R v Barakat

[2001] NSWCCA 366

CITATION:	R v Barakat [2001] NSWCCA 366
FILE NUMBER(S):	CCA 60441/00
HEARING DATE(S):	14/9/01
JUDGMENT DATE:	14 September 2001
PARTIES :	Regina Kassem Barakat
JUDGMENT OF:	Sully J at 23; Carruthers AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0223
LOWER COURT JUDICIAL OFFICER :	Davidson DCJ

COUNSEL :	G E Smith (Crown) C B Craigie (Applicant)
SOLICITORS:	S E O'Connor (Crown) D J Humphreys (Applicant)
CATCHWORDS:	Sentencing - appeal against severity - break, enter and steal - whether subjective circumstances properly considered by trial judge - reduced non-parole period reflected applicant's desire to return to Lebanon - appeal dismissed.
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912
DECISION:	Leave to appeal granted. Appeal dismissed.

- 7 -IN THE COURT OF

CRIMINAL APPEAL

60441/00

SULLY J
CARRUTHERS AJ
Friday 14 September 2001

Regina v Kassem Barakat

JUDGMENT

1    CARRUTHERS AJ: Kassem Barakat seeks leave to appeal against sentences imposed upon him by his Honour Judge Davidson QC in the Sydney District Court on 7 July 2000. The applicant had earlier pleaded guilty on 4 April 2000 to four counts of break, enter and steal, contrary to s 112(1) of the Crimes Act 1900. This offence carries a maximum penalty of 14 years imprisonment.

2    The offences were committed in a spate of criminal activity on 10, 12, 13 and 14 October 1999 respectively. In each case, property was stolen by the applicant, who either forced a lock or smashed a window to gain entry to a private dwelling home. The value of the property stolen, viewed objectively, was in each case not insignificant. The sentimental value, of course, is something about which we know not. As his Honour pointed out, when one looks at the subject addresses, it is unlikely that the persons who owned that property were particularly affluent. None of the property was recovered.

3    Before I turn to the sentences which his Honour imposed on 7 July 2000, it is necessary to say something of the background to the matter. The applicant was born in Lebanon on 30 May 1966 and came to Australia in 1987. Apart from his sister, who lives in Sydney, the remainder of his family continues to live in the Lebanon. His conduct in Australia has been so deplorable that his family have indicated that they are ashamed of him.

4    The applicant wishes to return to Lebanon but, having obtained Australian citizenship, his prospects in that regard, if one were to look at deportation, are not good. The practice of the Commonwealth Government is to accept migrants who have become naturalised Australians and allow them to remain here for good or for evil.

5    The applicant has done nothing to justify the benefits associated with his attaining Australian citizenship. He has a bad criminal record and an unsatisfactory work history. It was only six years after reaching Australia that he was before a Local Court, then charged with malicious damage by fire. Since then, there has been a succession of appearances in which the offence of break, enter and steal predominates.

6    To be fair to him, there is evidence of emotional instability and depression, which may have initiated his habit of inhaling butane gas, which apparently gives him a sense of temporary euphoria. He has no history of psychiatric illness. He does have a history of addictive gambling.

7    Going back to his record, on 3 February 1998 at Campbelltown District Court, the applicant was dealt with on a number of break, enter and steal matters. On that occasion, he was sentenced to a minimum term of eighteen months imprisonment, with an additional term of two and a half years. He was released to parole at the expiration of the minimum term, but continued to commit offences.

8    On 19 October 1999 the applicant was arrested on charges of carrying a cutting weapon and maliciously destroying property and entering enclosed land. He came before the Sutherland Local Court on 21 October 1999 and, on each charge, was sentenced to one month's imprisonment to commence on 19 October 1999. I interpolate that he has been continually in custody since that date.

9    On 18 November 1999 the New South Wales Parole Board dealt with him for a breach of the parole granted following the sentence at the Campbelltown District Court, and he was ordered to serve the balance of parole, being one year, ten months and one day, to commence on 19 October 1999 and to expire on 19 August 2001.

10    It was not until 25 January 2000, when he was still serving the balance of parole, that he was arrested in relation to the subject offences, and bail was refused. So that when he came before Judge Davidson on 7 July 2000, the applicant was still serving the breach of parole which was not due to expire until 19 August 2001.

11    His Honour picked up that date as follows. With regard to counts 1 and 2, his Honour sentenced the applicant to imprisonment for a period of eighteen months. In each case, a non-parole period of thirteen months and two weeks was fixed to commence on 7 July 2000 and to expire on 20 August 2001. That was, it will be recalled, one day after the expiration of the order in relation to the breach of parole. Thus, between 7 July and 20 August, the applicant was concurrently serving the breach of parole with the non-parole period fixed in relation to the first and second counts under consideration here.

12    In relation to counts 3 and 4, his Honour sentenced the applicant to imprisonment for a period of eighteen months by way of a head sentence and, in each case, fixed a non-parole period of thirteen months and two weeks to commence on 21 August 2001 and to expire on 4 October 2002. Thus, the applicant is due to be released to parole on 4 October 2002.

13    The relationship between the non-parole period and the head sentences in relation to counts 3 and 4 is consistent with what I shall call the nominal ratio. His Honour did not address special circumstances. It would appear that his Honour was influenced, in the very specific way that he structured the sentence, by the asserted desire of the applicant to return to his family in the Lebanon. His Honour said, during remarks on sentence, referring to evidence in a psychological report by Miss Robilliard:

"It is to your lack of support from members of your family and your relative isolation in this community to which she attributes your substance dependence and your addiction to gambling. She states that you have a desire to return to your family in Lebanon where I have no doubt you would feel more secure and far less isolated. It seems however that you are unlikely to be and indeed it is quite clear that you will not be deported for your criminal offences since before you accumulated the record to which I have referred you were granted the privilege of citizenship in this country. Your capacity therefore to return to Lebanon depends entirely on your own efforts.”

14    The bottom line, if I could use that expression, of his Honour's carefully structured sentencing regime is that for these 4 serious break, enter and steal offences the applicant will serve only 13 months and two weeks. This leaves a parole period of 4 months which, as Mr Craigie on behalf of the applicant has pointed out, is roughly in the ratio of 1:7 or 1:8 by reference to the overall period of time which the applicant will spend in custody since 19 October 1999.

15    This, Mr Craigie contends, demonstrates an error on his Honour's part in not finding special circumstances, because there is much authority from this Court that an accumulation of sentences may well constitute special circumstances. Indeed, they very often do.

16    A number of other arguments were put by Mr Craigie in his careful written and oral submissions. For example, he has contended that the applicant received insufficient consideration by way of a discount for his pleas of guilty, and other arguments are adduced. Although it is stating the obvious, this Court has said in countless cases that the offence of break, enter and steal from private dwelling homes is a serious offence, demanding condign punishment.

17    What happened in the instant case is not, however, condign punishment. It was obviously a sentence, as I have said, specifically structured to accommodate the special circumstances of the applicant and, I am inclined to accept, to accommodate his desire to return to Lebanon as soon as he is free to do so. His Honour obviously therefore thought it was inappropriate to provide for a greater parole period than that which he did.

18    The difficulty which this Court is faced with now, in the context of the arguments addressed to it by Mr Craigie, is that if it were to accede to those submissions and adjust the sentences imposed by his Honour, it would necessarily involve a reduction in the non-parole period for counts 3 and 4. The effect of this would be that the non-parole period would be reduced to a sentence which was wholly disproportionate to the level of criminality involved in the subject offences, giving full allowance for the subjective factors.

19 The Legislature has provided for this situation, as Sully J pointed out in the earlier case, by the provisions of s 6 (3) of the Criminal Appeal Act 1912, which provides:

"On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

20    It must be recalled that the community, through the Crown in this Court, has rights as does an accused person at first instance, and an applicant on this appeal. There is a public interest involved in these matters which must be respected.

21    I am quite unable to conclude in the circumstances of this case that a less severe sentence is warranted in law. As I have already indicated, if the Court were to accede to the requests of the applicant here, there would be a miscarriage of justice.

22    Accordingly, I would propose that, in the circumstances, the application for leave to appeal should be granted, but that the appeal should be dismissed.

23    SULLY J: I entirely agree and the orders will be, therefore, as proposed by his Honour.

oOo