R v Bazzi

[2006] NSWDC 121

CITATION:	R v Bazzi [2006] NSWDC 121
JUDGMENT DATE:	24 November 2006
JUDGMENT OF:	Williams DCJ at 1
DECISION:	1. She is convicted in respect of each offence on the indictment.; 2. In regard to each 8 Break Enter and Steal offences, she is sentenced to a minimum term of 4½ years imprisonment with a Total Term of 6½ years in each case. Each sentence is to date from the 27th June 2005 so that the earliest date for her release on parole will be the 26th December 2009.; 3. In respect of each Stealing offence she is sentenced to 18 months imprisonment by way of a fixed term. I decline to set a non-parole period having regard to the non-parole period set in respect to the Break and Enter offences. Each of these sentences will also start from the 27th June 2005 and expire on the 26th December 2006.; 4. In respect to each receiving offence and the disposing offence she is sentenced to 12 months by way of a fixed term of imprisonment which to date from the 27th June 2005 and which has thus expired on the 26th June 2006.; I take into account the Form 1 matters on each of those counts of the indictment that they have been allocated to in the agreed statement of facts.
CATCHWORDS:	Sentence - Multiple offences of BE&S and other offences - relevance of Pearces case
CASES CITED:	R-v- Pearce (1998) 194 CLR 610 Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 [2002] NSWCCA 518)
PARTIES:	Regina Rania Bazzi
FILE NUMBER(S):	06/11/0354 ; 06/11/0383
COUNSEL:	Crown: Mr J Henderson Defence: Mr A Barber
SOLICITORS:	Solicitor for Public Prosecutions Legal Aid Commission

JUDGMENT

1 Ms Bazzi, aged 30, has pleaded guilty to an indictment containing 1 Aggravated Break Enter and Steal (in company), 7 Break Enter and Steals, 6 stealing offences, 5 Receiving offences and 1 disposing of stolen property. She also asks to be taken into account on a number of Form One’s 116 other offences consisting of a further 3 Break Enter and Steals, many, many obtain benefit by deceptions, many receiving offences and some stealing and goods in custody offences.

2 She has been in custody since the 27th of June 2005 although not solely referable to these offences as she has been serving a number of six month sentences for Goods In Custody, and obtain benefit by deception.

3 Ms Bazzi’s record is 15 pages long and contains many similar offences. Her record does not entitle her to any consideration of a reduction in penalty. There are 56 pages of facts. The offending took place over 2004/ 2005 to support a drug habit and lifestyle. There is evidence of quite a degree of planning in respect to some offences. The facts are agreed and I don’t propose to try and replicate them in this judgement.

4 Mr Barber who appears for Ms Bazzi suggests that an appropriate penalty would consist of a finding of special circumstances, reducing the ratio of parole period and imprisonment, to 50/50 and that an appropriate parole period would be one of two years, meaning the minimum period she should spend in custody would be a period of two years backdated to the 27th of June 2005.

5 In R-v- Pearce (1998) 194 CLR 610 the majority judgement said that a Judge sentencing an offender for more than one offence, must fix an appropriate sentence for each offence and then consider the question of cumulation or concurrence as well as questions of totality. In that case the court was concerned about the same sentences imposed on two counts that had a degree of commonality about the base facts. The sentences were to be served concurrently. The court felt that such an approach could mask error in that a person may be doubly jeopardised for the one course of offending.

6 The court referred to the fact that the need to ensure proper sentencing on each count was reinforced, when a failure to do so might give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences. They found that the individual sentences imposed on the two counts in question were flawed, in that they doubly punished the offender for a single act. Making them wholly concurrent revealed error, in that in doing so failed to take account of the difference in conduct that was the subject of punishment in each case.

7 Clearly it is wrong to punish an offender twice for conduct that is common to a number of offences. As the Court said, the punishment exacted should reflect what an offender has done. However one needs to look at Pearce having regard to the matters the High Court had before it and their expressed concerns in that particular matter. The offences before me do not have any degree of commonality, neither the 20 on indictment or the 116 on the Form One’s, except in number, so from that point of view there is no issue of Ms Bazzi being doubly punished for any offence or group of offences.

8 These are property offences and whilst there may be similarities in conduct between some of the offences, those similarities are not such as would warrant the particular offence being considered differently in terms of punishment.

9 To literally apply Pearce's case to the situation before me would result in unnecessary and excessive subtleties and refinements of sentence calculation, the fixing of minimum terms and in considering the questions of cumulation and totality - a situation that must and ought be avoided, something the High Court said in Pearce.

10 In addition to the facts, criminal record and custodial record I also have available a Pre-sentence Report dated the 11th of September 2006, a Corrective Services Risk Assessment Report by two psychologists dated 6th November 2006, a psychologists report from Mr John Taylor dated 6th November 2006 and a Momentum report undated. Ms Bazzi gave evidence on oath.

11 Ms Bazzi is the eldest of four children. Her parents separated at age 13/14. After some disruption caused by the break up she left home and school at age 15/16 having reached year 11. She formed a 7-year relationship at 17 with a person who spent periods in gaol and introduced her to drugs and a “fast lifestyle”. She formed another relationship at age 26, which she is still in, although he is currently serving a sentence in Goulburn gaol. She has worked as a strapper, groom, animal attendant and trainer, an area she wishes to return to on release.

12 She has been a user of alcohol, cannabis, LSD, amphetamines, heroin and cocaine. Since being in custody in May 2005 she has been on the methadone programme ceasing in May 2006.

13 She will live with her mother and sisters on release and wishes to continue her relationship with her current partner. She maintains she will not return to drugs. There have been quite a number of disciplinary offences since being in custody including failure to supply urine samples, which she puts down to embarrassment at having to urinate in front of others. She also claims to have a gambling problem but has not sought intervention in that regard.

14 The Pre-sentence Report assessed her as suitable for a medium to high level of intervention to assist with grief and loss and drug abuse issues and assessment for gambling intervention.

15 In the Corrective Service Psychological Risk Assessment Report Ms Bazzi indicated that when her partner was put in gaol for driving offences she “lost it” for the first month and commenced to take cocaine about 20 times a day. She stated that she had little recollection of the offences that occurred during this period of time and although she stated that she was sorry for the offences, she took little responsibility as she stated that “it’s a blur and it’s like it never happened.” She says that during the time of a number of the offences she was taking cocaine approximately 20 times a day for 7 to 8 days without sleep and recalls believing that the house was bugged and feeling paranoid.

16 The psychometric testing identified her as being in an extreme state of anxiety. However the reporter felt the clinical picture contradicted her presentation in groups, clinical interviews and intramural behaviour and that therefore any interpretative hypotheses concluded from this result should be done with caution. It was suggested that she needed a medium level of structure supervision and support. Although it’s recorded that there were a number of internal charges since being in custody at Dillwynia, prisoner officers had reported an improvement in her behaviour in recent months. The reporter felt that she displayed little empathy for the victims of her crimes. The reporter said Ms Bazzi claimed that although she felt remorse for her offences, this was limited by her disbelief that she participated in all the offences. This was especially true for the Break and Enter charges. She took little responsibility for the implications of fraud on the victims.

17 In the conclusions and recommendations the following is stated

“ Ms Bazzi is a thirty year old woman who presents with a contradictory clinical presentation. She has a long history of criminal behaviour motivated by the need to finance a chronic drug habit and, as she reports, the drive for material possessions.

Indications are that Ms Bazzi is at significant risk of re-offending in the future.

In order to reduce her risk factors Ms Bazzi may benefit from being involved in a programme to address her drug dependence and her antisocial attitudes, ie. Unwillingness to accept responsibility and lack of victim empathy.”

18 In the report from Mr Taylor much of the background and history are repeated and I don’t see any purpose in going through them again. At paragraph 2.2 he said that “Ms Bazzi’s results indicate that she has unstable personality functioning. She has some antisocial and dependent characteristics in her personality adjustment. She has a substance abuse disorder and is suffering from severe depression”.

19 At paragraph 2.3 he says

“ Her responses on the Beck Depression Inventory-II indicate that she is severely depressed. She has a poor self-concept and very low self-esteem. She directs a good deal of anger intropunitively and in relation to this stated that she dislikes herself, is very critical herself for her weaknesses and faults, has feelings of failures, frequent guilt feelings, suicidal ruminations (but she does not believe that she would act on these), and feelings of not being worthwhile. A good deal the time she feels very unhappy and has become more tearful. She is agitated and irritable. She is also more indecisive and is having problems with her concentration. Sleeping difficulties occur and she has very little energy.”

20 He found that she had no indications of any significant thought content or thought process disturbance, that she was capable of developing significant insights into her functioning, that she had an above average predisposition to engage in substance abuse and that she was experiencing significant problems with regard to her interpersonal relationships. He assessed her as having a moderate risk of recidivism. In conclusion Mr Taylor found that at present she was severely depressed and there are indications that this had been the case for a significantly long period of time. She had a poor self-concept and low self-esteem. She was very vulnerable and had strong dependency needs. It was likely to have been her feelings of vulnerability and her dependency needs which influenced her in becoming involved in two defacto relationships, both of which appear to have been somewhat inappropriate. Her relationships seem to have not only contributed to her substance abuse but also to her criminal offending behaviour.

21 She now regrets her offending behaviour and recognises the inappropriateness of it. She is accepting responsibility for her offences. She is assessed as having a moderate risk of recidivism. If she were able to resolve her substance abuse, overcome her depression, and learn how to develop more stable and appropriate relationships, then her risk of recidivism would be substantially reduced. She was clearly in need of psychiatric or psychological treatment. Her offending behaviour may be seen as being symptomatic of her emotional disturbance at the time.

22 As may be appreciated there is a fairly significant quantitative difference between the report by Mr Taylor and the report from Corrective Services psychologists Ms Edwards and Ms Gehlhaar. In summary it could be said, as was said in the Pre-sentence Report, that Ms Bazzi appears to have had a relatively satisfactory and stable childhood until her parents separated, a fact that seems to have adversely affected her causing her grief and a desire to rebel. That then led to a transient lifestyle, high risk taking behaviour and participation in drug abuse. The inappropriateness of the partners that she has had over the period in question, including her current partner who is also in custody, does not really bode really well for the prospect for her not re-offending in the future. The qualifiers that Mr Taylor puts upon her only having a moderate risk of recidivism are that she resolve her substance abuse, overcome her depression and develop a more stable and appropriate relationship. That, it would seem to me, is a significant series of difficulties for her to overcome, despite her stated intentions.

23 I accept that she does have support within the community. Her sister was at court with her, as would have been her mother if she had been able, and they visit her whilst she is in custody. They have also offered to provide a place for her on her release. She stated in evidence that she would like to have children and that she although it’s been recommended that she take a prescription drug for her depression she has declined because she says she is trying to cope in her life without any sort of drug intervention, either legal or illegal.

24 These are all serious offences both individually and when considered as a period of offending behaviour. Whilst in each case only an individual may have been affected, overall there have been many victims and a considerable amount of property put in jeopardy. It is also apparent from the reports that whilst drugs were a significant issue, Ms Bazzi was also trying to maintain a lifestyle, presumably for herself and her partner. There is one count of Aggravated Break Enter and Steal, which was aggravated because it was committed in company. As such this offence carries a standard non-parole period of 5 years. However the circumstances of that particular case are such that I would not regard it as being qualitatively different to the other like offences. I would therefore find it below the mid-range of objective seriousness even if there had not been a plea of guilty as well. I therefore do not see any reason to particularly distinguish between the penalties in respect of any of the break enter and steal offences. In my view the considerations that governed the decision of the High Court in Pearce’s case and the rationale behind that decision referred to earlier, do not apply to the circumstances of the matters before me.

25 I have been asked to find special circumstances and I am prepared to do that to a limited degree because on her release she does appear to need significant intervention by the appropriate services. Against the consideration of special circumstances for that reason is the fact that the parole period in respect of the proposed sentences in these matters is in itself quite extensive and I doubt whether making the parole period any longer would have a significant additional effect. She has pleaded guilty, there are some prospects of rehabilitation and she has expressed some remorse and contrition. The plea of guilty was not at the earliest opportunity so she is not entitled to the full discount. I also note that some of the victims in her offending were schools and hospitals.

26 The sentences to be imposed also have to reflect the criminality revealed on the various Form Ones, which constitute a total of 116 other offences, the most serious of which are three other break enter and steals. In setting the sentences I have had regard to the Form 1 matters as much and in such way as is permissible at law. (see:- Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 [2002] NSWCCA 518)

27 I make the following orders:-

1. She is convicted in respect of each offence on the indictment.

2. In regard to each 8 Break Enter and Steal offences, she is sentenced to a minimum term of 4½ years imprisonment with a Total Term of 6½ years in each case. Each sentence is to date from the 27th June 2005 so that the earliest date for her release on parole will be the 26th December 2009.

3. In respect of each Stealing offence she is sentenced to 18 months imprisonment by way of a fixed term. I decline to set a non-parole period having regard to the non-parole period set in respect to the Break and Enter offences. Each of these sentences will also start from the 27th June 2005 and expire on the 26th December 2006.

4. In respect to each receiving offence and the disposing offence she is sentenced to 12 months by way of a fixed term of imprisonment which to date from the 27th June 2005 and which has thus expired on the 26th June 2006.

28 I take into account the Form 1 matters on each of those counts of the indictment that they have been allocated to in the agreed statement of facts.