R v Najem

[2008] NSWCCA 32

New South Wales
Court of Criminal Appeal

CITATION:	R v NAJEM [2008] NSWCCA 32
HEARING DATE(S):	16 October 2007
JUDGMENT DATE:	6 March 2008
JUDGMENT OF:	Beazley JA at 1; Hulme J at 2; Latham J at 64
DECISION:	Allow the Crown appeal Quash the sentences imposed by Sweeney DCJ in respect of counts 1 and 2 In respect of count 1, sentence the Respondent to imprisonment for a non-parole period of 4 years commencing on 7 September 2006 together with a further period of 3 years commencing on 7 September 2010 In respect of count 2 sentence the Respondent to imprisonment for a non-parole period of 3 years commencing on 7 September 2005 together with a further period of 1 year commencing on 7 September 2008 Record as the first date upon which the Respondent will become eligible for parole, 7 September 2010
PARTIES:	Regina Mark Dean NAJEM
FILE NUMBER(S):	CCA 2007/3149
COUNSEL:	Crown: Mr G Rowling Respondent: Mr B Webb
SOLICITORS:	Crown: S Kavanagh Respondent: Elias Tabchouri
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0866
LOWER COURT JUDICIAL OFFICER:	Sweeney DCJ

- 19 -

2007/3149

BEAZLEY JA
HULME J
LATHAM J

Thursday 6 March 2008

R v Mark Dean NAJEM

Judgment

1 BEAZLEY JA: I agree with Hulme J.

2 HULME J: On 25 May 2007 the Respondent to this Crown appeal was sentenced by Sweeney DCJ on 3 counts, viz.-

(1) That between 10 October 2004 and 9 December 2004 he conspired with Gabriel Zakhem, Adam Douglas Awit, Fouad Sassine and other persons to maliciously inflict grievous bodily harm upon Andrew Lyons with intent to do grievous bodily harm to Andrew Lyons.
(2) On 3 December 2004 he possessed a prohibited pistol, not being authorised to do so, and
(3) On 3 December 2004 he resisted Detective Senior Constable Hawkins in the execution of his duty.

3 The maximum penalty for count 1 is at large but the maximum penalty for the substantive offence of maliciously inflict grievous bodily harm with intent to inflict grievous bodily harms is, pursuant to s33 of the Crimes Act, 25 years.

4 The maximum penalty for the offence the subject of count 2 is, pursuant to s7 of the Firearms Act, 1996, 14 years imprisonment. Pursuant to s 54A et seq. of the Crimes (Sentencing Procedure) Act, that offence has a standard non-parole period of 3 years imprisonment. The maximum penalty for the offence the subject of count 3 is 5 years imprisonment.

5 The sentences imposed by her Honour were:-

Count 3 - imprisonment for a fixed term of 6 months commencing on 7 September 2005.
Count 2 – imprisonment for a non-parole period of 2 years from 7 September 2005 and an additional term of 1 year.
Count 1 – imprisonment for a non-parole period of 2 years commencing on 7 September 2006 with an additional term of 3 years.

6 Thus the effective sentence imposed on the Respondent included non-parole periods totalling 3 years and an additional term of 3 years.

7 The circumstances of the Respondent’s offending appeared in a statement of Agreed Facts. Accordingly, the Respondent’s situation is to be approached on the basis of that evidence irrespective of whatever information may be before the Court in an appeal by Mr Elzakhem (sometimes referred to as “Zakhem”), whose sentences are the subject of another Crown appeal heard on the same day as the Crown appeal relating to this Respondent. In summary the circumstances of the Respondent’s offending were as follows.

8 Zakhem was the owner of G & T Hairdressing Supplies Pty Ltd (hereinafter referred to as G & T). The company was involved in the importation and selling of hairdressing products. Following discovery by police that an organisation Beautopia was to be targeted by Zakhem for some retribution and that an Adam Awit (otherwise known as “Ellias”) was involved, the latter’s telephone was the subject of lawful inception.

9 On 1 and 2 December 2004 Najem and a co-offender Sassine conversed with Adam Awit and told him they had attended “Beautopia to light a fire at its premises and harm Lyons the owner but were unable to do so because the premises were closed and unoccupied.” During an intercepted call Najem informed Awit that they intended to return to carry out the offences of 3 December 2004.

10 Also on 1 December police surveillance revealed Sassine’s motor vehicle in the vicinity of Beautopia’s premises and its 3 occupants walking nearby.

11 On the evening of 3 December two police officers posing as employees of Beautopia occupied its premises. At about 9.25 that night Sassine’s vehicle parked nearby. Another co-offender Duncan dressed in a dark jumper with the hood pulled over his head, and Najem entered a rooftop carpark above Beautopia. Najem was armed with a fully loaded 9mm CZ semi-automatic pistol and took up a position as a lookout on the rooftop.

12 Duncan moved to outside the front of the premises and appeared to be making observations. He walked back to the rooftop carpark and then returned to the front of Beautopia. He was holding in his hand a shortened .22 calibre bolt action rifle loaded with a magazine. Duncan approached the front door which was open, but a steel security door remained locked. Duncan knocked, one of the police officers, Detective Sergeant Phillips approached, and Duncan asked him “Do you own the Rav 4” (a vehicle of this description was parked nearby). Shortly after this Duncan discharged a shot towards Detective Sergeant Phillips’ leg, the shot just missing a knee. Duncan then fled.

13 At about the same time Najem was sighted on the rooftop carpark and was called upon by the police to stop, but ran off pursued by the police. He climbed over a railing fence and jumped down a distance of some 6 to 8 m being apprehended soon after landing. The fully loaded pistol was located on the ground next to him. Sassine, who was the getaway driver, was arrested after trying to drive around a police vehicle.

14 Judge Sweeney drew the inference that Najem was to receive some benefit from a sum of $10,000 that had been provided by Zakhem to Vincent Awit (another conspirator) although her Honour was unable to quantify the amount. Her Honour also drew the inference that Najem knew that Duncan was intending to use the rifle in the attack. While accepting that Najem’s role was serious, her Honour described his role as at the lower reaches of the conspiratorial heirarchy

15 So far as the second offence is concerned, her Honour said that the fact the pistol was loaded and in Najem’s possession at the scene of the carrying out of the conspiracy, and available for use, led to the conclusion that that offence was in the middle range of seriousness. Her Honour said that she accepted the distinction made by the Crown that the situation was different from one where a pistol is simply under a bed, unloaded.

16 Her Honour assessed that the third offence was at the low end of those constituting resistance to a police officer. In fact no evidence was put before her Honour as to the extent of the resistance or indeed, apart from the Respondent’s plea, as to the fact of resistance.

Subjective circumstances

17 Najem was born in November 1980. His antecedent report records that in November 2001 he was fined and disqualified for driving whilst his licence was suspended. In June 2002 he was fined for offences of driving an unregistered and uninsured vehicle whilst disqualified, driving a vehicle displaying a misleading number plate and being in possession of a motor vehicle suspected of being stolen. The period of disqualification was increased. In March 2003 he was fined for a similar series of offences and again the period of disqualification increased. He was also placed on a 2 years s9 bond at that time. In February 2004 he was sentenced to 12 months periodic detention, a sentence confirmed on appeal when it was ordered that the sentence should commence on 24 July 2004. In May and October 2005 respectively, he was charged with and convicted of larceny and maliciously damage or destroy property.

18 Following the Respondent’s arrest on 3 December 2004, the Parole Board revoked the periodic detention order and directed that he serve a non-parole period of 9 months and 3 days. This period expired on 6 September 2005 and thus it was that her Honour directed that the Respondent’s sentence commence on 7 September 2005.

19 Although accepting that the fact that the Respondent was on conditional liberty pursuant to the s9 bond at the time of the subject offence was an aggravating feature, her Honour rejected a Crown submission that the fact that there was a periodic detention order current at the time also amounted to conditional liberty.

20 Her Honour said that she gave the Respondent a discount of 20% for his plea of guilty. He had been committed for trial on 30 August 2005. Negotiations with the Crown commenced in March 2006, the Respondent’s solicitors communicated to the Crown an offer to plead guilty to the 3 charges in April and the Respondent’s plea was entered in the District Court on 29 May 2006, his trial having been fixed to commence on 28 August.

21 Before her Honour, the Respondent mounted a substantial subjective case, largely through the evidence of a Mr Timothy Watson-Munro, a psychologist who impressed her Honour. In Mr Watson-Munro’s hearsay evidence her Honour accepted it appeared that in 1990 when the Respondent was 10 an aunt, while in the throes of some mental illness, killed her own daughters and the Respondent’s mother. In 1991 the Respondent’s father returned to Lebanon taking the Respondent, who did not speak Arabic, with him. The Respondent found it difficult to settle there and although he completed his schooling in Lebanon, he returned to Australia in 1997. The only people to live with in this country were the aunt, who had by then been released from custody, and her husband. The Respondent then completed part of an apprenticeship and otherwise worked until injured in a car accident. In the accident he badly damaged 2 fingers and according to Mr Watson-Munro’s report, could not continue working. The report continues:-

“It was against this backdrop that he then experienced a recrudescence and aggravation of his underlying psychological problems, which was compounded by him drifting into as he described it ‘the wrong crowd’. It was in this setting that the current offences occurred.”

22 Mr Watson-Munro opined that after the Respondent’s mother’s death he developed symptoms of post-traumatic stress disorder, compounded by the stress of moving to Lebanon when he could not speak the language and the car accident. The post-traumatic stress disorder led to depression, anxiety and low self-esteem making the Respondent vulnerable to negative peer group influences from a wrong crowd to whom the Respondent had drifted. In Mr Watson-Munro’s view, it was surprising that the Respondent had not resorted to alcohol or drug use and the disorder affected the Respondent’s judgment at the time of his offending.

23 However, Mr Watson-Munro also said that the Respondent would have known what he was doing and understood the gravity of it and, given the circumstance of the loss of his mother, it could have been expected that the Respondent would have been acutely aware of the effect of violence on others. Asked if he had discussed with the Respondent any reason why he may have obtained the pistol with him at the time of arrest, Mr Watson-Munro said:

“… this is something I pressed him on and I have to say he didn’t give me any answer that I’d be satisfied with. He was very vague on that.”

24 Her Honour accepted evidence from Mr Watson-Munro that there is treatment available for the Respondent’s condition, that the Respondent would probably respond to such treatment so as to indicate prospects of success and to justify a finding of special circumstances and the extension of the balance of term at the expense of the non-parole period. Referring to this Court’s decision in Wright (1997) 93 A Crim R 48, her Honour also said that she would moderate the head sentence slightly to take account of the post-traumatic stress disorder.

25 Her Honour remarked that because the Respondent had been older (than Sassine and Duncan) and on conditional liberty at the time, the starting point for his sentence – her Honour probably meant that on the conspiracy charge – should be higher than in the case of the other two. She observed that the Respondent’s record contained no prior offences of violence “so that these offences were out of character, which bodes positively for Mr Najem’s prospects of rehabilitation, provided he undertakes the treatment which Mr Watson-Munro says he requires”. That treatment consisted of “detailed psychotherapy, coupled to specific social skills training to help improve upon his low self-esteem and his propensity at times to be easily led by others”. Her Honour regarded the Respondent as contrite. She found in matters to which I have referred, special circumstances.

The Appeal

26 In this Court the thrust of the Crown submissions in aid of the contention that the sentences imposed were manifestly inadequate was that they did not reflect the objective character of the Respondent’s offending, that her Honour had erred in the case of the second offence in making no finding where the offence lay in terms of its objective seriousness – see R v AJP (2004) 150 A Crim R 575, R v Tory [2006] NSWCCA 18 at [41] - that she had allowed undue weight to the Respondent’s subjective circumstances and had failed to accumulate the sentence on the third offence despite the additional criminality involved in it.

27 That last submission is easily dealt with. There was so little material before her Honour as to the circumstances of resisting police offence that no error in the exercise of her Honour’s discretion not to accumulate has been shown. The contention that her Honour made no finding where the second offence lay in terms of its objective seriousness is also easy to dispose of. At page 7 of the remarks on sentence her Honour assessed this offence as in the mid-range of seriousness.

28 There is more substance in the other submissions. Contract killings have not uncommonly been regarded as falling within, or at least close to, a worst category of murder - Kalajzich (1997) 94 A Crim R 41 at 52; King (1998) 99 A Crim R 288 at 292; R v Lewis [2001] NSWCCA 448 at 69; R v Glasby [2000] NSWCCA 83 at [138] et seq. While the conspiracy here was not to murder but to inflict grievous bodily harm, the factors of premeditation, cold bloodedness, calculated risk versus gain, and repudiation of standards of decency and civilised behaviour are common to both types of offence and argue for the conclusion that the Respondent’s offence was high on any relevant scale.

29 The evidence of the type of grievous bodily harm contemplated by Najem is by no means comprehensive. Given Najem’s knowledge of the only weapon carried by Duncan, it should be inferred he contemplated its use though, because of the risks of a shot to the head or body, probably not shooting in those areas. It would not be unfair to Najem to infer that he contemplated Mr Lyons would be shot through a leg as Duncan in fact sought to do. It would be absurd to think that the 2 had not discussed what was to occur and I would certainly infer to the criminal standard that the grievous bodily harm contemplated by Najem extended to such injury and the potential permanent crippling of the intended victim. Alternatively, Najem was content to leave it to Duncan to wreak whatever damage, consistent with grievous bodily harm, he chose.

30 Dedication to the criminality undertaken was also a feature of the intended implementation of the conspiracy. Circumstances not being propitious on the first or second of December, the Respondent and his co-offenders - assailant, look-out and getaway driver - resolved to return to Beautopia’s premises on the third of December and did so.

31 Of course, the Respondent is entitled to recognition of the fact that, despite his endeavours, no bodily harm was in fact done to Mr Lyons, and to a lower sentence than would have been appropriate had such injury occurred but the matters to which I have referred mean that his criminality was far higher on the scale than the sentence of 5 years including a non-parole period of 2 years recognises, and this even when full weight is given to the factors arguing in mitigation. Putting to one side for the moment the non-parole period upon the basis that it was not only affected by her Honour’s conclusion that there were special circumstances but possibly also by considerations of totality, when account is taken of the 20% discount his Honour allowed for the Respondent’s plea, her Honour’s starting point must have been 6 years and 3 months, but one quarter of the guide of 25 years maximum penalty provided for by s33, albeit that penalty is for an offence that has actually resulted in grievous bodily harm.

32 Such a starting point and the head sentence imposed are manifestly inadequate to reflect the criminality of an offence having the characteristics to which I have referred and which, had its object been achieved, was not unlikely to leave Mr Lyons at least permanently crippled. Nor do I see in the explanations of Mr Watson-Munro much by way of mitigatory explanation. Post-traumatic stress disorder, depression, anxiety, low self-esteem and vulnerability to negative peer group influences provide little excuse for someone who would have known what he was doing and understood the gravity of it and who was at an age where, even without the death of his mother, must have been well aware of the effect of violence on others.

33 Premeditated violence, particularly premeditated violence committed for reward, and leading to grievous bodily harm is something no civilised community can tolerate. Considerations of general deterrence and retribution demand that a penalty for those who pursue such activities be high. The Respondent was on conditional liberty at the time of his offence, a circumstance which the authorities indicate is substantially aggravating. Subject to any considerations of parity, her Honour’s starting point for the conspiracy offence should not have been less than 10 years.

34 I turn to the Respondent’ offence of being in possession of a prohibited pistol without being authorised to do so by permit. It is appropriate to recognise that the statutory provision encompasses conduct which falls below and well above the mere unauthorised possession of a prohibited pistol.

35 Section 7 of the Firearms Act makes it an offence to possess or use the weapons to which it refers but it does not seem to me to be possible to conclude, at least in the abstract, that one of these concepts is likely to be worse than another. It must be recognised that the range of weapons encompassed by s7 are those answering the description “a prohibited firearm or pistol”. Given that the Act refers to “pistol(s)” and “prohibited pistol(s)” it is not immediately clear whether non-prohibited pistols are within the section although that issue does not arise in this case. The terms “pistol” and “prohibited pistol” are defined in s4 and s4C, the difference between the two lying primarily in calibre and length.

36 “Prohibited firearms” are defined in s4 and Schedule 1 to the Act as including cannons, machine guns, sub-machine guns and many other military weapons. Other things being equal, the possession, let alone use, of such weapons might fairly be regarded as far worse than possession of a mere pistol or prohibited pistol, terms defined in s4 and s4C.

37 On the other hand there are events or circumstances constituting an offence under s7 which are or are likely to be appreciably less serious than many cases of mere possession. An example would be use of a firearm by a friend of person licensed, in an isolated area shooting at tins.

38 Any judgment as to the appropriate penalty to be imposed in respect of the offence the subject of the second count has also to cope with the fact that there are, at least on first impression, two irreconcilable standards against which that offending has to be measured. As has been said, the maximum penalty for the offence is 14 years, yet the standard non-parole period is 3 years. The effect of ss 54A and 54B of the Crimes (Sentencing Procedure) Act is that, for an offence in the middle range of objective seriousness, a court is required to impose the standard non-parole period unless there are reasons for not doing so.

39 One would fairly have expected that the standard non-parole period for an offence in such mid-range to be of the order of half of the maximum. Nothing in the Explanatory Memorandum to the Bill that led to the enactment of these sections or the Ministers’ Second Reading speeches when introducing the Bill provides any assistance in answering the quandary.

40 It is appropriate to have regard to the rationale behind the statutory provision against which the Respondent offended. That rationale includes at least a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others rights.

41 The facts of this case provide a prime example of at least some of the evil against which s 7 of the Firearms Act is directed. The Respondent had possession of the pistol at the scene of an intended violent crime, a crime that was liable, even if possibly unlikely, to attract attention. The pistol was loaded, presumably so that it could be readily used to threaten or shoot others, including possibly police officers, if Najem thought his interests were being sufficiently threatened. The occasion and any pursuit that followed was liable to be charged with adrenalin and instinctive or at least not well considered action. Najem’s possession of the weapon raised the stakes, at least so far as he and anyone who might have sought to interfere was concerned, greatly.

42 Sweeney DCJ was undoubtedly correct in implicitly accepting that the fact the pistol was loaded and in Najem’s possession at the scene of the carrying out of the conspiracy, available for use, rather than simply under a bed, unloaded, exacerbated Najem’s criminality. However, her conclusion that this resulted in the offence being in the middle range of objective seriousness was to substantially underrate the effect of these factors.

43 Acknowledging that her Honour allowed a discount of 20% for the Respondent’s pleas of guilty, against the statutory maximum of 14 years, his deliberate decision to acquire possession of the pistol and have it in a loaded state at the scene of what he intended to be a serious crime, merited a sentence much higher than 3 years including a non-parole period of 2 years, a sentence that was manifestly inadequate.

44 Given the fact that the Respondent was on conditional liberty at the time, subject to any considerations of parity, her Honour’s starting point for the pistol offence sentence should not have been less than 7 years.

45 I may add this. In selecting the starting points I have obviously given some weight to the maximum penalties provided by the statutory provisions to which I have referred. It has also to be borne in mind that, for the reasons I stated in R v Spiteri [1999] NSWCCA 3 at [39], the severity of sentences is not simply proportional to length. Longer periods in custody are liable to have an impact much greater than their increase in length.

Parity

46 The sentences imposed (or in the case of Zakhem, intended, Toner J having erred in the implementation of his intention) on the Respondent and his co-offenders in the conspiracy offence, the discounts allowed in arriving at those sentences and the notional starting points by adding back those discounts are summarised in the following table:-

Full term	NPP	Plea/assistance Discount	Starting Point
Zakhem	Toner DCJ – 14/5/07	9y 6m	4y 1m	20%	12 y
VAA	CCA – 3/3/06	5y	3y	62.5%	13.3y
Ellias	Solomon DCJ – 16/2/07	7y	4y	25%	9.3y
Duncan	Sweeney DCJ – 23/2/07	5y	3y	10%	5.5y
Sassine	Sweeney DCJ – 4/5/07	5y	3y	15%	5.9
Najem	Sweeney DCJ 25/5/07	5y	2y	20%	6.25

47 Zakhem was the principal who would have primarily benefited from the attack on Mr Lyons and whose idea it was to attack the latter. Zakhem had no prior record but was not regarded as having good prospects of rehabilitation. Some allowance was made for his psychological state. He was about 46 at the time of the offence.

48 VAA was the person Zakhem engaged to organise the attack on Lyons, the two contemplating that a baseball bat or knife would be used. VAA in turn engaged Ellias and the 2 inspected the premises of Beautopia. Originally VAA had been sentenced for the conspiracy offence to a full term of 6 years, the judge forgetting to take Form 1 offences into account. The 5 year term was substituted on a Crown appeal after the Form 1 offences were taken into account and this even though the Court made no finding that 6 years was excessive. There were variations made in other sentences and, although the Court did not say so, the reduction may have been due to considerations of totality. VAA was about 45 at the time of the offence. His upbringing was unremarkable. He had for some periods been addicted to drugs. He gave evidence that he felt under certain cultural loyalty to Zakhem who was described as a very manipulative person, evidence that derived some support from a psychologist who referred to VAA’s vulnerability to being overborne by someone like Zakhem. VAA gave evidence that some of his offending was because he was under threat from Zakhem if he did not. It appears that these matters were taken into account.

49 Ellias was engaged by VAA and inspected the premises of Beautopia with the latter. VAA had been asked by Zakhem to injure Lyons’ legs with a baseball bat sufficiently to require Lyon’s hospitalisation. Ellias enlisted Sassine and Najem. In a phone conversation on 1 December Sassine informed Ellias that he had found someone who was ready to “fix his (Lyon’s) legs”. The sentencing judge found that Ellias was heavily influenced by VAA whom he regarded as a father figure. Ellias’ criminality in respect of the conspiracy offence was regarded as equal to that of VAA. He had a criminal record which included minor drug offences, one offence of goods in custody and 2 offences of possessing an unregistered firearm. This record was worse than VAA’s. Ellias was regarded as contrite. Ellias’ age was not stated in the report beyond that he was over 30. Judge Solomon gave express recognition to the fact that the sentence imposed on VAA had been reduced by the Court of Criminal Appeal in the course of a Crown appeal but gave no reason why the sentence imposed on Ellias was, when account was taken of the discounts, effectively less than that imposed on VAA.

50 Duncan was recruited by Sassine after instructions or requests were passed from Zakhem to VAA, VAA to Ellias and Ellias to Sassine. He undertook the asignment to pay off a drug debt of a couple of hundred dollars to Sassine. He was provided with the gun and fired the shot at Detective Phillips. Duncan was intoxicated by drugs at the time and the judge accepted that it was the effects of ice, probably combined with a lack of impulse control, that caused him to act as he did, and which was out of character. He had prior criminal history, mainly for break and enter offences associated with drug use. He had a poor childhood, leaving home at 14. He was regarded as contrite and having good prospects of rehabilitation. At the time of the offence he was 18 and youth was conceded to be a mitigating circumstance. He was separately charged with discharging a firearm at Detective Phillips, again firing it to prevent apprehension and possession of a shortened firearm. For these offences he received, respectively prison sentences of 5 years including a non-parole period of 3 years, 5 years including a non-parole period of 2 years, and a one year fixed term. Commencing dates were fixed so that for these and the sentence on the conspiracy charge, Duncan’s total non-parole period was 5 years.

51 Sassine was recruited by Ellias after instructions or requests were passed from Zakhem to VAA, and VAA to Ellias. Having been there twice previously with his co-offenders, Sassine drove them to the premises on the night in question, Najem and Duncan leaving the car. Sassine said that he was to receive $1,500 for his part in bashing Lyons. Sweeney DCJ who sentenced Sassine was not satisfied that Sassine knew the others had guns. Sassine informed Ellias that he had a mate who could fix Lyons’ legs. Sassine was 18 at the time of the offence and had no prior criminal history. Sweeney DCJ accepted that because of Sassine’s youth greater weight should be placed on rehabilitation than deterrence and that, because Sassine had a borderline retarded level of intellectual functioning with attendant impulsivity and tendency to be easily led, his moral culpability was moderated to a slight to moderate extent. He had a deal of support from family and friends, was remorseful and her Honour accepted that, conditional on Sassine attending to a number of factors, the prospect of rehabilitation might be good. Sassine was regarded as on a par with Duncan apart from having 2 matters – assaulting and resisting a police officer - on a Form 1.

52 (The accounts in each of the paragraphs between the above table of sentences and here have been taken from the remarks made during the sentencing of the offender first mentioned in the paragraph. They are not necessarily all consistent, presumably reflecting variations between the evidence in one case and another. )

53 This account of the sentences and circumstances of Duncan and Sassine makes it clear that to impose on the Respondent a sentence for the conspiracy charge along the lines I have indicated above would create significant disparity with the sentences imposed on those two. When sentencing the Respondent Sweeney DCJ pointed out that he was older than Duncan and the fact that he was on conditional liberty at the time meant that the starting point for the determination of his sentence on the conspiracy charge should be higher than the starting point for the other two. These matters are not sufficient to account for the disparity in sentence along the lines indicated would create.

54 On the other hand, there already exists significant disparity. Although VAA and Ellias were in one sense higher up the chain of request – it was hardly a chain of command – and both inspected Beautopia’s premises, neither did more than the 3 sentenced by Judge Sweeney, particularly Duncan, the firer of the weapon. VAA engaged Ellias but Ellias engaged Sassine and Najem and Sassine engaged Duncan. Sassine was not shown in his sentencing proceedings to have been aware that Duncan had a gun but Sassine had engaged him to “fix” Lyon’s legs. There is much to be said for the view that the methodology, whether gun, baseball bat or knife, had little or no bearing on his criminality. Given the nature of the offence, the youth of Duncan and Sassine was not entitled to much weight. As was said as long ago as Nichols [1991] 57 A Crim R 391 at 395 and quoted in R v JL C-H [2004] NSWCCA 70 at [24]:-

"… True it is however that the courts consistently point out the need to give young offenders a chance and to refrain from sending them to gaol or dealing heavily with them if that course can be avoided. … However, there is a point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature, is so great, that that principle must be in the public interest, give way."

55 A contractual infliction of grievous bodily harm is such a point. See also R v Hearne [2001] NSWCCA 37

56 If any justification exists for disparity between the starting points of the sentences of VAA and Ellias on the one hand and the 3 sentenced by Sweeney DCJ on the other, it doe not extend to justifying the extent of the disparity which, in the case of VAA’s sentence is vast and in the case of the sentence on Ellias, substantial.

57 Disparity between the sentences imposed on co-offenders of course gives this Court a discretion to interfere with a view to removing the disparity. It does not oblige the Court to do so irrespective of other considerations. As was said in R v Rexhaj (unreported, NSWCCA, 29 February 1996) and quoted in R v Ismunander and Siregar [2002] NSWCCA 477 at [38]:-

"The principle which underlies … [intervention for disparity] … is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice … . There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision."

58 With similar consequences is the statement in R v Diamond (unreported, CCA 18 February 1993) quoted in R v Doan (2000) 50 NSWLR 115 at [19]:-

"The issue is whether the particular sense of grievance (or injustice) is a legitimate one. There is in my view, a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one": R v Diamond unreported CCA 18 February 1993.

59 Similar considerations must be relevant when this Court is asked to increase a sentence which, considered in isolation is manifestly inadequate although of course, so will be the discretion that exists in the case of any Crown appeal.

60 No offender other than Najem faced a charge of possession of a prohibited pistol so strictly speaking no question of parity relating to this charge arises. However, I regard it as at least relevant to the exercise of this Court’s discretion in a Crown appeal to recognise the penalties imposed on Duncan for firearms offences other than that in mere implementation of the conspiracy. As has been said, for using a weapon to prevent apprehension, Duncan received a sentence of 5½ years including a non-parole period of 2 years and for the charge most similar to the charge against Najem of possession of a prohibited pistol, viz. possession of a shortened firearm, Duncan received a sentence of imprisonment for a fixed term of 1 year. That charge arose under s 62 of the Firearms Act and carried a maximum penalty of 10 years.

61 Relevant also to the issue of whether this Court should allow this appeal is the fact that the Crown has not sought to appeal in the case of Duncan or Sassine. Why that was so, counsel appearing for the Crown in this Court could not say. This Court has on a number of occasions remarked on the difficulty created when the Crown appeals in the case of one or some only of a group of co-offenders and, in effect asks the Court to create a disparity – recognised as a mark of injustice (see Lowe v R [1984] 154 CLR 606) - between them. Given that at the time each co-offender was sentenced, the Office of the Director of Public Prosecutions knew that others would be, it defies imagination how in this age of easy data storage and reference that Office is not able to better co-ordinate its activities.

62 Nevertheless, and notwithstanding that allowing the Crown appeal and increasing the sentences on Najem will or is liable to create disparity with those imposed on Sassine and Duncan (though reducing the disparity between Najem and VAA and Ellias), the extent of the inadequacy in the sentences imposed on Najem is such that this Court should interfere. As I have said, her Honour’s starting points for the sentences on Najem should have been 10 and 7 years respectively. Applying to these periods the 20% discount her Honour allowed the result would be head sentences of 8 and (approximately) 5½ years. In the selection of the non-parole periods, regard should be had to her Honour’s findings of special circumstances.

63 However, in the exercise of this Court’s discretion in Crown appeals to impose sentences less than those that should have been imposed at first instance and because of the disparity with the totality of the sentences that have been imposed on Duncan and Sassine, I would impose sentences less than those indicated in the immediately preceding paragraph. I would propose the following orders:-

1. Allow the Crown appeal;
2. Quash the sentences imposed by Sweeney DCJ in respect of counts 1 and 2.
3. In respect of count 1, sentence the Respondent to imprisonment for a non-parole period of 4 years commencing on 7 September 2006, together with a further period of 3 years commencing on 7 September 2010.
4. In respect of count 2, sentence the Respondent to imprisonment for a non-parole period of 3 years commencing on 7 September 2005, together with a further period of 1 year commencing on 7 September 2008.
5. Record as the first date upon which the Respondent will become eligible for parole, 7 September 2010.

64 LATHAM J: I agree with Hulme J.

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