R v El-Houli
[2004] VSCA 31
•12 March 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 320 of 2003
| THE QUEEN |
| v. |
| BILLAL EL-HOULI |
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JUDGES: | CHARLES, J.A., BONGIORNO and O'BRYAN, A.JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 March 2004 | |
DATE OF JUDGMENT: | 12 March 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 31 | |
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Criminal Law - Sentence - Theft of motor vehicle - Young offender - Parity - Intellectual disability - Psychiatric illness - Plea of guilty - Non-parole period decreased from twelve months to six months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C. Quin | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr P.F. Tehan, Q.C. Mr T. Kassimatis | Grubissa White |
CHARLES, J.A.:
I agree with Bongiorno, A.J.A.
BONGIORNO, A.J.A.:
On 7 November 2003 Billal El-Houli was sentenced in the County Court to 14 months imprisonment on each of two counts of theft of a motor vehicle. He had pleaded guilty to each of these offences on a presentment upon which he was arraigned containing one count of armed robbery and one count of theft. He was acquitted by a jury of the count of armed robbery which arose out of the circumstances in which he stole the first of those vehicles. The sentencing judge cumulated six months of the sentence on count two upon the sentence on count one resulting in a total effect of sentence of 20 months. She ordered that the appellant serve a minimum of twelve months before being eligible for parole.
The two counts of theft upon which El-Houli was sentenced arose out of two incidents which occurred on 15 September 2001 in which he stole a Toyota Camry motor car and on 5 October 2001 in which he stole a Holden Commodore Calais. On each occasion he had posed as a potential buyer of a motor car advertised by its owner as being for sale. In respect of the first offence involving the Toyota Camry El-Houli claimed that he carried out this theft for $300 promised to him by one Saad El-Temeemi, a male acquaintance some 10 years his senior. So far as the second vehicle is concerned El-Houli stole it with the intention of having it “re-birthed” by El-Temeemi and returned to him. Re-birthing, as the name implies, involves the removal of identifying marks and plates from a motor vehicle and replacing them with the identifying marks and plates of a wrecked vehicle obtained from elsewhere. In this case the destroyed vehicle was obtained from a commercial auction company.
Any involvement of El-Temeemi in the theft of the Toyota went undetected by police. However, as a result of the execution of a search warrant, he was charged
with handling stolen property and being in the possession of the proceeds of a crime by reason of his having been found in possession of the motor from the Holden Calais stolen by El-Houli. It is now not contested by the Crown that El-Temeemi was dealt with by the Sunshine Magistrates’ Court in respect of these offences on 30 July 2003. He pleaded not guilty, the charges were found proved and, in each case, adjourned without conviction to 30 July 2004 on condition that El-Temeemi pay $400 to the court fund together with $180 costs. The Holden Calais motor was forfeited.
El-Houli was charged by police with one count of armed robbery and one count of theft in respect of the two motor vehicles. At committal he reserved his plea but it is also common ground that at all times he was prepared to plead guilty to the theft of both motor vehicles. He at all times denied the armed robbery of which he was eventually acquitted. Having pleaded guilty to each of the thefts he was sentenced as I have already set out.
El-Houli has appealed against his sentences. He claims that in failing to take into account the disposition of Saad El-Temeemi in respect of the offences upon which he was found guilty the sentencing judge offended the principle of parity. He also complains that each of the components of the sentences imposed upon him was manifestly excessive and that the sentencing judge failed to take into account appropriately his pleas of guilty, his remorse, his youth, his prospects of rehabilitation and his personal circumstances, particularly the fact that he is intellectually disabled and suffers from a psychiatric illness namely schizophrenia.
Mr P Tehan QC, for the appellant, argued that the principle of parity in sentencing as expounded in cases such as Lowe v The Queen[1] and Postiglione v The Queen[2] in the High Court and R v O’Brien[3] in this Court meant that in the appellant’s case his sentence invited comparison with that of Saad El-Temeemi, a co-offender in the sense that he was dealt with by the Magistrates’ Court on offences arising out of or consequent upon one of the offences in respect of which El-Houli was sentenced. He submitted that the trial judge had been in error in failing to take into account the fact that El-Temeemi had received a non-custodial sentence for his part in the overall criminal escapade.
[1](1984) 154 CLR 606.
[2](1997) 189 CLR 295.
[3][1997] 2 VR 714.
Although her Honour did not specifically refer to the sentence imposed upon El-Temeemi in her sentencing remarks in respect of the appellant, in the course of the plea made on his behalf she had specifically inquired of the Crown as to what fate befell El-Houli’s co-offender and was given details of the result of the Magistrates’ Court case as well as being informed that El-Temeemi was 31 years of age, had no prior convictions and that, contrary to El-Houli’s contention, the police did not accept that he was the prime mover in stealing the Holden Calais.
Mr Tehan submitted that if the sentencing judge had accepted El-Houli’s version of the events which gave rise to his stealing of the Toyota Camry (as she did) she ought to have accepted his version of his relationship with El-Temeemi and, in particular, his evidence as to El-Temeemi’s involvement. He noted that the sentencing judge had referred to El-Temeemi as “an associate”. He pointed to such evidence as there was as to the relationship between the two offenders and sought to establish that El-Temeemi had exercised some leadership role in the enterprise.
Mr Tehan submitted that if the police had accepted the appellant’s pleas of guilty to theft such that he could have been dealt with in the Magistrates’ Court the sentence imposed upon him would have borne a greater relationship to that which was imposed on El-Temeemi by that court for the offences in respect of which he was found guilty after a summary trial.
It is trite to observe that the principle of parity does not require the imposition of identical sentences, even upon offenders being sentenced for the same offence. The extent of an individual’s participation in a particular crime, his or her criminal history and personal circumstances and the relationship between him or her and a co-offender are but some of the factors which will lead, in many cases, to different sentences even for the same offence. Sometimes, indeed, the disparity will need to be quite large if both offenders are to be properly dealt with. In the present case El-Temeemi was dealt with by the Magistrates’ Court with respect of quite different offences, even if they arose out of some of the criminal activity for which the present appellant was sentenced by the sentencing County Court judge.
At the time the appellant was sentenced he had an extensive criminal history despite his relative youth. Only a short time before committing the offences he had been dealt with by the Melbourne Magistrates’ Court for over 70 dishonesty offences and had prior convictions for other dishonesty offences and offences involving violence for which he was dealt with over the previous year or so. He had, however, never been sentenced to a period of imprisonment.
At the time she sentenced the appellant the sentencing judge was aware of El-Temeemi’s sentence. She was also aware of the disparity in circumstances between him and the appellant and the fact that they were being dealt with for different offences. In the circumstances I am not satisfied that the argument of disparity made by Mr Tehan has been made out. The appellant would not, in my opinion, be entitled to suffer under a justifiable sense of grievance by reason of his different treatment as that term is used in cases such as Lowe[4] and Postiglione[5].
[4](1984) 154 CLR 606.
[5](1997) 189 CLR 295.
The other grounds relied upon Mr Tehan, which were, in effect, argued together, were, in reality, particulars of a ground that the sentences imposed on the appellant were manifestly excessive as to the individual sentences, the total effective sentence and the non-parole period.
Mr Tehan argued that the appellant’s personal circumstances were that he was an intellectually disabled man who suffered, as well, from the mental illness of schizophrenia. He was 18 years of age at the time he committed each of these offences even though he was not sentenced until some two years later. Mr Tehan pointed to evidence, accepted by the sentencing judge, that he had demonstrated remorse and that his intellectual disability meant that he was in fact functionally illiterate. He was married and had a child under two.
The appellant’s intellectual disability and, perhaps, to some extent at least his mental illness can be traced back to a car accident which occurred when he was nine years of age in which he suffered an apparently serious closed head injury as well as skeletal injuries. His subsequent school history both in Australia and for a period which he spent in Lebanon suggested a significant deterioration in his intellectual abilities. An assessment by Doctor Peter Dowling, a clinical neuro-psychologist, which was before her Honour at the time she sentenced the appellant reported that his presentation and history suggested problems with memory, concentration and other higher cognitive processes as well as emotional/behavioural difficulties including defective impulse control and impaired social judgement. Doctor Dowling found the appellant had a full scale IQ of only 62, scoring in the mildly intellectually handicapped range on both verbal and performance criteria. His verbal skills were measured at well below average and he demonstrated deficiencies in almost all areas upon which he was tested including memory.
Doctor Dowling considered that the appellant was likely to be easily influenced by others and to act in an impulsive fashion such that he fails to fully appreciate the consequences of his actions. He considers that whilst his intellectual disability and acquired brain impairment do not prevent him from knowing right from wrong the limitations they produce could well compromise his judgment and ability to conform to social rules particularly in a context where his peers are breaking those rules.
A psychiatric report which was before her Honour concerning the appellant from Doctor Samir Ibrahim supported an earlier diagnosis by a general practitioner that he had a psychiatric illness with a paranoid delusional aspect. Doctor Ibrahim confirmed a schizophrenic illness with paranoid delusions, auditory hallucinations and catatonic posturing. He prescribed an anti-psychotic medication for the
appellant. His treatment is continuing.
Although the sentencing judge referred to all of the factors which might mitigate a sentence to be imposed upon a young offender for two counts of car theft she still imposed sentences of 14 months on each count of which the appellant would have to serve a total of 12 months before being eligible for parole. It seems to me that even with the aggravating factor of a bad recent criminal history, a non-parole period of a year imposed on a young offender who has never been imprisoned before is too long for two counts of motor vehicle theft, even if the individual head sentences, the order for cumulation and the total effective head sentence imposed by her Honour are not outside the range of permissible sentences. Accordingly, I accept that the sentencing judge has not given sufficient ameliorating weight to the mitigating factors to which she referred in her sentencing remarks in fixing a sentence such that the appellant would have to spend 12 months in prison.
The error in the sentencing judge’s disposition of this case can best be corrected by reducing the non-parole period to 6 months. This will mean that when the appellant has served half of his present non-parole period he will be eligible for release. Of course, should he offend, after his release on parole, he may have to serve the rest of his sentence as well, in custody.
The order I propose is that the appeal be allowed and the sentence imposed by the County Court on 7 November 2003 be varied by reducing the non-parole period to 6 months. This would mean that the appellant will be eligible to be released very shortly. There should be a declaration pursuant to s 18(4) of the Sentencing Act 1991 that the appellant has served a total of 156 days of pre-sentence detention in respect of this sentence to today's date and an order that this declaration and its effect be entered in the records of the Court.
O'BRYAN, A.J.A.:
I agree with Bongiorno, A.J.A.
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