter and of a copy of the Notice of Appeal. It became the duty of Sergeant Anthony McLean to serve the documents. The covering letter correctly stated the respondent’s address. So did a letter informing the respondent that the Director had lodged an appeal. A copy of that letter, to which were added provisions for the respondent’s signature and particulars of his legal representative, incorrectly stated the respondent’s address as 27 Frazer Avenue, Lurnea.

29 Sergeant McLean did not serve the Director’s letter or the copy of the Notice of Appeal. The respondent was arrested on 14 June 2001 and returned to custody. He was handed a copy of the notice of appeal in June or July 2001 during the period of that custody.

30 Two affidavits of Sergeant McLean were read on the hearing of the appeal and he gave oral evidence and was cross-examined. In his affidavit of 19 September 2001 he said that he had received the copy of the Notice of Appeal for service on the respondent at 27 Frazer Avenue Lurnea and went on to describe his attempts to serve it there. On 28 October 2001 counsel for the respondent signed written submissions drawing attention to the discrepancy between that address and the address at which the respondent had told the solicitor that he would be living. The Crown responded by having Sergeant McLean swear a further affidavit on 29 October 2001. In it he said that he had erred in describing the address at which he had attempted service as 27 Frazer Avenue. It was 22 Frazer Avenue. He had not attended 27 Frazer Avenue. He told the Court that he had used a document sent to him by the Office of the Director of Public Prosecutions to refresh his memory in preparing his affidavit. The document had stated the incorrect address. In that regard, his evidence received support from the copy of the Director’s letter to which I have already referred and which stated the wrong address. It seems clear that on some of its documents the Office of the DPP had recorded the respondent’s correct address and on others the incorrect address. Sergeant McLean said that before attempting to serve documents on the respondent he had obtained an address from police records as well as some photographs of the respondent. Finally, he told that Court that on the evening before the hearing of the appeal he had visited Frazer Avenue, Lurnea. He had looked at the houses numbered 22 and 27 respectively. He reiterated that it was at number 22 that he had tried to effect service.

31 In my opinion the further affidavit and the oral evidence of Sergeant McLean explain the discrepancy and I am satisfied that it was at the respondent’s residential address, 22 Frazer Avenue, Lurnea, that he attended in order to try to effect service of the Director’s letter and of a copy of the Notice of Appeal.

32 In his affidavit of 19 September 2001 and in his oral evidence Sergeant McLean said that between 8 and 18 December 2000 he attended the address on five or six occasions. The front door was open but the wire door was closed. He could hear people inside but could not get anyone to respond to his calls. On the last occasion before 18 December 2000 he was greeted at the door by a man. He told the man that he was looking for the respondent to serve a summons in a matter of an appeal to the Court of Criminal Appeal. He thought that he might have said that it was about a drink driving matter but he could have been mistaken about that. The man told him that he was the respondent’s father. He said that the respondent was working at Sports Car Rentals in the Kings Cross area. After that date, said Sergeant McLean, he attended the vicinity of the house on a number of occasions, both early in the morning and at night and watched the house. He never saw the respondent entering or leaving the premises.

33 The respondent swore an affidavit on 31 October 2001 and gave oral evidence on the appeal. He said that he was living at 22 Frazer Avenue, Lurnea at all relevant times and denied having avoided service. He said that he had moved to and from those premises during the relevant period of time.

34 It is necessary for the Crown in bringing an appeal to comply strictly with all relevant requirements: Malvaso v The Queen (1989) 168 CLR 227. However, there is no requirement in the Criminal Appeal Act or the Rules for service by the Crown of a Notice of Appeal on a respondent or for service in any particular manner. There is no provision for substituted service.

35 Rules 73, 74 and 75 Criminal Appeal Rules appear under the heading Service of Orders and Notices. They are in these terms -

73 Service by police officer
Where personal service of any order or other documents is required, the Commissioner of Police shall, at the request of the Registrar, cause such order or other document to be served by one of his officers.
74 Service by post
Any notice or other document, of which personal service is not required by any rule or direction of the Court, may be served by post.
75 Time of service of notice of appeal or application
Any notice of appeal, or of any application to the Court by an appellant in custody, shall be deemed to have been given at the time when it is delivered for posting to the officer of the gaol where the appellant is imprisoned, and the time of such delivery shall be indorsed thereon by such officer.

36 Rule 75 was promulgated (as Rule 74) on the original publication of the Rules on 15 July 1912, a time before s 5D Criminal Appeal Act was enacted to give the Crown the right of appeal against a sentence. The Regulations have never been amended to deal with the service of Crown appeals.

37 The Court was told that the practice of the Office of the Director of Public Prosecutions is to have all such notices personally served. That, it seems to me, is a sound practice. I think that the question that arises here is whether in all the circumstances the Crown has acted reasonably.

38 It seems to me that the Crown did do all that could reasonably have been required to effect service of the Notice of Appeal personally on the respondent. I think that the respondent would have received official notification of the appeal within a reasonable time after the imposition of sentence if he had not deliberately avoided service. My reasons for coming to this conclusion are as follows.

39 It strikes me as unusual that in all but one of the five or six visits Sergeant McLean made to the respondent’s residence, all made on occasions when there were people in the house, he should have been unable to draw any response at all. On the one occasion when he could draw forth a response the respondent was not there. It is also unusual that the officer should have seen no sign of the respondent near his residence on occasions when he might have been expected to be seen leaving for work or returning from work. The evidence of Sergeant McLean, which I accept, suggests that the respondent was deliberately keeping out of sight in order to avoid being served with the Notice of Appeal which he had good reason to expect had been filed.

40 I am fortified in my conclusions by evidence of the several occasions on which the respondent otherwise deliberately acted so as to frustrate the criminal proceedings which he knew were being brought against him or to refuse to comply with his obligations, in all cases to avoid the risk of being ordered to serve a custodial sentence. The admitted occasions were as follows -

(i) On 6 September 1999 he deliberately did not attend for his trial;

(ii) On 8 May 2000 he deliberately did not attend for his trial;

(iii) He ceased to report to his parole officer, Ms Haddad, because he knew, as she had told him, that there were warrants out for his arrest.

On each of these occasions his reason for breaching his bail or parole obligation was to avoid, as he saw it, the risk of being sent to gaol.

41 There are other reasons why I would not accept the denials of the respondent that he acted deliberately to avoid being spoken to by Sergeant McLean. His record shows that he is a person who will resort to untruths when he sees an advantage for himself in doing so. He was cross-examined about his failure to report to the William Booth Institute or the Probation and Parole Service on the day of his release at the expiry of his non-parole period. He said that he did not go the William Booth Institute because his Honour’s order was that he be escorted from the prison to that Institute upon his release.

42 The transcript shows that his Honour said this -

You will be released on parole next week but it will be a condition that Corrective Services will take you to the William Booth Institute…

43 The respondent said that he was standing outside the gaol from 2:30 or 3 o’clock in the afternoon. He was waiting a couple of hours and no one showed up to escort him.

44 He conceded that he was told by the officers at the gaol that no one from the Corrective Services Department would escort him and that he should make his own way to the William Booth Institute. Then his evidence changed and he said that he did not get released until 3:30, and had to be at the William Booth Institute by 4 o’clock. He was asked whether he had not previously said in his evidence that he had been released at 2:30 in the afternoon. He answered that Long Bay prison was separated into a lot of sections, that at 2:30 he was still inside the prison and that that was the time at which he signed the paper work. He left the door (of the section he was then in) at 3 o’clock. He did not get released until 3:30.

45 I think that the respondent was changing his evidence in a manner that he thought would suit his case better.

46 The delay between his Honour’s orders and service of the Notice of Appeal was well over seven months. After such a delay, the Court would normally exercise its discretion not to interfere in a sentence, notwithstanding the merits otherwise of the appeal. This, however, is an extraordinary case. I think that the discretion of the Court should be exercised in favour of interfering with the sentences because of the following circumstances -

(i) The respondent knew on 14 November 2000, eleven days after sentence, that the Director was considering bringing an appeal.


(ii) As I infer, he believed that the Director probably would appeal.

(iii) He avoided service of the Notice of Appeal.

(iv) The delay did not affect the respondent’s ability to deal with the substance of the appeal.

47 The Crown submitted that if it re-sentenced the respondent the Court should fix a non-parole period of less that three quarters of the head sentence for the reasons articulated by his Honour.

48 The evidence about what has happened to the respondent since sentence throws doubt upon his expressed commitment to cure his gambling problem. Although appointments were made for him to see a specialist gambling counsellor at the Australian Arabic Communities Council he failed to keep them. As I have already observed, he withdrew himself from supervision by the Probation and Parole Service. That was what led to the revocation of his parole. Even so, it seems that all his actions have recently been coloured by his fear of prison and there may be some reason to suppose that once he has served a term of custody he will approach the question of his rehabilitation in a more realistic and constructive fashion, especially if, as he now realises, the failure to do so may again result in a revocation of his parole. I would make orders to substitute a head sentence of two years six months equally divided between non-parole and parole periods. I would make it a condition of his parole that he complete the William Booth Institute course.

49 The respondent served sixteen weeks one day of his sentence before being released to parole. He was re-arrested on 14 June 2001 and has been held in custody since that day, effectively serving the sentences imposed by his Honour. The simplest way to deal with the matter seems to be to date the new period of two years six months to commence on the day falling sixteen weeks and one day before 14 June 2001. I propose the following orders -

Allow the appeal.
Quash the sentences imposed on the first, third and fourth counts and in lieu on each such count sentence the respondent to imprisonment for a period of two years six months commencing on 21 February 2001 and expiring on 20 August 2003.
Fix a non-parole period on each sentence of one year three months, expiring on 20 May 2002, on which day the respondent is directed to be released on parole. It will be a condition of parole that he report within 48 hours of his release to the officer in charge of the gambling rehabilitation programme conducted by the Salvation Army at the William Booth Institute, that he then apply forthwith to enter that programme, that he enter it as soon as there is a vacancy for him and that he use his best endeavours to complete the programme.
The reason for fixing a non-parole period which is less than three quarters of the head sentences is the respondent’s need to rehabilitate himself under supervision.