R v Haouli

[2024] NSWDC 370

District Court

New South Wales

Medium Neutral Citation:

R v Haouli [2024] NSWDC 370

Hearing dates:

15 August 2024

Date of orders:

15 August 2024

Decision date:

15 August 2024

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

Orders at para [73]

Catchwords:

CRIME – Property offences – Enter dwelling with intent – Dishonestly obtain property belonging to another – Attempt to steal motor vehicle – Dispose of stolen property – Sentence – Objective seriousness – Aggravating and mitigating factors – Co-offenders – Parity – Moral culpability – Intensive corrections order

Legislation Cited:

Crimes Act 1900 (NSW) s 154F; s 111; s 188(1); s 192E(1)(a)

Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A; s 5A; s 10A; s 21A; s 66

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

Hoskins v R [2021] NSWCCA 169

IS v R [2017] NSWCCA 116

Mandranis v R [2021] NSWCCA 97

Maxwell v R [2007] NSWCCA 304

Nasrallah v R [2021] NSWCCA 207

R v El Farra [2023] NSWDC 470

R v Hayes [1984] 1 NSWLR 740

R v Hosking [2020] NSWCCA 18

R v Irwin [2019] NSWCCA 133

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Zheng v The King [2023] NSWCCA 64

Category:

Sentence

Parties:

Rex (Crown)
Marcel Haouli (Offender)

Representation:

Counsel:
C Ervin (Crown)
M Confos (Offender)

Solicitors:

File Number(s):

2022/219155

Publication restriction:

Nil

JUDGMENT; ex tempore

Overview

1. The Offender, Marcel Haouli, is aged 50 years. At the time of the commission of the offences, he was aged 47 years.

2. The offences occurred during a period of about two weeks from 15 June 2022 to 4 July 2022 and involved the theft and attempted theft of 2 motor vehicles and the obtaining of property by deception in relation to a third, together with related entry of dwelling charges. All of this occurred while the Offender was significantly affected by illicit drugs to which he was addicted.

3. The Offender was in custody, solely referrable to these offences from the date of his arrest on 26 July 2022 until he was released on conditional bail on 14 April 2023.

4. The Offender spent 8 months and 20 days (263 days) in custody and is entitled to have that time taken into account upon being sentenced.

Charges

5. On 11 May 2023 at the Downing Centre Local Court the Offender pleaded guilty to the following offences:

Form 1 Offences

6. The Offender asks the Court to take the following Form 1 offences into account when being sentenced for the above matters:

The history of this sentencing hearing

7. The matter first came before me on the 17 August 2023 and again on the 26 October 2023, whereupon, on the application of the Offender, I adjourned the matter until 8 March 2024, so as to allow him to continue what appeared to be his good progress towards rehabilitation from his serious long-term drug habits by continuing an eight month residential rehabilitation program at Wayback Drug and Alcohol Rehabilitation Service (“Wayback”).

8. On 8 March 2024, the matter was again before me and adjourned again upon evidence to the effect that the Offender’s rehabilitation was continuing, apparently successfully, and he had received glowing reports as to his commitment to the program and there were real positive improvements to his life as a result of this rehabilitation program and other steps he had taken.

The co-Offender

9. The co-Offender, Mr El Farra, was sentenced by me for his involvement in some of the offences and other drug related offences. I passed sentence on 3 November 2023: R v El Farra [2023] NSWDC 470. For reasons that I then gave, I sentenced the co-Offender to an aggregate term of two years and seven months, to be served by way of an intensive corrections order. To understand the interrelationship between the two matters, sequences 13 and 5 on the form one in this matter were sequences 3 and 4 on the sentence of the co-Offender Mr El Farra. I will return to Mr El Farra’s sentence when discussing the question of parity.

Agreed Facts

10. The parties have agreed to the following facts as abridged by me:

Toyota Corolla

Seq 12 - s 188(1) - Dispose of Stolen Property

Seq 11 – s 192E(1)(a) - Dishonestly obtain property belonging to another (Form 1 attached to Seq 12)

11. Around 3:33pm on 17 June 2022, the Offender was captured on CCTV entering Service NSW Bankstown. The Offender was wearing sandals with white patches on the straps, long black pants with 3 small white logos on the left thigh, a black t-shirt with a white logo on the front and a black man-bag.

12. The Offender approached a Service NSW counter and utilised a forged 'Application for Registration' document and a forged 'Registration transfer details' document to transfer the registration and ownership of a white Toyota Corolla (which had gone missing from an underground carpark in Mascot between 15 and 23 June 2022, and was suspected to be stolen).

13. Noticeably, the above 'Registration transfer details' document depicts the signature of Shuwen Li, the registered owner of the Toyota, as having been incorrectly spelt/signed as 'Sheun Li' on the 8 June 2022. Immigration checks conducted by Police indicated that the registered owner was in China.

14. On 24 July 2022, the Offender “sold” the white Toyota Corolla to Lina Shi for the amount of $15,000.00.

Mercedes C3SQE

Seq 9 - s 111(2) - Aggravated Enter Dwelling with Intent

Seq 5 – s 154F – Attempt to steal motor vehicle (Form 1 attached to Seq 9)

15. On 15 June 2022, the Offender and the co-accused entered a secure underground car park at Mascot.

16. The Offender, who was driving, drove around the car park for approximately 7 - 8 minutes before parking next to a Mercedes-Benz.

17. The Offender then got out of the car and approached the driver’s side door of the Mercedes carrying an unknown object in his hand.

18. The Offender and the co-accused made their way to the front of the Mercedes, opened the bonnet fully and inspected the engine bay.

19. Around this time, a roaming security patrol sighted the men. The Offender and co-accused then got back in their car and drove away.

20. On 24 June 2022 the Offender and co-accused entered the Service New South Wales centre in Bankstown.

21. The co-accused approached the counter and presented a forged “application for registration” document and a forged handwritten “confirmation of sale” and successfully fraudulently “transferred” the registration of the Mercedes into the co-accused’s name.

22. On 25 June 2022, the co-accused contacted a tow truck operator, requesting a vehicle tow, identifying the location of the Mercedes, and said that he was the owner of the vehicle.

23. On 25 June 2022, the Offender and the co-accused again entered the car park.

24. The tow truck arrived but was stopped by security, who spoke to the co-accused, who showed them the forged registration documents.

Toyota Prado

Seq 7 - s 154F - Steal Motor Vehicle

Seq 13 - s 111(1) - Enter Dwelling with Intent (Form 1 attached to Seq 7)

25. A Toyota Prado was stolen from the secure underground carpark in Mascot on the night of the 4 July 2022.

26. On 25 July 2022, police applied for and were granted search warrants for both the Offender and Mr El Farra's home addresses.

27. On 26 July 2022, the search warrants were executed. Among other things, police located the stolen Toyota Prado in the backyard of the Offender's home address.

Objective seriousness

28. In respect of sequence 7, the stealing of the Toyota Prado, the Crown submits that the objective seriousness falls towards the lower end of the range for the following reasons:

1. The vehicle was parked in an underground carpark attached to a residential apartment building at the time it was stolen.

2. The offence appears to be opportunistic in nature with the Offender having no intention to confront any person inside the carpark.

3. The vehicle was not damaged as a result of the offending.

4. The vehicle was returned to the victim.

29. In respect of sequence 9, the break and enter into the carpark with the intent to steal the Mercedes, the Crown again submits that the objective seriousness falls towards the lower end of the range for the following reasons:

1. One of the relevant matters in assessing objective seriousness is the number of aggravating features present: Maxwell v R [2007] NSWCCA 304 at [26]. In this matter, the aggravating feature of ‘knowing persons present’ is averred.

2. A degree of planning and organisation was involved in order to facilitate the attempt to steal a motor vehicle, and it was only the presence of a security vehicle that thwarted the attempt. The Offender is captured on CCTV opening the bonnet of a vehicle and inspecting the engine bay for several minutes.

3. The act was carried out with the intention of making a profit as a result of selling any motor vehicle that the Offenders were able to steal. It is agreed that the value of the motor vehicle the Offender was captured inspecting had a value that was more than $60,000.

30. In respect of sequence 12, the “sale” of the Toyota Corolla, the Crown submits that the objective seriousness falls towards the lower end of the range for the following reasons:

1. There appears to be at least some planning and organisation on the part of the Offender – he has presented forged registration and transfer documents to the Services NSW counter to affect the transfer of the stolen vehicle’s registration into his own name.

2. The offence was clearly done for profit with the agreed facts providing that the Offender went on to “sell” the Toyota Corolla vehicle to an innocent third party for the amount of $15,000.

31. On behalf of the Offender, it is submitted that the objective seriousness of sequences 7, 9, and 12 falls towards the lower end of the range of objective seriousness for offences of this type.

32. In relation to sequence 7, it is emphasised that the offence did not involve a break-in to premises to obtain keys, nor was there any forced entry into the car park, and that the vehicle was ultimately returned to its owner in its original state.

33. In relation to sequence 9, it is conceded by the Offender that he entered a person’s residence with intent to steal a motor vehicle whilst in the company of the co-accused (which is an aggravating feature to which I will come), however it is pointed out that there is no evidence of any sophistication by the Offender. His overall conduct was such that his apprehension was almost inevitable and finally, the offending did not get beyond opening the bonnet of the Mercedes and inspecting the engine bay.

34. As far as sequence 12 is concerned, albeit the Offender forged “an application for registration and submitted such form”, again the conduct was not at all sophisticated because the form was replete with errors and the Offender was very easily identified by CCTV footage.

35. All in all, I am satisfied that the offending in relation to each of the offences falls very much towards the lower end of the range for the reasons given by both the Crown and on behalf of the Offender.

36. As to the form one matters, the attempted theft of the Mercedes and the dishonestly obtaining property by deception, relating to the presentation of the registration papers for the Toyota Corolla, firstly, it is clear that there is a significant, if not total, overlap between the conduct in changing the registration of the Toyota Corolla and its subsequent on-sale and secondly, in relation to all of these matters, I have concluded that they fall well towards the lower end of objective seriousness, in particular because of the overall amateurish conduct of the offending, which almost inevitably was going to lead to arrest and charges which I think, notwithstanding that there was some element of premeditation and planning, in the circumstances of the influence of drugs under which the Offender was operating, to my mind makes these offences less serious than many others of this type.

Aggravating Factors – Section 21A(2)

37. The following aggravating factors, pursuant to s 21A(2) Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) are present in this case:

38. Firstly, s 21A(2)(d), the Offender has a not insignificant criminal record in New South Wales with offences ranging from 2004 – 2022. The Offender has a substantial traffic record, having been convicted of offences such as driving unregistered vehicles, speeding, driving while disqualified, using uninsured vehicle, driver stating false name, proceed through red/yellow traffic light, and drive vehicle illicit drug present in blood. For these offences, the Offender was given the benefit of fines, s9 bonds, suspended periods of imprisonment before serving multiple periods of imprisonment.

39. The Offender also has convictions on his criminal record for more serious offences, such as multiple break enter and steals, robbery, possess prohibited drug, steal property while in dwelling house, larceny, and common assault. For these offences, the Offender was given the benefit of fines and community service orders before more serious punishments such as being given intensive corrections orders and being sentenced to periods of imprisonment.

40. The Crown quite rightly submits that the Court ought find that the Offender has demonstrated a continuing attitude of disobedience of the law, and this does not bode well for the future.

41. As I have said, s 21A(2)(e) is engaged because the offence was committed in company, and s 21A(2)(j) is applicable because the offence was committed while the Offender was on conditional liberty in relation to an offence.

42. At the time of the offending, the Offender was subject to:

1. H76424985 - an intensive corrections order in relation to a break & enter house steal value <= $60,000 (2 counts) commencing 27/10/2020 and concluding 26/10/2022; and

2. H74780559 – a conditional release order in relation to the offence of drive motor vehicle while licence suspended 2nd offence commencing 27/10/2022 and concluding 26/10/2020.

43. Finally, s 21A(2)(o) applies because all of the offences were obviously committed for financial gain.

Mitigating Factors

44. The Crown accepts that the following mitigating factors, pursuant to s 21A(3) of the Sentencing Procedure Act are present in this case:

1. 21A(3)(a) the injury, emotional harm, loss or damage caused by the offence was not substantial; and

2. 21A(3)(k) the early plea of guilty by the Offender.

45. On behalf of the Offender, in addition to the mitigating factors conceded by the Crown, s 21A(3)(g) is relied upon. It is submitted that the Offender is unlikely to reoffend and it is emphasised that the Offender has commenced therapeutic relationships within the community following his successful graduation and exit from Wayback. The Offender has openly acknowledged the consequences of his behaviour. Moreover, the Offender relies on section 21A(3)(h), submitting, really for the same reasons, that the Offender has significantly good prospects of rehabilitation.

46. I accept the Offender's submission in this regard and find that firstly, the plea of guilty by the Offender not only entitles him to the statutory discount of 25% but is objective evidence of what I do think is significant contrition, remorse, and insight by him which, combined with the other objective circumstances for which the Offender is to be commended, being his successful attempts to become drug-free and to change his ways.

47. I am satisfied that the Offender has low prospects of re-offending and that his prospects of rehabilitation are good.

Parity

48. The Offender and the co-Offender obviously had the joint intention of stealing several motor vehicles over a period of multiple weeks and fraudulently transferring them into their own names before selling them for profit.

49. However, the moral culpability of the two Offenders and my assessment of their prospects of reoffending are significantly different for reasons I will explain.

50. Moreover, because Mr El Farra was dealt with for other drug-related and proceeds of crime offences, it is difficult to draw any comparison between the two, other than the overall criminality of the Offender is, to my mind, significantly less than Mr El Farra.

Moral Culpability

Mental Health

51. There is no doubt that the motive for the Offender’s involvement in these offences was to support his drug habit. This is no excuse but is the explanation. In my view, the principles in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 have application. Because of his long-term drug addiction and consequent mental health condition, the Offender’s moral culpability is reduced, and he is an inappropriate vehicle for general deterrence.

Drug Addiction

52. The Offender was, at the time of offending, essentially addicted to the use of heroin, methamphetamine, and gamma hydroxybutyrate (GHB).

53. The fact of an Offender’s drug addiction has a role to play in sentencing.

54. In Nasrallah v R [2021] NSWCCA 207, Hamill J stated the following:

In my view the relevant principles are as follows:

(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;

(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:

(i) the impulsivity of the offence and the extent of any planning for it;

(ii) the existence or non existence of any alternative reason that may have operated in aggravation of the offence, eg that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;

(iii) the state of mind or capacity of the Offender to exercise judgment, eg if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;

55. I take the Offender’s long-term drug addiction into account, especially when assessing his prospects of reoffending, to which I will come.

Deprived Upbringing

56. There is no doubt that the Offender has experienced a disadvantaged upbringing which must be taken into account in sentencing in the ways explained in cases such as Bugmy v The Queen [2013] HCA 37.

57. The Offender experienced an upbringing characterised by violence, ultimately being subject to sexual abuse.

58. In IS v R [2017] NSWCCA 116 (“IS v R”), Campbell J explained:

“…the weight that would ordinarily be given in offending of this serious nature to personal and general deterrence and the protection of society “to be moderated in favour of other purposes of punishment” and, in particular, his “rehabilitation”: Bugmy at 596 [46]”: IS v R at [65].

59. While it is submitted by the Offender that a link between the disadvantaged upbringing the offending is established, it is important to note that the Offender is not required to establish such a link for the Court to take this matter into account; R v Irwin [2019] NSWCCA 133; and Hoskins v R [2021] NSWCCA 169, at [57].

60. I take the Offender's disadvantaged upbringing into account in two ways consistent with the authority of R v Hosking [2020] NSWCCA 18:

1. The Offender's background must operate to reduce the Offender's moral culpability; and

2. The fact that the Offender has recently been able to live a pro-social life, free of crime despite his upbringing does support the finding that the Offender has good prospects of rehabilitation.

Consideration

61. The factors to be taken into account are well known and are set out in s 3A.

62. I am satisfied that:

1. The offending is towards the lower end of objective seriousness.

2. The offending can be explained by the significant drug addiction of the Offender at the time, which had manifested as a mental health condition, and his disadvantaged upbringing, which of course itself is undoubtedly a cause of his long-term drug addiction.

3. The Offender has demonstrated significant contrition, remorse, and insight and has taken very significant steps to change his ways. In this regard it is important to recall that the court deferred sentence to allow the Offender to complete Wayback, which he successfully completed. I am satisfied that since his admission to Wayback, the Offender has had no substance use and has been compliant with the program, thereafter, participating in weekly counselling and applies himself to continue his recovery.

1. The Offender has, since completing his time at the rehabilitation centre, commenced training with a view to other employment, which again appears to be a success. He is continuing with ongoing treatment for his addiction and mental health.

2. The Offender is entitled to 25% discount for the guilty plea.

3. The Offender seems to have established strong family ties with his partner and child.

4. The Offender has demonstrated considerable remorse, contrition, and insight and I am satisfied is determined to do his very best to stay drug-free and not reoffend.

5. The time spent in custody to date of 263 days, together with the eight months full-time in the rehabilitation centre, already amounts to significant punishment of the Offender and satisfies in large part the very significant need for general deterrence in these sorts of matters.

63. Notwithstanding the inherently serious nature of the offending and the extremely poor criminal background of the Offender, together with the other aggravating matters I have identified, I do think that the Offender presents with a significantly powerful subjective case to the effect that he has come to a significant crossroads in his life, he has taken a significant turn for the better, and if he continues on the path he is presently on, his prospects of reoffending are low and his prospects of being rehabilitated are very good.

Section 5A

64. There is no doubt in my mind, and I don't think this is contested by the Offender, that the s 5A threshold has been crossed. In that there is no other appropriate sentence but a term of imprisonment.

Aggregate Term

65. However, I do not think that an aggregate custodial sentence ought exceed two years and therefore the question becomes is it appropriate for that sentence to be served in the community. The significant factor to be taken into account being the rehabilitation of the Offender, thus reducing his prospects of reoffending thus protecting the community. Community safety being the paramount consideration of s 66: Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 (“Stanley”); Zheng v The King [2023] NSWCCA 64.

66. This is not the occasion to seek to resolve the asserted tension between the three-step process as described in Stanley, and the approach apparently commended in Mandranis v R [2021] NSWCCA 97 (“Mandranis”) at [61] – [63].

67. I have decided to take into account, when coming to my decision at the second stage of the Stanley three-step process, the 263 days the Offender has spent in custody, together with the eight months he spent in full-time rehabilitation centre, as factors relevant to the overall aggregate sentence.

68. Having taken that approach, there is no need for me to consider what might be described as the Mandranis question because I have concluded before considering whether an ICO is appropriate, that the appropriate aggregate sentence is two years imprisonment.

69. I indicate that in relation to sequence 9, I would have dealt with it under s 10A by proceeding to a conviction but with no penalty.

70. The indicative sentences relating to sequences 7 and 12, taking into account the 25% discount for the early plea (with rounding in favour of the Offender) are:

1. Sequence 7 – 18 months imprisonment

2. Sequence 12 – One year imprisonment.

Intensive Corrections Order

71. Taking into account all the matters I have mentioned, I've concluded that such an order is appropriate. For the Offender to be taken off the path he is currently on and to spend time in custody now will, in my judgement, greatly reduce his prospects of staying drug-free, thus increasing his prospects of reoffending, and increasing the danger to the public.

72. I propose an aggregate sentence of 2 years imprisonment, to be served in the community by way of an Intensive Corrections Order on the following conditions.

Orders

73. My orders are as follows:

1. The Offender is convicted of the offences for which he has pleaded guilty, and I have taken into account the matters the subject of the form 1.

2. Taking into account the discount for the pleas of guilty of 25%, the matters on the form one, the time the Offender has spent in custody and quasi-custody, I impose an aggregate term of two years imprisonment for sequences 7 and 12, to commence today.

3. That the sentence be served by way of an Intensive Corrections Order commencing today on the following conditions:

1. That the Offender not commit any offence.

2. That the Offender refrain from taking any restricted or prohibited drugs other than those prescribed by a medical practitioner.

3. That the Offender continues under the care and supervision of Dr Montonia or such other Doctors at Wayback as appropriate at least every three months.

4. That the Offender continues under the care and supervision of Dr Patrick Cheng monthly, or such other periods as recommended by Dr Patrick Cheng.

5. That the Offender continues under the care and supervision of a psychologist at least once a month.

4. In relation to sequence 9, pursuant to s 10A of the Crimes (Sentencing and Procedure) Act 1999 (NSW), the Offender is convicted without any further penalty.

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Decision last updated: 23 August 2024