R v Dib, Kanaan and Refai

[2002] NSWSC 1244

CITATION:	R v DIB, KANAAN & REFAI [2002] NSWSC 1244
FILE NUMBER(S):	SC 70201/02; 70006/02; 70200/02
HEARING DATE(S):	9 December 2002
JUDGMENT DATE:	18 December 2002
PARTIES :	Regina Mohamed Dib Michael Kanaan Nawaf Refai
JUDGMENT OF:	Hulme J at 1

COUNSEL :	Crown: P Conlon SC Dib: J Korn Kanaan: A Morison Refai: M Thangaraj
SOLICITORS:	Crown: SE O'Connor Prisoners: TA Murphy
DECISION:	See paragraph 69

- 20 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL DIVISION

HULME J

70201/02
70006/02
70200/02

Wednesday, 18 December 2002


Mohamed DIB, Michael KANAAN, Nawaf REFAI

REMARKS ON SENTENCE

1 HULME J: The prisoners before me were committed for trial on 17 December 2001 on a number of charges, one of which was of being an Accessory after the Fact to Murder. They were arraigned in this Court on 1 February 2002. There is no endorsement on the Court file of what their pleas then were but from the fact that their trial, and that of Moustapha Dib for the principal offence were listed to commence on 9 September last and extend for an estimated 6 weeks, one may infer that they did not indicate any intention to plead guilty.

2 On that day there were applications made to defer the trial of Mr Kanaan because of publicity he had received in consequence of other trials and to separate the trial of the others from his. Those applications I refused. There were some other complications it is unnecessary to detail and the proceedings were stood over, without any further arraignment or empanelling of a jury until Wednesday 11 September.

3 Before proceedings recommenced on the Wednesday, I was informed that the Crown proposed to present an indictment including a lesser charge. Counsel for the 3 prisoners indicated that they wished for some time to consider the situation and discuss it with their clients and when I resumed the Crown presented an indictment charging each of Mohamed Dib and Narwaf Refai with, between about 17 and 19 October 1998, being an accessory after the fact to the murder, by Moustapha Dib, of Edward Lee and, secondly with, between those dates, being an accessory after the fact to the malicious wounding of Edward Lee by Moustapha Dib with intent to do grievous bodily harm. Each of these prisoners pleaded not guilty to the charge of being an accessory after the fact to murder but guilty to the lesser charge. The Crown indicated it would accept those pleas in full satisfaction of the charges against each. Proceedings involving these 2 were stood over to 18 October for sentence.

4 It was indicated that Mr Kanaan wished for more time to consider his position and proceedings were adjourned to the following day. After Mr Kanaan was given a little more time on the Thursday morning, his counsel indicated that he would plead guilty to the alternate count. An indictment in materially the same terms as that against the other prisoners was then presented and he pleaded not guilty to both offences. After further discussion with his legal advisers, he was re-arraigned on the lesser charge and pleaded guilty. His sentencing proceedings also were stood over to 18 October.

5 For completeness I should say that a trial of Moustapha Dib on a charge of murder commenced and was then aborted. A second trial also before me proceeded for some time but the jury were discharged without a verdict. I have been informed that he has since pleaded guilty to manslaughter but has not been sentenced. Whatever may have been the position otherwise, in those circumstances, I do not see Moustapha Dib’s situation as of any present relevance. During the sentencing proceedings involving the prisoners some of the evidence in Moustapha Dib’s trial was tendered but it was submitted that I should take no account otherwise of the evidence in that trial. I have proceeded on that basis.

6 The evidence as to the prisoners’ offences was contained in the main in a Summary of Facts which became Exhibit A. That showed that Moustapha Dib stabbed Edward Lee in the back and in the chest with a knife during the course of an altercation in Telopea St, Punchbowl not long after 7.15pm on 17 October 1998. Edward Lee and his friends then left the scene and drove to Canterbury Hospital.

7 Soon after the stabbing Moustapha and Mohammad Dib attended at some premises a short distance away when there was discussion between a number of persons about what had occurred. Mohamad Dib was heard to say “Don’t worry. It’s done. How are we going to fix it?” Sometime later the two Dib brothers and a third person got into a car and drove off.

8 At some time between 8 and 10 pm Mr Kanaan, then in Surry Hills 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. Accordingly, I will also. 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.

9 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.

10 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.

11 The above account is taken from the Summary of Facts. During the proceedings, issue was taken with the proposition that Mr Kanaan went to Bondi Beach and with whether some of the matters to which I have referred occurred there or at Surry Hills. It was agreed that the location did not matter. It should be noted that there is little evidence as to how Mr Refai became involved and, it was submitted, nothing to indicate he was more than a chauffeur.

12 On 20 October a search warrant was executed at Telopea Street. During that day Mohamed Dib told one police officer that he and his brother had left for Queensland at about 6 pm on the night of the previous Friday. Later he told another police officer that he had plane tickets that proved that he was in Queensland between the Friday and the Monday when he returned.

13 The “Summary of Facts” with which I was supplied showed that the police confirmed with Qantas a flight by 4 persons including the two Messrs Dib from Coolangatta to Sydney on Monday 19 October. The document also indicated that phone records relating to a phone believed to be associated with Mohamed Dib showed a number of phone calls from Roselands, North Bondi, Darlinghurst, Old Sydney Town, Tamworth and Armidale and the Gold Coast between 1926 hours on 17 October and 1654 hours on 18 October.

14 During the course of the proceedings, I asked whether I was to be informed of the impact of the apparent alibi on the police investigation of the attack on Mr Lee. Although both the Crown and counsel for the Accused said that it was irrelevant, I was informed by the Crown Prosecutor that there was a deal of time given to the investigation of the alibi. I was informed also that it was in any event many months after the commission of the offence that the statement of Mr Rossinski was obtained and it was this that also proved the involvement of Mr Moustapha Dib and, I infer, the prisoners. Mr Thangaraj, appearing for Refai, made the point, I think correctly, that quite apart from the alibi, the statement of Mr Rossinski and another informer was necessary for a conviction in any event. Counsel were asked and indicated that there was no objection to my acting on what the Crown had said, though, I infer, without abandoning their objection on relevance grounds.

15 The offence to which the 3 prisoners have pleaded guilty is one which arises under s350 of the Crimes Act which provides that “an accessory after the fact to any other serious indictable offence is liable to imprisonment for 5 years, except where otherwise specifically enacted.” The reference to “other serious indictable offence” takes one back to s349 which provides:-

(1) Every accessory after the fact to murder shall be liable to imprisonment for 25 years.
(2) Every accessory after the fact to the crime of robbery with arms or in company with or more person or persons, or the crime of kidnapping referred to in s86, shall be liable to imprisonment for 14 years.

16 The statutory maximum penalty of 5 years imprisonment is, of course, reserved for what is regarded as falling within the category of a worst case of those contemplated by the section – Veen v R (No.2) (1987-88) 164 CLR 465 at 478. In the case of less serious offences “the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent’s conduct would offend against the legislative objective of suppressing (the conduct contemplated by the section)” - R v Peel (1971) 1 NSWLR 247 at 262.

17 On a scale of objective seriousness the conduct of all three offenders was, in my view, high. Firstly, the offence to which they were accessories was one of the most serious in the Crimes Act. Its terms have only to be stated for that to be apparent and that that is also Parliament’s view is demonstrated by the fact that the offence carries a maximum penalty of 25 years’ imprisonment. Decent civilised society cannot operate in circumstances where its citizens go around deliberately stabbing one another with intent to do grievous bodily harm (or really serious injury). While, of course, the prisoners are not to be punished for Moustapha Dib’s offence, the seriousness of their own offences must be judged in part by the inherent nature of that to which they were accessories.

18 What they sought to do was to create and provide Moustapha Dib with an apparent alibi and thereby to prevent, or at least minimise the prospect of, him being appropriately dealt with. Not for them the interests of the community, or of justice or, perhaps, fairness to the victim: They preferred to help an offender who had departed from decent standards of behaviour.

19 Furthermore, the conduct of all three in planning or plan implementation or both was calculated and deliberate and, at least in the case of Messrs Mohamed Dib and Refai, persisted in over a period of at least days. And what Mr Kanaan’s efforts lacked in duration seems adequately made up in planning and assistance. Although it would seem that Mr Rossinski was also deeply involved in these aspects I do not regard Mr Kanaan’s efforts as subsidiary to his.

20 None of the offenders gave evidence on sentence, nor was there anything in the pre-sentence reports which, even if accepted, provided any reasonable and mitigating explanation for the commission of the offences. One should probably infer that Mr Mohamed Dib was at least in part motivated by the relationship with his brother but in the case of the others there is no explanation suggested by the evidence or otherwise to be inferred which helps them.

21 The conduct of the prisoners was, of course, intended to defeat the interests of justice so far as Mustafa Dib was concerned. It was also calculated to either defeat or at least impede such interests. It was calculated to make the task of investigation of the attack on Mr Lee more difficult and time and resource consuming. That their conduct inspired the expenditure of a deal of time in investigation by the authorities is to my mind an aggravating factor.

22 In that regard, it is appropriate that I say something about the claim that the impact on the authorities is irrelevant. The impact of criminal conduct on victims is often taken into account in a judgment as to the seriousness of an offence. There is no reason in logic why that should not be so in the case of an offence of being an accessory after the fact. It is largely in the interests of the community that the offence exists. The impact on the community, through it law enforcement bodies, is thus relevant. Referring to Winston (1994) 74 A Crim R 312 at 316, Wood CJ at CL thought so in R v Faulkner [2000] NSWSC 944 at [39]. But even if this view be wrong, and I am not entitled to take into account what occurred after the arrival of the offenders and Mr Moustapha Dib in Queensland, as was suggested, or alternatively the completion of the Queensland jaunt, then the scale of conduct against which theirs has to be judged for the purpose of assessing its objective seriousness is also reduced. I am not persuaded that this would reduce the relativity of their conduct by comparison with a worst case, to which the impact of conduct proscribed by s350 would also be irrelevant.

23 Against the above description of what seem to me to be the relevant circumstances, I ask where, on the scale of objective seriousness, of offences under s350, the prisoners’ offences fall. In my view they are no lower than close to the top.

24 I should say that before reaching that conclusion and the sentences to be imposed on the prisoners I have had regard to some authorities to which I was referred and also to many to which I was not. I was also provided with some Judicial Commission statistics for offences against s349 and 350, particularly those relating to accessories after the fact to murder (19 cases) and accessories after the fact to maliciously inflict grievous bodily harm (4 cases). However I should record that the statistics do not seem to pick up all of the cases to which I have had regard which include: R v Hawken (1986) 27 A Crim R 32; R v Farroukh (unreported CCA, 29 March 1996); R v Szkudelski [1999] NSWSC 178; R v Galea [2000] NSWSC 301; R v Hammoud [2000] NSWCCA 540; R v Elsworth [2000] NSWSC 582; R v Leung [2000] NSWSC 824; R v Faulkner [2000] NSWSC 944;

25 I acknowledge that by comparison with some of those decisions my assessment of the gravity of the prisoner’s offences and the penalties I intend to impose are high, perhaps when recognition is given to the difference in the maximum sentences prescribed, very high. Nevertheless, by reference to basic sentencing principles which, if it becomes a choice, I regard it as preferable to use rather than examples in other cases, I am persuaded that my conclusions are correct.

26 Before I turn to the subjective circumstances of each prisoner, there are some other matters to which it is appropriate to refer.

27 During the course of submissions a great deal of emphasis was placed on the fact that the prisoners had pleaded guilty and, so it was said, at or almost at the earliest opportunity. These circumstances, so the submissions ran, “entitled” them to a discount of 25% for the utilitarian value of their pleas. It is accordingly appropriate to reflect on the significance of a plea of guilty.

28 Such a plea is commonly regarded as having significance in 2 ways. (A third, less common way, mentioned in R v Thomson and Houlton (2000) 49 NSWLR 383 at [3] is of no present relevance and may be ignored.) One lies in the capacity a plea of guilty has to be an acknowledgment by an offender of not just legal but also moral responsibility for having offended and an indication of remorse or contrition for his or her conduct. To the extent to which such matters are properly to be inferred from a plea, they are calculated to result in lower punishment, providing as they do some indication that a number of the principal considerations in sentencing, - the need for personal deterrence and rehabilitation, the protection of the community and probably retribution - do not require that the same weight be given to them as they would if the offender were unrepentant.

29 Of course a plea does not necessarily indicate remorse or contrition or, for example, that the need for personal deterrence is less. A plea may be no more than a recognition of the inevitability of conviction and the desire to make the best of a situation recognised to be bad. Thus it is probably easier to draw an inference of remorse and contrition when a plea is entered at an early stage, for example when an offender is first charged, than it is once the offender becomes aware that the case against him is strong. And particularly where a plea is associated with a willingness on the part of the Crown to abandon a more serious charge, the appropriate inference may be that the plea is nothing more than the price paid for that benefit.

30 It is also appropriate to point out that the significance of a plea, whether in a particular case remorse or contrition or the other matters to which I have referred exist, and whether they are to be inferred from the plea or the plea and such other evidence as there is bearing on the topics, are issues no different in kind from any other fact finding which judicial officers are required to undertake. Elementary rules of logic and legal reasoning do not disappear just because the particular proceedings require judges to impose sentences. And it is as well to remember the words of Dixon CJ in Holloway v McFeeters (1956) 94 CLR 470 at 477 that, “an inference may be made only as the most probable deduction from the established facts, (and) it must at least be a deduction which may reasonably be drawn from them.” Often some of the matters referred to in the immediately preceding paragraph, particularly when there is little or no other evidence of remorse or contrition, will make it impossible to infer from a plea that remorse or contrition or the other matters arguing for leniency exist.

31 It should be said also that the absence of a plea is not necessarily inconsistent with remorse. Without intending to be exhaustive, sometimes a plea of not guilty will be inspired by a simple desire to avoid the punishment which is likely to follow any conviction. Sometimes, particularly where there are co-offenders, it will be the result of peer pressure.

32 Remorse and contrition are matters going in mitigation and the onus of proof of them accordingly is on an offender. On this aspect of a plea’s significance, its nature is but one of the factors to be taken into account in an assessment of whether remorse or contrition or other factors bearing on the proper sentence exist.

33 The second way in which, traditionally, a plea is considered arises from the fact that commonly pleas provide a benefit to the justice system. Cases where offenders plead guilty may take an hour or two, unusually a day, for the Court to dispose of, whereas had those matters gone to trial, the average time taken would be much longer – many days or even weeks. The resources within the justice system just could not cope were all, or even most, matters to go to a contested trial and it has been regarded as of benefit to the system for offenders to plead guilty. To encourage such pleas, rewards in the form of lower sentences have been imposed or, looked at from another perspective, discounts from sentences otherwise appropriate have been granted.

34 It was to this utilitarian benefit that most of the discussion in R v Thomson and Houlton (2000) 49 NSWLR 383 was directed and it was in reference to it that most of the guideline given in that case was expressed. Thus it was said, at [160] :-

“(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.”
(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.

35 Earlier, at [152-154], it had been said:-

“In my opinion, the appropriate range for a discount is from 10-25 percent.

The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.

There are however two circumstances which will generally affect the appropriate level of discount in a particular case:

(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.

(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.”

36 Before I pass on, it may be appropriate to observe that the terms in which these passages were expressed demonstrate that, even if all other issues are resolved in favour of the prisoners, and one treats them as having pleaded guilty at the earliest opportunity, they have no “entitlement” to a 25% discount. As was said in R v MacDonnell [2002] NSWCCA 34 at [45]:-

“In case there should be a misapprehension that a discount of 25% is routinely to be extended for pleas of guilty either by reference to the Cameron factors, that is for their display for an acceptance of responsibility and a willingness to facilitate the course of justice, or for the additional fact of contrition, then that notion should be rejected. It does not reflect the result of the decision Thomson and Houlten or Cameron .” (The reference to Cameron factors is a reference to those mentioned in Cameron v R [2002] HCA 6.)

37 See also R v Howard [2001] NSWCCA 309.

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.

41 I turn then to the subjective circumstances. Mr Mohamed Dib was born in February 1978. His first recorded offence was malicious wounding when he was 17. In early 1996 he was convicted on four counts of supplying a prohibited drug and sentenced to community service. In July 1997 he committed two counts of assaulting a police officer in the execution of his duty and two of resisting or hindering a police officer in the execution of his duty. In August 1999 he was convicted of 2 counts of stealing a motor vehicle and on each was sentenced to 200 hours community service. He breached those orders and was sentenced to concurrent terms of 4 months imprisonment commencing in November 2000. Served at the same time was one month imprisonment for intimidating a police officer in the execution of his duty. A further such offence seems to have been committed in February 1999 and in June 1999 he committed an offence of hindering an investigation of a serious indictable offence for which he was sentenced to 8 months imprisonment. An appeal was dismissed. That term was confirmed but the non parole period was reduced to 4 months commencing on 2 October 2001. The last offence on his antecedents report was described as “stalk, intimidate W/I cause fear of personal injury” for which a 2 year bond was imposed including a term of not attempting to intimidate any police officer.

42 I have said above that Mr Dib breached his community service orders and was sentenced to concurrent terms of 4 months imprisonment commencing in November 2000. During the course of sentence proceedings it was suggested that the occasion for breach of the community service orders was Mr Dib’s arrest and incarceration, making further service of those orders not possible. Having regard to the fact that these matters if they were correct could or would no doubt have been brought to the attention of the judge who sentenced Mr Dib for breach of the orders, I am not persuaded that the conclusion at which I have been urged to arrive is correct or that I should in any event take it into account in reducing the sentence otherwise appropriate for Mr Dib.

43 A pre-sentence report obtained for Mr Mohammad Dib shows he first came in contact with the Probation and Parole Service in about August 1999. His parents arrived from Lebanon in 1977 and he is one of 4 children. He married in 2000 and, as at 18 October 2002 had a 20 month old child. He completed a year 10 certificate and claimed to have operated his own market garden since 1998. He reported that he used cannabis between the ages of 15 and 17 on a daily basis but not thereafter.

44 The report also said that “Mr Dib presented as a young man who is confident with a certain imperturbable attitude. … although (he) stated that he is remorseful for his actions towards the victim, the victim’s family and his own family, it appeared to be a rote response. … while in custody (he) has not attempted to begin to address his offending behaviour… (and that) it does not appear to be in the best interests of Mr Dib or the community to offer any community based sentencing options.

45 The report went on “he does not take any responsibility for the offence” and “it would appear Mr Dib would need intense therapy prior to his release into the community, this may be completed through the use of a Department of Correction psychologist and the participation in the “Violence Prevention Programme” offered at Long Bay Correction Centre.

46 There was tendered an Affidavit by Mr Dib in it he recounted something of his school, sport and employment history prior to his arrest on 26 November 2000. In the 2 years prior to that arrest he was working his own commercial garden.

47 Mr Dib said also that he had been classified as a “high risk” prisoner because, he says he has been told, of police intelligence. He goes on to describe restrictions and loss of privileges arising from that classification, restrictions and loss which can only be described as substantial. He acknowledged having been convicted while in prison of smoking in the wing, using insulting language and having possession of a phone. He acknowledged failing a urine test but asserted that this was due to inability to provide urine when it was demanded.

48 Mr Dib also directed a deal of space to the topic of his relationship with the police. He asserted that, inter alia, he had been subjected to a deal of harassment, had been set up for an offence of which he was not guilty (and acquitted) and that following a robbery he had committed which yielded a substantial amount of money, police stole that money from him and a co-offender. He asserted a charge in 1997 of assault police and resist/hinder police arose in consequence of an illegal search of his house

49 There was also an affidavit by his wife. She said they married in May 2000. In large part the Affidavit is directed to showing the hardship suffered by Mr Dib’s family in consequence of his incarceration. However, the hardship deposed to is not in that exceptional category which justifies it being taken into account. It is not substantially different in extent from that which one would expect were a married family breadwinner with children incarcerated. Nevertheless the Affidavit does, on its face, indicate Mr Dib has a stable family life to return to when he is released.

50 Mrs Dib also deposed to Mr Dib being gentle, caring and considerate and one who does not approve of violence and to her belief that he is genuinely sorry for what he has done.

51 It should be mentioned also that the evidence before me indicates that at the time Mr Moustapha Dib was attacking Mr Lee, Mr Mohamed Dib pulled his brother away. There are, perhaps, a number of possible reasons for that, but I am prepared to proceed on the assumption that a major factor was concern for the victim.

52 At what conclusions should I arrive so far as Mr Dib’s subjective features are concerned? In the circumstances of this case, I do not regard Mr Dib’s plea of guilty, while consistent with contrition, as indicating contrition exists or even as arguing for that situation. Nor does any other evidence, on its own or considered in light of the plea persuade me that there is contrition or remorse on the part of Mr Dib. In arriving at that conclusion I do not need to rely on any of the statements in the pre-sentence report concerning Mr Dib. Having regard to the extent to which that report is adverse to him, I think it preferable to, in those respects, put it aside and judge the relevant questions on the basis of other evidence bearing in mind where the onus of proof of matters in mitigation lie. The onus is on Mr Dib to demonstrate contrition and he has not discharged it. To quote Dixon CJ it is not “the most probable deduction from the established facts.”

53 While it is not unlikely, given his record in other respects, that Mr Dib has been the subject of what he would regard and what may in fact be undue attention by the police, I am not persuaded that much of his criminal history is not conduct for which he is fully responsible. The extent of that record provides support for some of the sentiments in the pre-sentence report but as I have indicated, I do not propose to rely on that insofar as it is adverse to him. I am just not persuaded that there is much to be said in mitigation so far as Mr Dib is concerned. I do accept that his conditions of custody - and the Crown did not challenge his account - justify a finding of special circumstances but that is the only factor which does so. Insofar as his wife described him as “gentle, caring and considerate and one who does not approve of violence”, I am not persuaded that these characteristics apply vis-a-vis the general community.

54 Mr Kanaan was born on 23 May 1975. His first recorded offences seemed to have occurred in May 1997, one count of possession of a prohibited drug and one of possession of a prohibited article. In October 2001 he was convicted of two counts of murder for which he was sentenced to life imprisonment and one count of malicious wounding with intent to cause grievous bodily harm. In August 2002 he was convicted of a further count of murder and again sentenced to life imprisonment. The date on which Mr Kanaan was charged with these offences is subsequent to the offence with which I am concerned. There is no evidence before me as to when they occurred and, accordingly, I think I should disregard them. There was evidence from Mr Rossinski of very extensive criminality of Mr Kanaan and himself prior to the instant offence and while I accept that evidence to the requisite (criminal) standard the only extent to which I propose to rely on it is as indicating that Mr Kanaan should not be given any leniency such as is commonly extended to those with no or almost no criminal record. Again, I am not persuaded that there is any contrition on the part of Mr Kanaan.

55 Mr Refai was born in January 1974. His first offences, one of acting in an offensive manner and one of having custody of an offensive implement were committed in November 1993. In July 1994 he was convicted of possession of a prohibited drug. In that same month he was charged with supplying not less than a commercial quantity of a prohibited drug. In due course he pleaded guilty to knowingly take part in such supply and in January 2001 was sentenced to 18 months imprisonment commencing on 24 January 2001 such term to include a 9 months non-parole period. In April 2000 he committed the offence of riding or driving in circumstances where he had never been licensed and in December 2000 the offence of driving while disqualified. In April 2001 he was sentenced for that offence to 2 months imprisonment. Undeterred, in January 2002 he repeated that offence and in April was sentenced to a suspended 12 month term of imprisonment. He has been on bail pending the outcome of these proceedings.

56 A pre-sentence report indicated that Mr Refai had contact with the Probation and Parole Service since 1992. The report indicates he was not compliant with court orders years ago but since April 2002 “he has displayed a compliant and responsible attitude whilst under the supervision of this service.” The report records that Mr Refai experienced a somewhat dysfunctional upbringing and that he reported that during his mid to late adolescence he was associating with peers whose lifestyle revolved around drug use and anti-social criminal activities. He was educated to year 10, completed 2 years of a 4 year apprenticeship as a mechanic but then was unemployed for a period.

57 Since 2000 Mr Refai has been employed in the family construction business and in July 2002 commenced a 3 year diploma of building studies. He married in March 2002 and the report indicates his wife is a stabilising and positive influence on him and that he appears committed to maintaining a positive and productive lifestyle. It was also said that Mr Refai was unlikely to benefit from further supervision as there did not appear to be any underlying issues the service could address.

58 There were also tendered on Mr Refai’s behalf a number of references, including references from the Islamic Centre, the Lebanese Moslems Association, business contacts and friends. Mr Refai was described as having a good sense of social responsibility, mature and responsible and his offence was said to be out of character. One can only infer that the authors of the letters are not familiar with Mr Refai’s past as disclosed above.

59 The reports also revealed that Mr Refai suffered from a genetic blood disorder but there is nothing to indicate that that is likely to make imprisonment harder for him than for others.

60 Mr Refai’s offences in 2000 and 2002 provide a strong indication that he is not in fact responsible and, when considered in light of his earlier record suggest that personal deterrence should be an important factor in the sentence imposed upon him.

61 Nevertheless Mr Refai did, apart from the instant offence, have a clean record between 1994 and 2000. There are sufficient indications in the material tendered on his behalf that he may be able to lead a crime free life. With, I confess, some hesitation I have concluded that the sentence I should impose on Mr Refai is one of a suspended term of imprisonment. In arriving at that conclusion it may be that I am extending undue leniency to him with a view to rehabilitation but that is the conclusion at which I have arrived.

62 However, the term of imprisonment which is suspended will be the longest the law allows and he should understand that his chances of avoiding full time custody in the event of any further misconduct are remote. In arriving at this conclusion it is appropriate to otherwise ignore the 2 days (2 to 4 August 2000) that Mr Refai has spent in custody referable to this matter.

63 In the case of Messrs Dib and Kanaan the only appropriate punishment is one of full time custody. For both I regard the appropriate starting point as 4 years, a period I would reduce by 8 months for their pleas. In the absence of special circumstances the statutory provisions would lead to that period being divided up into a non-parole period of 2½ years and a further period of 10 months. Because of the special circumstances occasioned by the unusually harsh conditions of Mr Dib’s imprisonment which are not suggested to be his “fault” and which I infer are likely to continue for at least an appreciable period, I propose in his case that there be a reduced non-parole period of 2 years and a corresponding increase in the period during which he is eligible for parole.

64 Any pre-sentence custody of these offenders referable to the instant offence must be taken into account. I was informed that in the case of Mr Kanaan, while he was arrested on 15 August 2000, he has been in custody for other matters continually since 3 June 1999. I do not need to reconcile those dates but thus there is no relevant pre-sentence custody in his case.

65 Mr Dib was arrested on 2 August 2000 and spent some 10 days in custody before being admitted to bail. He was returned to custody on 26 November and as at 9 December it was agreed he had spent 512 days in custody referable to this offence, i.e. 521 days to today.

66 To give effect to these matters it seems to me that the appropriate orders are:-

(i) In the case of Mr Refai, I sentence you to imprisonment for a period of 2 years, suspended for a period of 2 years and direct that you be released from custody upon condition that you enter into a good behaviour bond for the period of 2 years.
(ii) In the case of Mr Kanaan, I sentence you to imprisonment for a period of 3 years and 4 months, including a non-parole period of 2 years and 6 months, both such periods to commence today.

(iii) In the case of Mr Dib, I sentence you to imprisonment for a period of 3 years and 4 months, including a non-parole period of 2 years, both such periods to commence on 15 July 2001.

Last Modified: 08/22/2003