R v Dib - [2003] NSWCCA 117

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v DIB [2003] NSWCCA 117

FILE NUMBER(S):
60026/03

HEARING DATE(S): 6 March 2003

JUDGMENT DATE: 27/05/2003

PARTIES:
Mohamed Dib (Applicant)
Crown (Respondent)

JUDGMENT OF: Hodgson JA Dowd J Barr J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70006/02

LOWER COURT JUDICIAL OFFICER: Hulme J

COUNSEL:
SJ Odgers SC (Applicant)
GIO Rowling (Respondent)

SOLICITORS:
Galloways (Applicant)
SE O'Connor (Respondent)

CATCHWORDS:
CRIMINAL LAW - Appeal against sentence - Plea of guilty - Utilitarian discount - Relevance of circumstance that plea is to lesser charge than that originally brought.

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912

DECISION:
Leave to appeal be granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA 60026/03
HODGSON JA
DOWD J
BARR J
Tuesday 27 May 2003

REGINA V. Mohamed DIB

Judgment

HODGSON JA: I agree with the orders proposed by Dowd J, and generally with his reasons. I also agree with the remarks of Barr J.
In the course of his remarks on sentence, the sentencing judge said this:
38 Although there had been mention during the course of the judgment in R v Thomson and Houlton of situations where the late entry of pleas was or may have been influenced by the attitude of the prosecuting authorities - see [20] and [29], no separate consideration was given to that factor. Where the Crown accepts a plea to a lesser charge in full satisfaction of an indictment including a higher charge, a benefit is necessarily conferred on an offender even without any grant by a court of the normal discount for a plea. When one has regard to the rationale for that discount it does not seem to me that the rules or extent of the discount which apply in other situations should necessarily apply. I do not, of course, suggest that the sentence should reflect any component because the offender might have been guilty of the higher charge. I merely suggest that the interests of the courts do not require that the discount be as great or, at times, that it should exist. After all, the primary function of the punishment is to deal with the offender's criminality.
39 The topic is not one where precise quantification of benefit to the system or even to the particular trial is practical or, in most cases, even possible. Nor is it possible to compare in quantitative terms the saving in resources and cost resulting from a plea with a reduction in sentence measured either in years or percentage. Furthermore, the benefit to the justice system resulting from any plea is not restricted to the particular trial or offender. Some of that benefit lies in the message it sends to other offenders having the choice of pleading guilty or not guilty.
40 I am not persuaded that this was a case where the Crown case was particularly complex albeit there must have been a strong attack on Mr Rossinski's credibility and perhaps the credibility of others. I take the view that, even if their pleas were not associated with the dropping by the Crown of the more serious charges, I would not allow more than a 20% discount for their pleas. In arriving at that conclusion, I am in part influenced by what I see as the appropriate result of the proceedings. Having regard to the magnitude of the Prisoners' criminality their punishment should be no more lenient than it will be. Because I am of the view, arising from the history and timing of events that the prisoners in fact received other benefits from their plea, i.e. that the chance of their being convicted of being accessories to murder was removed, - and certainly, the onus being on the prisoners, I am not persuaded to the contrary - I favour a somewhat lower discount.
In my opinion, the amount of any discount to be allowed by reason of the utilitarian benefit of a plea of guilty should not be reduced on the ground that the plea was offered in association with the abandonment by the Crown of a greater charge; and if in such a case the plea is offered as soon as the Crown indicates willingness to accept a plea to the lesser charge, it should be regarded as being made at the earliest opportunity. To hold otherwise would be inconsistent with the presumption of innocence of the greater charge, which in those circumstances must stand unaffected.
However, the utilitarian discount is a recognition of advantages to the administration of justice that actually flow from a plea of guilty. By reason of statutory provisions applying in New South Wales, in this State it is not given merely on the basis that the offender’s culpability is mitigated by demonstration of willingness to facilitate the course of justice: R v. Sharma (2002) 54 NSWLR 300, distinguishing Cameron v. The Queen (2002) 76 ALJR 382.
If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.
This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender’s fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.
I think the sentencing judge may also have been in error in referring to the strength of the Crown case. That can be relevant to the question of whether a plea of guilty is indicative of remorse or otherwise mitigating of culpability, but it is not relevant to the discount to be given by reason of the advantages actually flowing to the administration of justice.
However, in my opinion, the discount given in this case, namely 16.7%, was entirely appropriate, and for that reason the first ground of appeal fails.
The resulting sentence and non-parole periods were appropriate. The difference between the applicant’s sentence and that of his co-offender was justifiable in that the sentencing judge explicitly found that the applicant had not demonstrated contrition, and also explicitly found, having regard to a favourable pre-sentence report, that Mr. Refai may be able to lead a crime-free life. I am not satisfied that the difference between the two sentences is indicative of error.
DOWD J: This is an application by Mohamed Dib to appeal against the severity of the sentence imposed by Hulme J on 18 December 2002 after the entry of a plea of guilty on 11 September 2002 to a charge of Accessory after the Fact to Malicious Wounding with Intent to do Grievous Bodily Harm, in breach of s33 and s350 of the Crimes Act 1900 for which the maximum penalty is five years imprisonment.
The date of the offence was between 17-19 October 1998. The sentence of imprisonment was imposed of three years and four months with a non-parole period of two years, both to commence on 15 July 2001. The applicant had been arrested on 2 August 2000. Bail was refused. Conditional bail was granted on 11 August 2000 but the applicant was taken into custody on 26 November 2000 for breach of a Community Service Order and has remained in custody since that time. For some months of that time in custody, the applicant was serving sentences for other matters.
Grounds of Appeal
The two grounds of appeal were, first, that the sentencing judge erred in the assessment of the appropriate discount to be applied for the applicant’s plea of guilty and, secondly, that the sentencing judge failed to take into account parity between the applicant and the co-offender.
Summary of the facts on which the charge was based
On Saturday 17 October 1998 the victim Edward Lee travelled with Peter Son, Daniel Son and Michael Rhee at about 7:15pm to Telopea Street, Punchbowl. Daniel Son telephoned the premises that the group were to visit to ascertain the number of the house, the driver having parked the car further up the street. The group alighted and walked towards a group of between seven to ten male persons, one of whom said to Peter Son:
What the fuck are you looking at?
Daniel Son entered the discussion and one of the group of seven to ten, Ahmad Dib, pushed Peter Son in the chest who took a step backwards and struck Ahmad Dib, the brother of the applicant, causing him to fall to the ground unconscious. Peter Son was then attacked by the group of seven to ten. His brother Daniel Son attempted to provide assistance. There was a general fight in which several people were seen to inflict blows, including the victim.
The applicant’s brother, Moustapha Dib went to his house, obtained a knife and stabbed Edward Lee in the back and in the chest. The victim was able to get into the car and the other people from the car extricated themselves from the attack by other members of the group in Telopea Street and went back to the car which drove off. Guns were fired at the vehicle, a bullet lodging in the vehicle’s doorframe.
An eye witness who knew Moustapha Dib said that Moustapha Dib said:
I just clicked.
Lee died as a result of the two deep stab wounds. Shortly after the stabbing Moustapha Dib and the applicant were at premises at Punchbowl and an associate present heard the applicant say:
Don’t worry, it’s done, how are we going to fix it?
One of the co-accused with the applicant, Mr Kanaan, received a telephone call during which he was heard to say, according to the Summary of Facts, “Drama at Telopea Street, someone got knocked”. It was claimed on behalf of Mr Kanaan that the last word used was “knifed”. The Crown Prosecutor indicated that he was content to proceed on that basis. Half an hour later there was another call following which Mr Kanaan, a Mr Rossinski and others left Surry Hills and travelled to Bondi Beach where they met with a number of males including the two Dib brothers and Mr Refai. Mohamad Dib told the group of the incident in Telopea Street. He said there were some Asians there, a fight occurred, and another of his brothers had been knocked to the ground. Upon seeing this, Moustapha Dib ran to a house, grabbed a knife, (returned) and then stabbed one of the Asians.
Mr Kanaan and Mr Rossinski then made a number of telephone calls and there was also discussion about the best way of setting up an alibi. After what would seem to have been some significant consideration in that regard, an idea involving Hamilton Island was abandoned and the discussion turned to the topic of getting the Dibs to Queensland and organising a vehicle and clothes. Mr Rossinski offered suggestions on ways to strengthen this alibi by arranging for friends in Queensland to book a motel room and order food under the Dib’s name and keep the receipt and a decision was made that Mr Refai would drive Moustapha and Mohamed Dib and a fourth person to Queensland in a borrowed vehicle which had Queensland number plates.
At some stage the group left Bondi Beach and went back to Surry Hills. There Mr Kanaan and Rossinski were involved in collecting $1,000 and providing it to Mohamed Dib. Clothes were also obtained and the four persons departed for Queensland.
These last three paragraphs are taken from the Remarks on Sentence of the learned sentencing judge. His Honour noted that there was little evidence to show how Refai, the applicant’s co-accused, became involved and nothing to indicate that he was more than a chauffeur.
On 20 October 2000 a search warrant was executed at Telopea Street where the applicant told a police officer that he, the applicant, and Moustapha had left for Queensland at about 6pm the previous Friday. Mobile telephone records contradicted this assertion. His Honour found that a great deal of time was expended in checking out the alibi.
The applicant and his co-accused, Kanaan and Refai, were committed for trial on 17 December 2000 on a number of charges, one of which was that of being an Accessory after the Fact to Murder. They were arraigned on 1 February 2001. The trial of the three charged with Accessory after the Fact to Murder and that of Moustapha were listed to commence on 9 September 2002. There were applications to defer, but the matter was listed for hearing and the jury was empanelled on 11 September 2002.
On 11 September the Crown advised that it wished to present an indictment against those three charged with Accessory after the Fact to Murder with the lesser offence of Accessory after the Fact to the Malicious Wounding of Edward Lee by Moustapha Dib with Intent to do Grievous Bodily Harm. All three pleaded not guilty to the more serious charge but guilty to the lesser charge, the Crown accepting those pleas of guilty to the lesser charge in full satisfaction of the indictment.
The trial of Moustapha Dib was then twice commenced but did not proceed to verdict. Since then Moustapha Dib has pleaded guilty to manslaughter but had not been sentenced at the time of the sentencing of the applicant.
Ground 1 - That the Sentencing Judge erred in the assessment of the appropriate discount for the plea of guilty
It was submitted on behalf of the applicant that the discount which was eight months on a starting point of four years was 16.7%, it being conceded that such a discount was within the range indicated in R v Thomson and Houlten (2000) 49 NSWLR 383.
The applicant’s submission was that the discretion of the learned sentencing judge miscarried in his approach to the timing of the plea on the basis that the original charge carried a maximum penalty of twenty five years and it was only on 11 September that the Crown charged the alternative to which the applicant immediately entered a plea and this was at the first opportunity. I agree with that submission.
Hulme J said that the discount for a plea of guilty would not be as great in a case where it involves a plea to a lesser charge as to where it involves a plea to all charges brought by the Crown and that he was, therefore, reducing the discount because of this fact and the benefits that the applicant’s co-offenders received from the plea, that is, the removal of the chance of their being convicted of the more serious charge.
I do not agree that the discount should be reduced by reason of is a benefit in the acceptance of a plea to a lesser charge. A person in the position of the applicant comes with a presumption of innocence and no assumptions can be made as to the basis for the acceptance of the plea. The plea should be treated as one made at the earliest opportunity (Cameron v R (2002) 76 ALJR 382, R v Atkinson [2001] NSWCCA 135).
The reference by his Honour to the Crown case and any suggestion of examination of the strength of the case is inappropriate (R v Lo [2001] NSWCCA 271, R v Gorgievski [2002] NSWCCA 45).
It was submitted by the Crown, and I agree with this submission, that his Honour was not bound to grant a discount of 25% that being the maximum indicated discount (R v Thomson supra). It was submitted by the Crown that it was open to his Honour to take into account that the plea was to an alternative to a more serious charge.
As I have indicated, the reasoning of his Honour was, in my view, in error. The plea was clearly entered at the first opportunity. I consider, however, that the plea was entered on a very serious charge and without any indication of remorse, as the applicant did not adduce evidence which so indicated, and the discount which his Honour did grant was not only within range of what his Honour was entitled to provide but was appropriate in the circumstances.
In this light, not only the head sentence but a sentence with a two year non-parole period was, in the circumstances of such a serous offence, appropriate.
I am not, therefore, of the view that some sentence other than what was imposed, should have been passed, and thus this ground fails.
Ground 2 – That the applicant has a legitimate grievance arising from the disparity between the sentence imposed on him and that imposed on the co-offender Refai
The co-accused, Refai, received a sentence of two years which was wholly suspended.
The applicant contends that Hulme J regarded the objective seriousness of the offence of the applicant and Refai as equal, although concedes that his Honour indicated there is little evidence that Refai was more than a chauffeur although his Honour later said that the carrying out of that plan persisted over a period of days.
It is also put on behalf of the applicant that the moral turpitude of the applicant was less because of his relationship to his brother, relying on R v Farroukh (NSWCCA, unreported, 29 March 1996) where Gleeson CJ held, with which judgment Hidden J and I concurred:
There is, however, a wide variation in the possible degrees of moral culpability of persons convicted of this offence. The present was not a case, as sometimes occurs, where an accessory after the fact has been personally involved in a criminal enterprise, although the involvement falls short of participation as a principal, or where an accessory is associated with criminal elements and has become accessory by reason of that association. …
The learned sentencing judge noted that the applicant was pulling his brother away from Mr Lee. It is put that Refai had no such fraternal attachment. Hulme J also submitted that there was not much to be said for the applicant in terms of mitigation and, in contrast, said that personal deterrents should be an important factor for Refai. It was submitted that the learned sentencing judge considered Refai’s prospects of rehabilitation, although not high, were better than those of the applicant. It was submitted that Hulme J related his finding that the applicant lacked contrition as a significant part of the offence the applicant committed.
The applicant, in short, submitted there was no basis for a different approach between Refai and the applicant. They were of similar age and similar criminal record.
The applicant conceded that Refai had a positive pre-sentence report based on conduct while on bail, but submitted that the applicant was deprived of such an opportunity by being held on remand for more than five hundred days prior to sentence.
The applicant’s case is that there is a justifiable sense of grievance at the disparity between the two sentences particularly as the time served by the applicant was harsh because he was on remand, as the judge found when finding “special circumstances” for reducing the non-parole period.
The respondent submitted that any disparity was within his Honour’s discretion and it is not shown that his Honour was in error in failing to reduce the sentence because of the harsh conditions.
This court’s power is set out in Lowe v The Queen (1994) 154 CLR 601. In my view, it has not been shown that justice has not been done. Any reduction of the presently imposed sentence would be manifestly inadequate for the offence. There is nothing shown by the applicant to warrant a lesser sentence in law: s6 (3) of the Criminal Appeal Act 1912.
Notwithstanding evidence given before this court by the applicant that he had thought his plea of guilty had expressed his remorse, it was clear that his Honour, at the time of passing sentence, took into account a serious offence which, on the evidence available to him, indicated a lack of remorse or contrition.
The much more favourable pre-sentence report of Refai, which partly resulted from his performance on bail is, in a sense, unfair but it is nonetheless a factor which the judge was entitled to take into account.
The improved prospect of rehabilitation is a factor which, in part, explains the difference between the two sentences.

Additionally, a suspended sentence is, nonetheless, a serious sentence and may have serious consequences for a person if a further offence occurs.
In my view, no disparity has been shown other than what is within the discretionary powers of the learned sentencing judge and this ground of appeal fails.
I would, therefore, propose the following orders:
1. That leave to appeal be granted: and
2. That the appeal be dismissed.
BARR J: I agree generally, for the reasons given by Dowd J, that leave to appeal should be granted and that the appeal should be dismissed. I agree with the remarks of Hodgson JA.
I wish to add some remarks about the proper approach to appeals against the asserted severity of sentences based on errors identified in the remarks of sentencing judges.
Sentencing is an intuitive process in which the judge identifies, considers and weighs a large number of disparate features, some of which make for a more severe sentence and some for a less. It is ordinarily appropriate for the judge to make known such of the features as have affected the resulting sentence and to say how important the judge thinks they are. But that is not to say that a judge can or should try to give a precise value to such features so as to synthesise a sentence as though performing a mathematical exercise.
The value to be attributed to a particular feature of a case cannot be assessed without having in mind all the other features in the case, favourable and unfavourable. Sometimes a preponderance of favourable features will result in any one of them receiving less weight than it might have received in the absence of the other favourable features. An example is the credit that must be given to an offender who has provided or undertaken to provide assistance to the authorities. The legislation provides, as the common law before it provided, that there is a limit to the value that may be given to such a combination of features. The resulting penalty may not be disproportionate to the nature and circumstances of the offence: Crimes (Sentencing Procedure) Act s 23(3); R v Cartwright (1989) 17 NSWLR 243.
In a similar way different features which each entitle an offender to a less severe sentence may have overlapping effects, with the result that the appropriate total allowance will be less than the sum of the parts: R v Gallagher (1991) 23 NSWLR 220 per Gleeson CJ at 230-234.
Even though a sentencing judge is encouraged to quantify the discount allowed for the utilitarian value of a plea of guilty, the features identified by Gleeson CJ remain and sentencing remains an intuitive process, with the result that there may be an element of arbitrariness in a sentencing judge’s quantification of the discount allocated to that feature and/or in the impact that that feature has on the result. It follows that if on appeal an offender demonstrates that a sentencing judge has made an error of a few percentage points in a stated discount the Court may not regard its power to re-sentence as enlivened. The answer to that question may depend on whether a just result has been achieved overall in the sentence appealed from.
In my opinion the sentence imposed by his Honour was appropriate. I am of the view that no less severe sentence is warranted in law: Criminal Appeal Act s 6(3).

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LAST UPDATED: 27/05/2003