R v Alkanaan

[2009] NSWCCA 44

New South Wales
Court of Criminal Appeal

CITATION:	R v Alkanaan [2009] NSWCCA 44 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	25 February 2009
JUDGMENT OF:	Grove J at 1; Buddin J at 26; Price J at 27
EX TEMPORE JUDGMENT DATE:	25 February 2009
DECISION:	Crown appeal allowed. Respondent resentenced.
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Sentence - Inadequacy - Totality - Cumulation too little to reflect seriousness
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 (2002) 50 NSWLR 146
PARTIES:	REGINA - Appellant Alaa ALKANAAN - Respondent
FILE NUMBER(S):	CCA 2008/0709
COUNSEL:	J Dwyer - Appellant R Burgess - Respondent
SOLICITORS:	Solicitor for Public Prosecutions - Appellant Legal Aid Commission - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	08/21/0030
LOWER COURT JUDICIAL OFFICER:	Ellis DCJ
LOWER COURT DATE OF DECISION:	26 September 2008

CCA 2008/0709

GROVE J
BUDDIN J
PRICE J

25 February 2009

R v Alaa ALKANAAN

Judgment

1 GROVE J: This is a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 asserting the manifest inadequacy of sentence imposed on the respondent at Parramatta District Court. The respondent had been committed for trial from Burwood Local Court but on 25 July 2008 at a callover he pleaded guilty to a count of aggravated car jacking (count 1), a count of attempted aggravated car jacking (count 2), each of these being charged contrary to s 154C (2) of the Crimes Act 1900 and a count of maliciously discharging a loaded firearm with intent to cause grievous bodily harm (count 4 which was charged in the alternative to a count numbered 3) an offence contrary to s 33A (1) (as then applicable) of that Act. The maximum prescribed penalty for offence against either of these provisions is 14 years imprisonment. The circumstances of aggravation specified in count 1 were that the respondent was armed with an offensive weapon and was in company. The circumstance of aggravation in count 2 was that he was armed with an offensive weapon.

2 The learned sentencing judge was asked to take into account on a Form 1 a further offence of attempted aggravated car jacking; again the circumstances of aggravation were that he was armed with an offensive weapon and in company. Ellis DCJ sentenced the respondent, on count 1 and taking into account the offence on Form 1, to imprisonment consisting of a non-parole period of 4 years commencing on 1 May 2007 and expiring on 30 April 2011 with a balance term of 2 years; on count 2 to imprisonment consisting of a non-parole period of 1 year 9 months commencing on 1 February 2010 and expiring on 31 October 2011 with a balance term of 1 year 6 months and on count 4 to imprisonment consisting of a non-parole period of 12 months commencing on 1 May 2011 and expiring on 30 April 2012 with a balance term of 3 years commencing on 1 May 2012.

3 The effective total sentence amounted to imprisonment for 8 years with a non-parole period of 5 years.

4 The respondent has been in continuous custody since his arrest on 1 May 2007. The offence charged in count 1 took place on 23 April 2006 as did the offence taken into account on the Form 1. The offences charged in counts 2 and 4 occurred on 26 August 2006.

5 Subsequent to those dates, on 30 September 2006 the respondent was arrested at Belmore and charged with possessing an unauthorized firearm and discharging a firearm in or near a public place. He was convicted of those offences at Burwood Local Court on 26 April 2007 and, for the first offence he was fined $500 and ordered to enter into a recognizance with conditions to be of good behaviour for 18 months and, for the second offence, to perform 75 hours community service.

6 Shortly after those proceedings the respondent was taken into custody in respect of the current matters when he attended Bankstown Police Station on 1 May 2007.

7 On 20 August 2007 the respondent again appeared at Burwood Local Court where, upon conviction for driving in a manner dangerous, he was sentenced to imprisonment for a fixed term of 2 months to commence on 1 May 2007 and expire on 30 June 2007. On 13 March 2008 he was called up for breach of the recognizance entered on 26 April 2007 and for the offence involved he was sentenced to imprisonment for a fixed term of 3 months commencing on 8 January 2008. It follows that these impositions of 2 months and 3 months imprisonment respectively were served wholly concurrently with the sentence on count 1 later imposed in the District Court.

8 An agreed statement of facts signed by the respondent and by the solicitor representing the Director of Public Prosecutions, was tendered. A brief summary can be extracted therefrom. Chronologically the first offence was that taken into account on the Form 1.

9 At about 10 am on Wednesday 23 August 2006 Zena Vasiliou went to place some shopping in the boot of her car which was parked at the Roselands Centre. Her vehicle was a Subaru WRX. She saw the respondent and another male approaching her vehicle and entered the passenger’s seat. As she tried to close the door the respondent took hold of it in order to prevent it being closed but Ms Vasiliou pulled hard and managed to close the door and she then applied the car locks. The respondent went to the driver’s side window and was tapping on it with a pistol. The other male was standing next to him. Ms Vasiliou got into the driver’s seat, started the car and quickly drove away. She saw the respondent waving his pistol.

10 Count 1 arose out of events at about 10.30 am on the same morning. Mr Majarres took his Ford Territory Ghia to a car wash in Belmore where he left it for attention. The car was washed and it was being dried by a staff member Mr Sayed. The respondent and another male approached the vehicle and the latter said to Mr Sayed, “If you don’t get out of the car I’ll blow your head off.” The manager approached to see what was happening and the respondent produced a handgun and pointed it at him with his finger on the trigger. He said to the manager, “Get the fuck out of here.” The manager and Mr Sayed moved away. The respondent entered the passenger’s seat and his accomplice got into the driver’s seat and drove away. As they were leaving the respondent pointed the firearm out of the passenger window and waved it at a staff member.

11 Counts 2 and 4 arose out of events three days later on 26 August 2006. At about 8.10 pm Mr Eter was driving his Subaru WRX along the Hume Highway at Bankstown. This vehicle incidentally was similar to that of Ms Vasiliou who had been accosted at Roselands. Mr Eter stopped at a red traffic control light. While he was there the Ford Territory which had been taken from the car wash three days previously, pulled up next to him. The respondent got out of that vehicle and walked around and opened Mr Eter’s driver’s door. The respondent was holding a firearm and told Mr Eter to get out of the car. Mr Eter accelerated away and the respondent discharged the firearm up to ten times in the direction of Mr Eter’s vehicle. One of the projectiles fired by the respondent struck Mr Eter in the back in about the shoulder area.

12 The respondent returned to the Ford vehicle and entered the passenger’s seat and it was driven away by a second male who was, at the time, wearing a facial disguise. Mr Eter contacted police and was conveyed to Liverpool Hospital where he was treated. A bullet was extracted and he was found to have sustained a superficial gunshot wound near his right shoulder.

13 Later that night police sighted the Ford Territory and a pursuit took place but police lost sight of it. A short time later police found the vehicle abandoned and gutted by fire.

14 The Crown submissions can be summarized as follows:

1. The sentence on count 1 failed to reflect the objective seriousness of the offence and to recognize that factor in the taking into account the offence on Form 1.

2. That, although totality is relevant, the service of the entire sentences of 2 and 3 months abovementioned for unrelated offences concurrently with the sentence on count 1 represented a miscarriage of discretion.

3. The effect of the commencement date on count 2 which added only 6 months to the overall non-parole period resulted in an inadequate reflection of the seriousness of that offence.

4. The sentence and non-parole period on count 4 were manifestly inadequate in assessment and by adding only a further 6 months to the overall non-parole period were inadequate to reflect the seriousness of that offence, and

5. The inadequacy of cumulation led to a failure to reflect the respondent’s total criminality.

15 Count 1, being a completed offence in distinction from an attempt, had a standard non-parole period of 5 years attached to it. His Honour assessed the count 1 offence as being in the mid range of criminality for such an offence. That assessment was not challenged and must be accepted for present purposes. His finding that there should be a discount of 20 percent for the utilitarian value of the plea of guilty entered before the setting of a trial date was likewise, not challenged.

16 In the course of his remarks on sentence his Honour explicitly recognized, at least by recitation of statutory expression of the purposes of sentencing, the aims which sentence had to achieve. A submission that he failed to refer to general deterrence must be rejected as it overlooked an explicit reference by his Honour. Save that submission it was not contended that his Honour failed to heed any significant element of assessment. A sentence, after discount for the plea of guilty, which is required to use a standard non-parole period of 5 years as a guidepost and which imposes a non-parole period of 4 years is not suggestive of error. It is less obvious that the assessment reflects the seriousness of a Form 1 offence as it should have: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 (2002) 50 NSWLR 146. Count 1 with the Form 1 offence looked at in isolation, although markedly lenient in the result would not attract the intervention of this Court to increase the sentence. However the criminality involved remains relevant to an examination of the issue of total criminality (ameliorated by factors favourable to the respondent) and the adequacy of the total term to reflect it. The same comment is applicable to the concurrent service of the short sentences for unrelated offences between arrest and the current impositions.

17 As the summary of facts demonstrates, counts 2 and 4 are related. The objective facts in relation to the former include the brandishing of a loaded pistol at the motorist. The latter offence involved the discharge of up to ten rounds from that pistol, one of which struck the victim. It is true that his Honour found that the injury sustained was minor but the seriousness of firing a pistol at a person fleeing from a recognized threat posed by an offender who is discharging multiple shots in his direction is scarcely a minor matter. The fact that the medical assessment of the bullet wound was minor is hardly a yardstick for the measurement of the criminality which has been exhibited. The discharge of shots took place upon a public highway and that would have caused obvious risks to others. Risks would also have been inherent in the unsuccessful police pursuit.

18 His Honour made favourable findings concerning the respondent. He noted that he was nineteen years of age when the offences occurred. He had been in Australia for about ten years, having come from Iraq where his Honour found that he had been raised in “a culture where guns were everyday occurrences.” He had not responded to education and had a long history starting from the age of thirteen involving drug abuse. His Honour accepted a psychological opinion which showed the respondent had very low cognitive ability. He had not had a stable upbringing and his parents had separated following violence perpetrated upon his mother by his father. His mother had remained supportive and his Honour noted her attendance with him at Court. Since his incarceration the respondent had shown good response to drug and alcohol counselling and his Honour accepted that he now recognized the shame which he had brought upon his family and he regarded the pleas of guilty as showing some remorse. His conduct in custody has been at least promising.

19 No specific complaint is made by the Crown about the assessment of the length of sentence on count 2. It is complained that the sentence on count 4 is manifestly inadequate. It can be deduced that his Honour’s starting point, before discount for the plea of guilty was 5 years imprisonment. Against a maximum 14 years and given the favourable matters which he found and which have been briefly sketched above a sentence on count 4 of 4 years, viewed in isolation, although again markedly lenient can be regarded as lying within the range of discretion.

20 It was stated in written submissions on behalf of the respondent that the ultimate question is whether a total effective sentence of 8 years with a non-parole period of 5 years is manifestly inadequate. In my view the answer to that inquiry should be in the affirmative.

21 Recognizing, as above stated, the considerable leniency in the assessments on counts 1 and 4 for the reasons above set out, I would conclude that the practical effect of extending the non-parole period for a total of 12 months for offences of the level of seriousness of the charges in counts 2 and 4 represents a manifest failure to impose adequate sentence.

22 The Crown appeal should be allowed and the Court should proceed to resentence. Such resentence must be approached with the restraint applicable after a successful Crown appeal and give account to what is commonly referred to as double jeopardy.

23 For the reasons above stated I would not intervene to vary the individual sentences assessed by his Honour, but I would vary the orders as to cumulation so as to create an adequate reflection of totality of criminality. In so doing I would exercise the restraint above noted. Full effect should be given to matters favourable to the respondent found by his Honour including his finding as to special circumstances. The orders which I propose will result in a proportion between non-parole period and balance term which is different from that reached by his Honour but by maintaining a potential parole period during a balance term of 3 years it remains the case that the balance term exceeds one-third of the non-parole period. Three years is an appropriate period of potential supervision to achieve the hoped-for progress to rehabilitation.

24 In order to achieve clarity, although the terms are not to be varied, it would be convenient to reimpose the sentences and ancillary orders in their entirety.

25 I propose the following orders:

1. Crown appeal against sentence allowed.
2. Sentences imposed in the District Court quashed.
3. In lieu thereof the respondent sentenced as follows:
(a) On count 1, taking into account the matter on Form 1, to imprisonment consisting of a non-parole period of 4 years commencing on 1 May 2007 and expiring on 30 April 2011 with a balance term of 2 years commencing on 1 May 2011,
(b) On count 2, to imprisonment consisting of a non-parole period of 1 year and 9 months to commence on 1 July 2010 and expire on 30 April 2012 with a balance term of 1 year 6 months commencing on 1 May 2012.
(c) On count 4, to imprisonment consisting of a non-parole period of 12 months commencing on 1 May 2012 and expiring on 30 April 2013 with a balance term of 3 years commencing on 1 May 2013.

4. The earliest date of eligibility for parole specified is 30 April 2013.

26 BUDDIN J: I agree.

27 PRICE J: I agree.

28 GROVE J: The orders of the Court therefore, will be as I have proposed. The effect of it, as you would appreciate, is to extend the non-parole period by twelve months.

29 Since publication of the foregoing, attention has been drawn to the error in the calculation of dates in relation to count 2 in par 3 (b) within par 25 above. This will have a consequential effect on the commencement date of the sentence on count 4 and the earliest date of eligibility for parole.

Pars 3 (b) and (c) and 4 within par 25 are amended to order as follows

(b) On count 2, to imprisonment consisting of a non parole period of 1 year and 9 months to commence on 1 July 2010 and expire on 31 March 2012, with a balance of term of 1 year 6 months, commencing on 1 April 2012.

(c) On count 4, to imprisonment consisting of a non parole period of 12 months commencing on 1 April 2012 and expiring on 31 March 2013 with a balance of term of 3 years commencing on 1 April 2013.

4. The earliest date of eligibility for parole specified as 31 March 2013.

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10/06/2011 - New paragraph added - Paragraph(s) 29