R v Marouche

[2002] NSWCCA 202

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:     Regina v Marouche [2002]  NSWCCA 202

FILE NUMBER(S):
60537/01

HEARING DATE(S):    23 May 2002

JUDGMENT DATE:      23/05/2002

PARTIES:
Stephen Hassan Marouche v Regina

JUDGMENT OF:        Dowd J Smart AJ    

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     01/21/3167; 01/21/3151

LOWER COURT JUDICIAL OFFICER:   Robison DCJ

COUNSEL:
(A)   A P Cook
(C)  P G Ingram

SOLICITORS:
(A)   D J Humphreys
(C)   S E O'Connor

CATCHWORDS:
Sentencing - young offender - need to adjust non-parole period to reflect accumulation of sentences

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
See para 34 and Short Minutes of Orders

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60537/01

DOWD J

SMART AJ

Thursday 23 May 2002

REGINA v STEPHEN HASSAN MAROUCHE

JUDGMENT

1.DOWD J:  The Court is in a position to give judgment in this matter.  Smart AJ will give the first judgment.

2.SMART AJ:  Stephen Hassan Marouche seeks leave to appeal against the severity of a sentence of imprisonment for five years with a non-parole period of three years for robbery in company, taking into account one count of possessing car breaking implements, a ground down car key, one count of possessing an unauthorised firearm and one count of possessing unauthorised ammunition, a concurrent sentence of a fixed term of twelve months for stealing a motor vehicle, and a cumulative sentence of a fixed term of six months for escaping from lawful custody.  The appellant had pleaded guilty to all offences.

3.On Sunday 7 January 2001, the applicant was an inmate of Long Bay Gaol.  He was not eligible for release on parole until 7 February 2003.  About 1.28 pm on 7 January 2001 a corrections officer saw the applicant and another inmate running along the inside of the rear fence line of the complex.  He lost sight of both inmates.  Subsequently a makeshift ladder was located propped up against the rear fence of the complex.  The Crown alleged that the applicant had escaped by climbing the ladder.

4.In his police interview on 21 January 2001 the defendant admitted escaping, but denied using a makeshift ladder to make good his escape, claiming to have used socks covering his hands to climb a fence.  This variation is of no consequence.

5.In his evidence the applicant said that he escaped because he feared for his life as a result of the conduct of two of his older brothers who were also in custody.  One had given evidence to the police about the applicant and a couple of other people.  The applicant said that he had had “several run-ins with inmates at other correctional centres about my brothers”.

6.He had been placed in protective custody by gaol staff.  He had told the psychologist of his fears but not the warders, after the escape, but not before it.  The applicant said that when he escaped he did not contact his girlfriend, who was overseas, or his family. 

7.On 16 January 2001 a white Holden Commodore sedan was stolen from a car park adjacent to a shopping centre at Toongabbie.  On 20 January 2001 the applicant was staying at a flat in Marshall Street, Bankstown.  He claimed that a man called Michael had given the car to him at Doonside, along with a ground down key, and that he had driven it to within close proximity of the flat.

8.Later he and some others went for a drive.  About 12.30 am to 12.45 am the two victims (husband and wife) were walking down Charles Street, Enmore about 150 metres from Enmore Road.  Three men approached them from behind.  As soon as the husband turned around, one of them punched him on the left side of his face.  He fell over into a gate of a terrace house.  He ended up on the ground and next felt a blow to his body area.  His wife observed two of the males hitting her husband.  The third male pulled the wife’s handbag off her shoulder, with force, so she had to let go.

9.The three males ran back to a white Commodore sedan and got into the back seat of the car.  There were two other males in the front seat.  The husband got up and walked towards the car.  The driver got out, holding the handbag.  The husband said, “Give me back her handbag”.  The wife said, “There’s no money in there”.  The husband also said that.  The driver got back into the car and drove away.

10.The wife’s pulse was racing and she felt nauseous.  Other people came and assisted them and called the ambulance and the police.  After the ambulance officers checked them out, they went back with the police to Newtown Police Station.  The husband had a sore and swollen upper lip and cheek area, a bruise on his back and a small graze to his right wrist.  The handbag contained some family papers and cards, as well as the wife’s passport.

11.As a result of information received, the police arrested the applicant on the morning of 21 January 2001.  In his recorded police interview he said that prior to the robbery one of the boys in the car said he wanted to rob the male victim of his wallet.  The applicant said that he was driving the car and stopped it for him.  The applicant said that he remained in the car, did not see what was happening, but heard screaming.  All the other occupants of the car got out. They were away for about two minutes.

12.He thought that when they returned they had a black handbag with them.  He said that he did not know whether any of the property had been dumped.  After driving to Bondi, he returned to the flat in Marshall Street, Bankstown.  He was unable to explain how a receipt for the passport of one of the victims ended up on the coffee table in the flat.  He admitted that he had got out of the car for a very short period in Charles Street, when the husband approached the car, and sought the return of the handbag, but denied that he had it.

13.On executing a search warrant at the flat, police found a Star brown handled .22 calibre pistol and 32 x .22 calibre rounds of ammunition.  Police located the stolen Commodore sedan in the vicinity of the flat.  There was a .22 calibre round of ammunition on the driver’s seat.

14.The applicant was born on 11 May 1980, and was thus aged twenty at the time of the offence.  He came before the Children’s Court in August 1997 for driving offences, and two counts of being carried in a conveyance without consent.  On 6 August 1998 the appellant was convicted of break, enter and steal and other offences.  On 26 March 1999 he was sentenced in the District Court to a fixed term of three years for robbery while armed with a dangerous weapon, a fixed term of two years for steal from the person, a fixed term of three years for entering a dwelling with intent to steal, a fixed term of three years for breaking and entering a building to steal, and a minimum term of four years six months, with a non-parole period of two years for assault with intent to rob and wound.  All the sentences were concurrent, with a non-parole period expiring on 7 February 2003.

15.On 15 April 1999 he was sentenced in the Children’s Court for dishonesty and drug offences, but the penalties for these were subsumed in the District Court penalties, and have been served.

16.The judge accepted that the pleas of guilty were entered at a very early stage.  The judge noted that, apart from the admissions, there would have been an issue as to identification.  Thus the admissions and the plea had value.  The judge reduced the sentence, not only on the basis of the utilitarian value of the plea, but also because it evinced remorse and contrition.  The judge accepted that the applicant’s apology to the victims and expressions of remorse were genuine.

17.The judge found that the applicant had a serious drug problem and thought that this may, to a large extent, serve as an explanation for the offences which he had committed.  The judge found that the applicant appeared to be motivated towards obtaining some assistance for his drug problems, and that he would like to participate in a residential program of rehabilitation.

18.While the applicant had previously been ambivalent towards rehabilitation, the judge thought that he was motivated in that direction.  He had done some relevant courses in gaol.

19.The judge accepted that the applicant had had a disturbed and traumatic family background.  However, at one stage he did have some support from his five sisters.  His mother died in 1999 and this upset him.  His relations with his father and brothers were poor. The judge accepted that the applicant started using drugs and offending from the time of his parents’ separation in 1997/98.  The applicant spent a great deal of money on drugs.

20.The applicant left school at the age of thirteen in year 8.  He was eventually expelled for truanting.  He worked as a carpenter’s assistant with his father, until he was gaoled.  The judge found special circumstances, remarking that there was a strong case for so finding.  The judge considered that the prospects of rehabilitation would be greatly enhanced by the applicant’s early release, but reminded himself of the need to ensure adequate punishment which reflected the objective seriousness of the offences and of the need for general deterrence.

21.The judge commenced the sentences for robbery in company (taking into account the Form 1 matters) and steal motor vehicle from 1 November 2002.  The non-parole period for the earlier sentences expired on 7 February 2003.  However, that will have to be extended to 21 February 2003 because of the period of fourteen days during which the applicant was absent from gaol as an escape.

22.By reason of the judge backdating the sentences to 1 November 2002, the applicant obtained a benefit of three months and one week. 

23.The Crown stressed that it was an aggravating feature that the offences of January 2001 were committed while the applicant was an escapee.  That is correct.

24.The thrust of the submissions for the applicant is that by the time the applicant is eligible for release on parole on 30 April 2006 he will have been in gaol continuously since 8 August 1998, apart from the two weeks he was at liberty because of his escape, that is, seven years eight months one week, taking into account the two weeks earlier mentioned.

25.That, it was submitted, was excessive for a young man who was gaoled when aged eighteen.  This point does not seem to have been taken before the judge.  The applicant has not had much of a chance to embark upon rehabilitation.  A period of seven years eight months one week in gaol, and a non-parole period of eighteen months is out of proportion, and especially so for a young offender.

26.The Crown stressed that the sentences imposed by the judge for robbery in company and stealing were lenient.  The Crown pointed to the accused’s record to the serious offences taken into account.  They rightly resulted in a real increase in the sentence that would otherwise be imposed for the robbery in company. There was a need for specific deterrence for offences of dishonesty.  I am not persuaded that these sentences were other than correct.

27.The Crown submitted that the non-parole period of three years meant that the applicant received a benefit from the finding of special circumstances, namely, nine months.  That is true but it only applies to the sentence of 5 years and does not take the earlier sentences into account.

28.The Crown contended that the sentence of six months for the escape was lenient.  I agree.  The usual sentence for an unremarkable first escape from gaol is of the order of two years.  The sentence could be justified as an application of the principle of totality.

29.In answer to the applicant’s submission that the sentence resulted in a disproportionately long time in gaol, and an insufficient period on parole, the Crown contended that the objective seriousness of the offences warranted sentences of no less duration than those imposed, and were lenient.  The real problem lies in the effective non-parole period.

30.Because of the overlapping of the sentences earlier mentioned, the effective non-parole period was about twenty-one months.  That is a little below the usual proportion of three to one.  For a young offender, the effective non-parole period is high.  What troubles me is that there is no consideration of the effect of the combination of the sentences of 26 March 1999 and those imposed by the judge, particularly as to the non-parole period. That constitutes a mistake.

31.The non-parole period has to be reviewed.  The applicant has filed an affidavit setting forth the difficulties which he has experienced in custody in various correctional centres.  He has spoken of the assaults which he has undergone. He has been placed in protection.  He says that he has already found his time there to be more difficult.  He has found that there is quite a deal of racism from others against Lebanese.  He complained that he was also locked in more than he was before, and that he has not been able to obtain a job.

32.He has had almost no contact with his family and it was not until about three weeks ago that he had his first visit from his brother Sam, since 1998.  His other two brothers are serving long gaol sentences in the Goulburn Correctional Centre, and naturally he has no contact with them. His sisters are all married and lead their own lives.  They do not visit him.  The affidavit paints a picture of a very lonely young man in difficult circumstances, and that is going to make rehabilitation more difficult.

33.The offences were serious and merited a stern punishment; nevertheless for a young offender a longer period on parole should have been fixed.  I would not disturb the head sentence, but I do regard the non-parole period as erroneously too long, given the accumulation of the sentences.  I would reduce the non-parole period by six months on the sentence for robbery in company.

34.I would propose the following orders:

1.Leave to appeal against sentence granted.

2.Appeal against sentences allowed in part.

3.As to the sentence for robbery in company, commencing 1 November 2002 and expiring on 31 October 2007, dismiss the appeal against the sentence of imprisonment.  

Vary the non-parole period of three years, to 2 years 6 months to commence on 1 November 2002, and to expire on 30 April 2005.

4.Dismiss the appeals against the sentences on count 2, steal motor vehicle, and the sentence on count 3, escape from lawful custody, but pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999, vary the date of commencement of the sentence of six months imprisonment fixed term for escape from lawful custody to commence on 1 May 2005 and expire on 31 October 2005.

35.DOWD J:   I agree.  The parties are directed to bring in Short Minutes of the orders to avoid any mistakes or confusion.

(Later, on the parties bringing in Short Minutes, the Court made               these orders in accordance with such minutes)

ORDERS

1.Leave to appeal granted.

2.Appeal allowed in part as follows.

3.Confirm the sentence regarding the robbery in company offence (taking into account the Form 1 matters) of 5 years dating from 1 November 2002 but vary the non-parole period to a period of 2 years 6 months dating from 1 November 2002 and expiring on 30 April 2005.

4.With regard to the sentence for escape lawful custody, vary the commencement date [pursuant to s,59 of the Crimes (Sentencing Procedure) Act] to commence on 1 May 2005 and expire on 31 October 2005. 

5.The applicant is eligible for release to parole on 1 November 2005  

6.Confirm the sentence of 12 months fixed term on the count of steal motor vehicle to date from 1 November 2002.

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LAST UPDATED:               03/06/2002