R v Haouchar

[2018] NSWSC 885

Supreme Court

New South Wales

Medium Neutral Citation:	R v Haouchar [2018] NSWSC 885
Hearing dates:	13 June 2018
Date of orders:	15 June 2018
Decision date:	15 June 2018
Jurisdiction:	Common Law
Before:	Hidden AJ
Decision:	s 9 bond for 2 years
Catchwords:	CRIMINAL LAW – sentence – pleas of guilty – accessory after the fact to murder and to shoot with intent to murder – limited assistance to principal offenders – period of 3 ½ years pre-sentence custody – whether any further punishment called for
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s9
Cases Cited:	Gall v R [2015] NSWCCA 69 R v Allouche & Ors [2017] NSWSC 975 R v Batcheldor [2015] NSWSC 1688 R v Cowen [2008] NSWSC 104
Category:	Sentence
Parties:	Regina Bilal Haouchar
Representation:	Counsel: T McCarthy – Crown D Dalton SC with A Djemal - Offender   Solicitors: Solicitor for the Director of Public Prosecutions - Crown One Group Legal - Offender
File Number(s):	2014/312947
Publication restriction:	No

Judgment

1. The offender, Bilal Haouchar, was to face trial for the murder of Ali Hachem Eid and for shooting at Mohammed Hannouf with intent to murder him. The two offences were said to have been committed on the same occasion at Punchbowl on 27 November 2012. Two days ago, on 13 June 2018, a fresh indictment was presented against him. It contained the same two counts but added alternative counts of being an accessory after the fact to those offences. He pleaded not guilty to the principal offences but guilty to each of the counts of accessory after the fact. The Crown prosecutor accepted those pleas in satisfaction of the indictment. He stands for sentence for those offences.

Facts

2. There is an agreed statement of facts which, for present purposes, need not be set out in full. It is sufficient to refer to parts of it only.

3. On 27 November 2012, Mr Eid, the deceased, and Mr Hannouf were shot by two unknown masked men at the site of a home at Punchbowl owned by the deceased, which was under renovation at the time. The facts do not disclose the circumstances of the shootings or the motive for them. The two victims had been engaged in the supply of prohibited drugs for a period of time, but whether that was the context in which the offences were committed I cannot say.

4. Mr Eid died at the scene. A post-mortem examination revealed four gunshot wounds. Three bullets perforated the chest cavity and one of them also penetrated into the abdominal cavity, where it injured the liver. The fourth gunshot wound was to the left hand. Mr Hannouf was treated at the Emergency Department of St George Hospital the same day for multiple gunshot wounds. There were wounds to his right shoulder and left elbow, both requiring surgical removal of a bullet, and wounds to his left and right buttocks.

5. Shortly after the shootings the offender met with the person or persons involved, and understood that the two victims had been shot at with the intention of killing them and that Mr Hannouf had been seriously injured and Mr Eid had been killed. He was asked to assist by taking the clothes worn by the gunmen away and disposing of them. He agreed to assist and took the clothes. At no time was he aware of any planned murder or shooting, or that any physical confrontation, whether with or without weapons, was to occur.

Subjective case

6. The offender, born on 23 July 1986, was 26 years old at the time of the offence and is now 31. He has a bad criminal history, but it should be noted that it is comprised almost entirely of offences committed between January 2000 and March 2004. The one exception is an offence of possessing a prohibited drug in January 2010, which is of no present significance. The other offences were committed when he was aged between 13 and 17 years. Some of the offences were not finally dealt with until some years after they were committed.

7. Many of the entries in the criminal history are for serious offences, including assault occasioning actual bodily harm, aggravated break and enter and robbery (including armed robbery). Some of these were dealt with in the Children’s Court, others in the District Court. On a number of occasions he was sentenced to control orders and significant prison terms.

8. On 23 September 2008, I sentenced him for manslaughter for his part in a home invasion on 8 May 2003, during which the victim was shot dead by an accomplice. The sentence I imposed was imprisonment for 6 years with a non-parole period of 3 ½ years. For reasons which need not now be explained, that sentence commenced on 24 December 2007. Accordingly, the non-parole period expired on 23 June 2011, and the total sentence on 23 December 2013.

9. Not long after I passed that sentence, on 2 December 2008, he was dealt with by Ellis DCJ for an armed robbery committed on 21 April 2003. He had not been charged with that offence until 12 September 2007. His Honour imposed a sentence of 4 years with a non-parole period of 1 year and 4 months. Again for reasons which need not be explained, that sentence commenced on 24 February 2010, so that the non-parole period expired on the same date as the non-parole period I set, 23 June 2011. The total sentence expired on 23 December 2014.

10. It will be seen that at the time of the present offence, 27 November 2012, the offender was on parole in respect of the sentences passed by both Judge Ellis and myself. That parole was revoked on 14 December 2012 (although for reasons unrelated to the present offences). He was arrested for these offences on 24 October 2014. The balance of parole expired on 23 December 2014, since which time he has been in custody referable to these offences only.

11. I received in evidence a psychological report of Mr Sam Borenstein and a number of testimonials, one of them from a gentleman who offers the offender employment in his kitchen business upon his release.

12. What emerges from this material is that the offender was born in Sydney to Lebanese parents, and is one of 7 children. He was educated to year 10 standard, but began to “act out” from early secondary school. He told Mr Borenstein that he started doing “men type things”, mixing with older boys. In this period he was introduced to drugs and alcohol. He spent time away from home, he said, to avoid domestic violence, although he refused to elaborate on that topic. As I observed when I sentenced him in 2008, it is not easy to determine why his life took the course it did, given that he apparently had the benefit of a stable and supportive upbringing and none of his siblings had come into conflict with the law.

13. That said, it appears that he has been gaining insight into his behaviour. It seems that the lion’s share of his life since his mid-teens has been spent in custody. Some years ago, prior to his release after a period of custody, he completed a Violent Offenders Treatment Program and was involved in a maintenance program after his release on that occasion. Mr Borenstein reported that he described that program “in very positive terms.” He had also participated in other rehabilitation programs, including drug and alcohol courses.

14. He told Mr Borenstein that he was “fed up”, more than he had ever been in his life before. He added, “I’m 31 and haven’t achieved anything in my life.” In August 2017, his father, aged 66, died unexpectedly of a brain aneurism. Despite his reluctance to talk about domestic violence in the family, he chose to maintain a positive memory of his father. His mother has multiple health issues, which apparently are deteriorating, and to Mr Borenstein he expressed concern about her. He said that he wanted to support his family upon his release. He was looking forward to the opportunity of employment in his friend’s kitchen business.

15. Generally, he told Mr Borenstein that he felt that he had matured in ways which were lacking when his offending behaviour began. Mr Borenstein noted in his report that his criminal history involved offences occurring within “a crucial adolescent phase of development” at a time when his brain was undergoing rapid developmental changes and was not fully developed.

16. Mr Borenstein expressed the opinion that he would require ongoing support upon his release from prison, “to ensure he remains committed in his resolve to avoid habits learned in the most crucial stage of his adolescence.” He recommended Probation and Parole supervision and psychological treatment. When I sentenced him 10 years ago, the material before me suggested that he then had good prospects of rehabilitation. One can only hope that now he has matured as he claims, and that his rehabilitation can be achieved.

Sentencing

17. The offence of accessory after the fact to murder carries a maximum sentence of 25 years imprisonment. The offence of accessory after the fact to shooting with intent to murder carries a maximum sentence of 5 years imprisonment. In neither case is there a standard non-parole period.

18. Mr Dalton SC, who appeared with Mr Djemal for the offender, cited the sentencing decision of Buddin J in R v Cowen [2008] NSWSC 104 where, at [15] ff, his Honour summarised the principles emerging from the authorities relating to sentencing for the offence of accessory after the fact to murder. Those principles are applicable to both the offences here. His Honour encapsulated the approach at [16], as follows:

Clearly the community has an interest in ensuring that offenders who have committed serious crimes be brought to account. Accordingly, endeavours made by those who seek to assist such offenders from avoiding detection must be strongly resisted and visited with appropriate penalties. In those circumstances, the nature of the assistance which is provided, the extent to which it assists the principal offender in avoiding detection and the reasons why the assistance was extended, are all factors which are relevant to the exercise of the sentencing discretion.

19. The authorities recognise the wide variation of degrees of culpability in the offence. In the present case, the principal offences were serious. The assistance afforded by the offender was limited but, nonetheless, significant. He disposed of the clothing of perpetrators who had been almost completely disguised at the time of the principal offences. He did so willingly, there being no evidence of any threat or fear operating on his mind. There is nothing to suggest that his involvement was the product of any emotional attachment or loyalty to the principal offenders, or of any dependence on them. The material does not reveal who they were or the nature of his contact with them.

20. The circumstances lead me to the conclusion that the objective gravity of the offences fall into the lower range of offences of their class, although by no means at the bottom of the range. Clearly, they call for a term of full time imprisonment. The central question, however, is whether that requirement is met by the period of custody he has already served. As I have said, his custody since the expiration of his balance of parole on 23 December 2014 is solely referable to these offences. That amounts to a period, in round figures, of 3 ½ years. The Crown prosecutor acknowledged that he should have the benefit of that period. Mr Dalton argued that allowance should be made for the period since his arrest for the offences two months earlier, on 24 October 2014. The difference, in my view, is not significant.

21. Mr Dalton provided Judicial Commission Statistics for sentence for the offence of accessory after the fact to murder, together with three recent sentencing decisions in relation to that offence. Gall v R [2015] NSWCCA 69 was an appeal in which a sentence passed by Adamson J was upheld. The other cases were R v Batcheldor [2015] NSWSC 1688 (Bellew J) and R v Allouche & Ors [2017] NSWSC 975 (Fullerton J).

22. In Gall, the offender had assisted the principal offender, his son, by hosing the deceased’s blood from the floor of the relevant premises. He stood for sentence for other offences as well, and for the accessory offence was sentenced to a fixed term of imprisonment for 2 years. In Batcheldor, the offender stood for sentence for an offence of detaining a person for advantage, as well as the offence of accessory after the fact to murder. The latter offence involved reasonably extensive assistance to the principal offender over a period of some days. Bellew J imposed partly concurrent sentences, the sentence for the accessory offence being imprisonment for 4 ½ years with a non-parole period of 3 years and 4 months. In Allouche, the offender Bilal Allouche had been present at the scene of a shooting and assisted the principal offender by disposing of his phone, which may have contained incriminating electronic material. Making allowance for a discrete period of pre-sentence custody of a little over 1 year and 3 months, Fullerton J sentenced him to a fixed term of 6 months.

23. I approach the statistics and the cases with the caution enshrined in authority, bearing in mind that they can only be of limited assistance in the sentencing decision I must make. The facts and subjective circumstances in those cases were, of course, different from the present case.

24. Mr Dalton observed that the offender’s pleas of guilty were entered on the basis of information which he had voluntarily supplied. I accept that he is entitled to some credit for that, even though the information is bare and devoid of any detail. Mr Dalton argued that the utilitarian value of the pleas of guilty should be recognised by a reduction of sentence of 20-25%. The Crown prosecutor’s position was that 10-15% would be appropriate. Finally, Mr Dalton submitted that the matter called for concurrent sentences but that, even with partially accumulated sentences, the total term should not exceed 3 years. The Crown prosecutor argued that the sentences should not be wholly concurrent, but refrained from making any comment about the figure suggested by Mr Dalton.

25. In effect, then, Mr Dalton’s position was that the period of custody the offender has already served in respect of these matters, even if it were limited to the time spent since the expiration of the balance of parole, is more than enough to mark the offender’s criminality and that no further punishment should be imposed. I understand the force of that submission. Insofar as any trend emerges from the statistics and the cases to which he referred, they lend some support to it. In my view, the pleas of guilty would warrant a reduction of sentence of the order of 15-20%. Some accumulation of sentence would be called for, but it would not be marked.

26. That said, there are here two offences of accessory after the fact to serious crimes. Moreover, as Mr Dalton acknowledged, the offences were committed while the offender was on parole in respect of two other serious offences. On balance, I think that the present offences call for a measure of further punishment but that this requirement would be met by requiring the offender to enter into a bond under s 9 of the Crimes (Sentencing Procedure) Act1999 (NSW). This will also have the advantage of fostering his rehabilitation by providing upon his release a period of supervision and the sanction of conditional liberty.

27. Bilal Haouchar, in respect of each of the offences to which you have pleaded guilty, I direct that you enter into a bond to be of good behaviour for a period of 2 years. The conditions of that bond are:

1. that you appear before the court if called upon to do so at any time during the term of the bond;

2. that you be of good behaviour during the term of the bond; and

3. that you submit to the supervision and guidance of the Probation and Parole Service, and obey any direction given to you by officers of that Service, for as much of the period of the bond as the Service considers appropriate.

4. I direct the offender attend the office of the Probation and Parole Service at Parramatta on Monday 18 June 2018.

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Decision last updated: 18 June 2018