R v Mohamed

[2019] NSWDC 372

District Court

New South Wales

Medium Neutral Citation:

R v Mohamed [2019] NSWDC 372

Hearing dates:

15 July 2019

Date of orders:

15 July 2019

Decision date:

15 July 2019

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

(1) The offender is sentenced to imprisonment for seven months. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999 the Court directs that the sentence be served by way of Intensive Corrections Order for seven months commencing today 15 July 2019 and is subject to the mandatory conditions prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 (NSW) and s 73(2) Standard Conditions of that Act as well as the following additional conditions pursuant to s 89 of that Act:
(a) A community service work condition requiring the performance of community service work for 100 hours undertaken at not less than 20 hours per month as directed by Community Corrections.
(b) The offender is prohibited from visiting points of departure from Australia including international airport terminals.
(c) The surrender of his passport is to remain with New South Wales Police Force for the duration of his sentence.
(d) He is to submit to supervision by Community Corrections for as long as that Service considers appropriate; and
(e) He is to report to Parramatta Corrections Office on 16 July 2019 at 10.00am.

Catchwords:

Sentence for breach of bond – suspended sentence; Intensive Corrections Order

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)

Cases Cited:

R v De Simoni (1981) 147 CLR 383; [1981] HCA 31.

Category:

Sentence

Parties:

Mr Ramy Mohamed (Accused)

  The Crown

Representation:

Solicitors:

 

Ms C Wheatley (NSW DPP)

  Mr P McGirr (McGirr Lawyers)

File Number(s):

2015/215178

Publication restriction:

N/A

Judgment

1. On 8 March 2018 I sentenced Mr Mohamed on his plea of guilty for an offence under s 350 of the Crimes Act 1900 (NSW), being an accessory after the fact to the serious indictable offence of demanding money with menaces and with intent to steal; s 99 of the Crimes Act 1900 (NSW). Of course, in accordance with the De Simoni case principles he was sentenced for his s 350 offence only. The circumstances of that offending are set out in my Judgment on 8 March 2018. It is worth commenting, however, that I referred to the criminality of his role as that of a foot solider.

2. At paragraph 25 of my judgment, I noted that no local, suitable community service work was available. It was for that reason that ultimately his sentence to ten months’ imprisonment was suspended pursuant to the provisions of s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) on his entering into a good behaviour bond for ten months. At sentencing, the Crown, but for the unavailability of community service work, supported an Intensive Corrections Order. At paragraph 26, I assessed the objective seriousness of his criminality at the lower range, and lower than that of his co-offender, Houry.

3. It was noted in my reasons for judgment that the offender failed to cooperate with police. He misled them as to his address and in particular he was apprehended at Sydney International Airport on the evening of 22 July 2015 at a time when he was to attend upon police on 23 July 2015.

4. These last facts are of particular worth of consideration in the circumstances which bring him before the Court today. On 8 March 2018, he was ordered to accept the supervision of Community Corrective Services, but he did not do so.

5. On 12 March, he attended Castle Hill Police Station where he asked for a return of his passport as well as money and phones in the possession of police. As the 28-day period for appeal had not passed, he was provided only his passport. He says in evidence today that he told police that he was to travel overseas.

6. On the same day, he attended the Criminal Registry of the District Court at Parramatta. He had been ordered to report any change of address at that place. He says today that he attended and notified the registry that he intended to travel Egypt and was told that the Registry did not need that information.

7. On 28 March, he organised for flights to Egypt to be booked. On 1 April 2018 he departed Australia for Egypt and he did not return until 29 March 2019. In other words, he was out of the jurisdiction and in Egypt for a period of approximately 12 months.

8. On 8 March 2018, he had been sentenced to imprisonment of ten months, as I say, suspended pursuant to s 12, and the good behaviour bond was for ten months. Therefore, effectively, his punishment by way of sentence in this Court had expired on 7 January 2019 in his absence. The Community Corrections Service breached him for his failure to report, and in consequence of that breach, a warrant was issued.

9. A few days after his return to Australia on 29 March 2019, he attended Castle Hill Police Station in order to recover the money and the phones. When he did so, he was arrested on the warrant and he spent one night in gaol. The next day, the date of which is not precisely important, he was granted bail and he has remained on bail and compliant with his bail for approximately three and a half months. There is no evidence before the Court of his offending whilst in Egypt.

10. The offender gave evidence today and was ably cross-examined by the Crown. His evidence was given with the assistance of an interpreter and it was the Court’s observation, particularly as the transcript would show was noted at one point, that the interpreter performed her task precisely as required; that being to translate from the English language into Arabic what was said, as it was said, and from Arabic spoken by the offender into the English language, as and when he spoke it. It was plain to the Court that she was an interpreter who did not fall into that error of listening to a whole question or a long passage of speech and thereafter conveying an understanding.

11. With the assistance of such excellent interpretation, I had an opportunity to observe the offender, my concern in principle being to assess the extent to which his actions reflected a conscious focus or respect for the integrity of the orders of the Court and as to why it was he breached his bond by failure to report.

12. It is of course significant that the breach was not the consequence of further criminality. There is no additional criminality to be considered by way of sentence consequent of the breach.

13. The offender is now 35 years of age. He says that on 8 March 2018 the interpreter did not explain to him that he was not allowed to travel. During examination in chief he agreed that he understood, by answering “yes”, sufficiently when he made that response to my explaining to him on 8 March 2018; that in the event his breach of the terms of his sentence he would come before the Court and could go to gaol.

14. He says in essence that the interpreter did not explain to him that his good behaviour was to be supervised by Community Corrections. He says that he did not understand that he was to report to Community Corrections and that he was not to travel out of the jurisdiction. He gave evidence that when he attended Castle Hill Police Station after sentence to obtain his passport he was assisted by a friend who spoke more English than he did. He said in evidence that words were spoken to the effect of “I need my passport to travel”.

15. As I understood his evidence, it was his custom to visit his wife who was in Egypt and his ill mother who was in Egypt regularly and that was the purpose of his travel. He has applied for his wife to be permitted to immigrate to Australia on two occasions, he is presently awaiting the outcome of the second application. The first application was unsuccessful. Importantly he said in evidence that “Australia is my country, I live in Australia”.

16. This is important because pursuant to s 69 of the Crimes (Sentencing Procedure) Act an Intensive Corrections Order, which I will come to consider, would not be available to him were he not intending to remain within the jurisdiction. He presently lives with his sister and brother‑in‑law and a niece in Auburn. He works fulltime, 36 to 38 hours per week, as a trolley collector. When I sentenced him on 8 March 2018 part of the evidence tendered on his behalf was an excellent employment reference from his then employer.

17. His duties then also were trolley collection and he was then employed on a full-time basis. He had been employed full-time for a substantial period at the time of offending. In cross‑examination today it was properly put to him effectively that he had previously been untruthful to the police in regard to which I have already referred and that he was stopped at the international airport on 22 July 2015. After a moment’s hesitation in evidence he did not dispute the question put that he was trying to avoid police.

18. He answered in effect that he had made a mistake and he was not going to make the mistake again. He also conceded during cross‑examination that he understood that the ten months of the sentence would expire whilst he was overseas. He did not ask for advice from anyone to confirm that his going overseas, as he did do, would be permitted, given the sentence. In my view the obtaining of his passport, as he did, and travelling, as he did, out of the jurisdiction for the period of the sentence and then some, was opposite the obligation of supervision which he says he did not fully understand, following it being interpreted to him.

19. The evidence in my opinion amounts to a failure to employ a focus which the community is entitled to assume will be applied by individuals even if they do not have an excellent grasp of the English language; which focus ought properly be based upon a respect for the integrity of the orders of the Court.

20. In my view, even accepting the evidence given today, the breach of bond was neither trivial nor was there good reason for it and there is no good reason to excuse the breach. Pursuant to s 98(3) of the Crimes (Sentencing Procedure) Act I revoke the bond. I accept for the purposes of s 69 of the Crimes (Sentencing Procedure) Act that the offender intends to reside within the jurisdiction. The offender has effectively avoided the punishment which was ordered on 8 March 2018.

21. A sentencing assessment report dated 9 July 2019 records the officer’s assessment that the offender is willing to undertake intervention. It records the offender’s expressed willingness to undertake community service work and it assesses him as of a low risk of reoffending. It does not recommend any conditions and it assesses him as suitable to undertake community service work. The report indicates that Community Corrections can provide the equivalent of up to 21 hours of work per month.

22. The offender is to be given credit for the three and a half months compliance with his bail and that he has been of good behaviour in that period as well as for the one night in gaol. In my judgment of 8 March 2018 I assessed the offender as having passed the s 5(1) threshold and that his offending warranted imprisonment of ten months. He remains suitable for sentence by Intensive Correction Order. Allowing for the credit on account of his good behaviour and for his having been subject to the bond since 8 March 2018 in my assessment the appropriate term of the Intensive Corrections Order is seven months. The offending, in my opinion, warrants community service. As my Judgment of 8 March 2018 referred, community service work would have been ordered at that time had it been available to do so.

23. The orders of sentence I make are as follows:

1. The offender is sentenced to imprisonment for seven months. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999 the Court directs that the sentence be served by way of Intensive Corrections Order for seven months commencing today 15 July 2019 and is subject to the mandatory conditions prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 (NSW) and s 73(2) Standard Conditions of that Act as well as the following additional conditions pursuant to s 89 of that Act:

1. A community service work condition requiring the performance of community service work for 100 hours undertaken at not less than 20 hours per month as directed by Community Corrections.

2. The offender is prohibited from visiting points of departure from Australia including international airport terminals.

3. The surrender of his passport is to remain with New South Wales Police Force for the duration of his sentence.

4. He is to submit to supervision by Community Corrections for as long as that Service considers appropriate; and

5. He is to report to Parramatta Corrections Office on 16 July 2019 at 10.00am.

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Decision last updated: 31 July 2019