R v Najman

[2019] NSWDC 580

District Court

New South Wales

Medium Neutral Citation:	R v Najman [2019] NSWDC 580
Hearing dates:	22 July 2019
Date of orders:	22 July 2019
Decision date:	22 July 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Term of imprisonment of 2 years 6 months with a non-parole period of 1 year 8 months
Catchwords:	CRIME — Property offences — Break and enter with intent to commit serious indictable offence SENTENCING — Commencement — Pre-sentence custody period SENTENCING — Non-parole period — Principles to be applied
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Borkowski [2009] NSWCCA 102 Bugmy (2013) 249 CLR 571 Callaghan (2006) NSWCCA 58 R v Qutami [2001] NSWCCA 353 SZ v Regina [2007] NSWCCA 19
Category:	Sentence
Parties:	Regina (Crown) Qajin Najman (Offender)
Representation:	Peter Clayton (Crown) Ed Anderson (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown) Blaxland Criminal Law (Offender)
File Number(s):	2017/00126578
Publication restriction:	Non-publication order re confidential material

EX TEMPORE REVISED JUDGEMENT

INTRODUCTION

1. Qajin Najman is now 24 years of age and pleaded guilty upon arraignment in this Court to an offence contrary to s 113(2) Crimes Act 1900 expressed thus: that she on 26 April 2017 at Wentworth Point in the State of New South Wales did break and enter a dwelling house, the property of TP at Corniche Drive with intent to commit a serious indictable offence inside those premises, namely larceny, in circumstances of aggravation, namely, being in company.

2. An offence contrary to s 113(2) Crimes Act 1900 carries the maximum penalty of imprisonment for 14 years. There is no standard non-parole period for the purposes of Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

THE PLEA

3. Although the offender pleaded guilty upon arraignment, against the history of the proceedings through the Local Court and then this Court and the concurrent negotiations between the Crown and those representing her, it is as the Crown concedes appropriate to allow her a discount of 25% for the utility provided by the plea of guilty. The conduct in which she participated included a much broader range of criminality but in respect of it she could not ever be held responsible on the material that I have before me. The product of her participation in the early stages of the investigation led to the commencement of proceedings against her for an offence contrary to s 33A(1)(a) Crimes Act 1900 together with an offence contrary to s 112(3) of that Act. It will be clear from the facts that the evidence available to the Crown could not establish an offence contrary to s 33A(1)(a) Crimes Act 1900 and refinement of her participation to the offence of dishonesty ultimately led to the presentation upon the indictment to which she pleaded guilty to that charge.

4. At all times throughout the Local Court proceedings and in this Court it has been her wish to plead guilty to the wrongdoing upon which she was embarked and when given the opportunity to take that course she embraced it. She has therefore, in my judgement, earned the full 25% discount that is available to her for the utility of her plea of guilty in her response to the prosecution consistent with the judgement of Howie J in Borkowski [2009] NSWCCA 102.

5. There is an additional discount to be added for the assistance to authorities in accordance with s 23 Crimes (Sentencing Procedure) Act 1999. I shall come to that after I have completed the analysis of the facts and the subjective case that is available to the offender.

6. That part of the judgement dealing with that question will be treated as confidential and will not be for publication other than to the offender, to the Crown and to representatives appearing on behalf of co-offenders who are listed for trial in this court on 8 October 2019 and of course for any appellate court that might be called upon to review my decision. Thus the judgement should form two components; the judgement upon objective and subjective facts excluding the s 23 issues and with a separate portion dealing with the s 23 findings and the material upon which they are based.

PRE-SENTENCE CUSTODY

7. The offender has been in custody since her arrest on 27 April 2017 but only in respect of this matter since 27 November 2017 upon which date the sentence I am about to impose shall commence. This is because of a conviction she suffered for an offence of reckless wounding, as I understand it, that appears in her antecedent report on p 4 of 7 when on 4 December 2017 for the offence committed on 3 January 2017 she was sentenced to imprisonment for 12 months including a non-parole period of six months. There was also the imposition of concurrent sentences of one month fixed term for two offences of common assault committed on 19 April 2017. They were ordered to commence at the expiration of the non-parole period to which the offender was subject by reason of the conviction for reckless wounding. Thus the overall custodial component of the sentence expires on 26 November 2017 with a balance of parole during which he has been in custody throughout the five months.

8. The Crown concedes and so too does Mr Anderson, who appears on behalf of the offender, that the correct date for the commencement of this sentence is 27 November 2017. That is, in my view, consistent with the guidance provided by Simpson J in the decision in Callaghan (2006) NSWCCA 58 wherein her Honour discussed the discretion available to a sentencing court in such circumstances bearing in mind that it would be likely, indeed certain, that she would be released to parole at the expiration of the aforementioned custodial component in accordance with the legislation which requires that course to be taken. Moreover, it is appropriate to commence the sentence on the date identified to reflect the totality of the misconduct including that that led to the earlier sentences and the conduct that leads to the present sentence to ensure that the punishment suffered is no more than what the totality of the offending requires.

BREACH OF BOND

9. She was also subject to conditional liberty at the time of the commission of this offence. The Crown has conceded that the offences relating to the s 9 bonds to which she was subject were of a low order. No further action was required in respect of them. She was on bail it appears also which is of great concern but the aggravating impact of that conditional liberty is of modest proportion in all of the circumstances. Moreover, as an aggravating factor conditional liberty does not increase the objective seriousness of the offending or the penalty that might otherwise be proportionate to the misconduct but simply addresses aspects of specific deterrence and the extent to which the offender might have otherwise had greater leniency given to her which in the circumstances of this case would have limited impact in light of the blend of subjective material including the issues to which s 23 Crimes (Sentencing Procedure) Act 1999 is relevant.

OBJECTIVE SERIOUSNESS

10. As Mr Anderson correctly points out when assessing the objective seriousness of an offence such as this it is to be noted that the serious indictable offence that was intended was one of larceny for which the maximum penalty specified is imprisonment for five years. Serious indictable offences carry a maximum penalty of imprisonment extending from five years up to, in more serious cases or more serious examples, 25 years and thus that alone might bring down the objective gravity of this offence upon which I am to determine sentence today. That said there was a degree of planning involved in this. The offence was in company, which is not an aggravating factor because it is an element of the offence. It was in the home of the victim who was present at the time, and there was a degree of force employed in gaining entry to the premises after the ruse upon which the offender engaged to ensure the door would be open for the other perpetrators to make their entry.

11. The purpose of the break and enter was to steal a collection of watches said to be of some value, the particulars of which are not before me, and so it is difficult to assess how much the victim might have lost had the co-offender succeeded in this endeavour. But bringing that all to account it is in my assessment that the offence is below mid-range of objective seriousness so far as this offender is concerned looking at the objective facts and her level of participation. It is difficult always to place on a scale of seriousness where an offence should lie and minds will differ, but I would have thought somewhere between low end and mid‑range perhaps halfway along that scale is the appropriate place to put this misconduct involving this offender.

THE FACTS

12. The two co-offenders are named in the agreed statement of facts. They were born in 1984 and 1983 respectively and so are 12 years or thereabouts older than this offender. The complainant TP was living in a unit on the same floor as the unit occupied by the offender at Wentworth Point, whereas he was in unit XXX0 she was in unit XXX7 and they had some social interaction. To access the building there were swipe cards to the carpark and also, as I understood it, to ultimately gain access to the apartment. The social engagement between the offender and the victim included the use of prohibited drugs. On a couple of occasions they together shared in the consumption of GBH.

13. The complainant had a collection of expensive watches in his unit. They had been seen by the offender in his wardrobe and she had reported the existence of the collection to one of her co-offenders around about April of the year of this offence, 2017. During the early hours of 26 April 2017 the complainant and the offender consumed GHB over a number of hours in her unit and about 1.30am on 26 April 2017 the complainant went back to his apartment.

14. At 1.29am on 26 April the offender exited the building to buy some cigarettes and saw the two co-offenders outside of the building; they were sitting in a Mazda motor vehicle. She entered the rear seat and then used her building swipe card to allow the vehicle into the garage. Between 2am and 4am on 26 April the offender and the co-offenders were together in her unit. About 4am whilst she was continuing to consume GHB, methylamphetamine and heroin, the two co‑offenders suggested that she return to the complainant’s unit and pretend that she had lost her swipe card. She agreed to do so. The plan was a ruse to enable the two co‑offenders to break and enter the unit and steal his property. The plan was for them to gain access by barging into the unit as she left and they would then steal the watch collection from his premises. Nice questions of law might arise in respect of the nature of the breaking and entering but upon reflection, bearing in mind the ruse that was employed, I would be of the view that the breaking and entering is established as elements of the offence upon the description given to me.

15. The next piece of information is important. She at no time had any knowledge or suspicion that the co-offenders carried a weapon or would use the weapon in the course of the break, enter and attempted steal offence.

16. About 4.30am on 26 April 2017 the complainant was woken by a knock on the door. He looked at his phone and saw a message from the offender at 4.24am saying “I left my swipe. Can you please open?” He rose from the bed and opened the door. She was standing there by herself; her clothing is described. She told the complainant that she could not find her swipe card and asked if she could come inside to look for it. He allowed her to enter, shut the door behind her, and she began to look around the lounge room, and then walked back to the complainant and opened her wallet. He noticed her swipe card inside the wallet and said, “Isn’t that your swipe?” she said “Oh yeah it is. Sorry, babe, I’m just a bit fucked.”

17. She then went to the door of the unit and opened it. He held the door open for her and she left, but as he began to close the door behind her the other offenders barged through and forced it open. Clothing worn by the offenders is then described. She ran to her unit and tried the door. She then went to the lift area and pressed the lift button and waited for the elevator. While she was there the complainant struggled with the other offenders out of her sight. She heard shots fired and she heard the complainant call or shout “Get out.” As the lift was arriving, the other co-offenders ran from the unit and entered it with her.

18. During this struggle the complainant sustained a gunshot wound to his left thigh. The three offenders then travelled by lift to the ground floor. They went to the underground car park, where they all entered the Mazda and drove from the building in a hurry, using her swipe card to activate the garage doors.

19. The complainant called triple-0 and shortly afterwards the police and ambulance arrived. He was taken to Westmead Hospital and treated for the gunshot wound to his left lateral thigh at the level of mid-femur, as well as a superficial laceration over his right shoulder which breached the epidermis but not the dermis.

20. There was an examination of the complainant and the offender’s apartment. Inside the complainant’s apartment the police found a baseball cap. A tape lift from the hat identified DNA of which one of the co-offenders, Charrouf, was the major contributor of at least four other individuals. Police also recovered a knife of about 220 millimetres length in the complainant’s apartment and on the carpet near a table and chairs there was another hat. The knife was similar in style and size to the set of knives in the offender’s apartment. She had no prior knowledge that the knife from her knife set was to be taken by anyone in the planned break and enter offence.

21. A green shopping bag was also located in the complainant’s apartment beneath the dining table, containing various items, including a claw hammer, socket wrench, glass-breaker, a chisel and some rope, a white sock, a screwdriver. There was analysis of these items. A DNA trace swab of the handle of the screwdriver revealed that the co-offender Zahed was the major contributor of at least four individuals. A DNA tape lift from the handle of the shopping bag revealed that both co-offenders were major contributors of at least four individuals. The offender did not notice either of the co-offenders carrying the Aldi bag when they barged through the door as she exited.

22. Inside the offender’s apartment the police located a cigarette butt. Analysed for DNA, neither Zahed nor Najman, this offender, could be excluded as contributors to the DNA mixture. Two 38 calibre automatic fired cartridge cases were located inside the complainant’s apartment. They were, upon examination, confirmed to have been fired from the same weapon.

23. The investigation revealed CCTV that captured the offender moving about the vehicle, so too the Mazda motor vehicle and the two co-offenders with their faces covered. There were enquiries made with regard to the swipe pass access records, with the results there described. Police stopped Zahed at 2am on 24 April 2017, before this misconduct, driving the Mazda used in the events in which this break and enter occurred.

24. Telephone and mobile phone records were accessed, revealing contact between Zahed and this offender. There was also access to Facebook, Messenger and other enquiries which provided a clear connection between the offender and Zahed.

25. The offender was arrested on 27 April 2017 in the Downing Centre Court, where she was appearing upon another matter. She was interviewed. She agreed that she had seen the complainant on the evening of the crime and went back to look for her swipe card and that she saw two men as she was leaving who were unfamiliar to her and who ran into the apartment, after which she fled. Then on 29 January 2019 she made a statement at para 20 of which there is a representation acknowledging her lies in the previous interview because of her fear of the two co-offenders. She saw what they were capable of doing when they shot the complainant and she was worried that, if she had been more candid with the police, they would have come after her. She then gave a description of what occurred. Some of the representations attributed to her on this occasion were in terms that some of the information the police had was wrong.

26. There is then some further material in the agreed statement of facts with regard to the offender’s attendance upon a client with whom she had arranged to meet at 1am on 26 April 2017. In his company when returning to her premises she became aware of the police. At her request he attended her apartment to retrieve some clothing for her. When he returned to join her at the car she asked that he drive her to a lawyer in Kogarah. She made a phone call conducted in Arabic, which was recorded by this person, and a translation of that has been acquired. The conversation includes the following, and I quote from the agreed facts:

“A translation of the phone call has been obtained and in it Najman requests her sister’s … passport so that she can fly to her mother. She states that she will puff her face so it looks like [the sister]. The other person tells Najman to say that `If I don’t do then he hits, he will kill me.’ Najman says that she will go in for about ten years, but that she didn’t do anything, `But I’m still like I was in the story.’ and that it happened last night.”

27. There was another conversation by phone where the offender was told how to respond to the police if they asked her questions including that she was scared and ran away because she was a woman.

28. After driving to Kogarah the client drove her back to her apartment where she still would not go inside. She went to K-Mart, purchased some clothes, and again went back to the apartment. She was then taken to another location and the summary continues with what was harvested with regard to her movements.

29. The offenders Charrouf and Zahed were arrested and there is reference to them. As I said their trial is listed to commence on 8 October 2019.

THE OFFENDER

30. The offender was born in 1995; she is now 24 years of age. She has a record of antecedents of modest proportion compared to this misconduct. These are predominantly for possessing prohibited drugs, there is a failure to appear, there is the reckless wounding to which I referred earlier and the common assaults and some other minor offences; she has not been in gaol before.

31. There is a list of punishment details extending up to January 2019. The first of those was in May of 2017. There are nine entries for misconduct such as intimidation, possessing drugs, engaging in fights, failing of drug test, unlawfully using a phone and display interactions. There is a gap of six months since though, which is telling in the circumstances of this matter and the history of the proceedings as they have unfolded. I am satisfied this adds further support to what I find to be prospects of rehabilitation.

32. The history of her prosecution is set forth in the affidavit of solicitor Lisa Munro which was read in the course of these proceedings.

33. There is a description of her placement in custody and the security arrangements there to provide for her protection. There are descriptions in that affidavit of threats that were made to her by Zahed who is now the subject of a prosecution for those threats, that as I understand it are the bases for a prosecution of him for intimidation for attempting to influence a witness. She has undertaken to give evidence in those proceedings as well as proceedings brought against the other two for this matter upon which she is facing sentence.

34. The undertaking that she has given to assist authorities in the way that she has will attract a further discount including for future assistance. Moreover though it will be her decision as to precisely what opportunities for protection she accepts it is apparent that there will be arrangements offered to her to provide for a safe place at which to live with opportunities there which will not put her at risk of harm from these co-offenders or others who might be connected with them. I do not intend to rehearse all of the material that is contained in the annexures to the affidavit, I am satisfied that the material that is provided and the extent to which it supports the circumstances of the offender including the decision to take another course in life, provide the assistance to authorities that she has and intends to provide.

30. I have a letter from her written on 22 July 2019 that speaks of her migration to Australia from Lebanon in 1998 when she was aged three. She lived in Cairns with her family until the age of 16 before they moved back to Lebanon. They remained there for two years and then returned to Australia to live in Perth. Once she reached 18 she moved to Sydney. She had a difficult time throughout childhood and teenage years. Her upbringing was conservative and within the Muslim faith. When she came to this city she began escorting. After a short time she was introduced to methylamphetamine and suffered the addictive consequence. She began to abuse drugs and alcohol to mask the guilt that she was experiencing against the background of her faith and strict family upbringing. The guilt arose from the work upon which she was engaged and the minor offences upon which she had embarked as I earlier summarised.

31. Zahed was one of her clients. She met him when she first came to Sydney about mid‑2014 and she met the other offender Charrouf on a few occasions. She is ashamed of her actions which she has had time to consider over the last two years. She regrets what occurred to her neighbour and her participation in the event that led to the harm he suffered. She has thought about her choices in life and she realises that she needs to change her surroundings and change her circumstances to avoid people of the type with whom she has been associating to stay clear of drugs. She has not been able to do that entirely in prison but since January she has remained abstinent and as a consequence feels healthier and clearer. She has found prison very hard. This is not surprising; this is the first time she has been in gaol. Her family are located in Perth and so she has hardly any visitors and is terrified for her safety every day, no doubt for the reasons that are articulated in greater detail in the affidavit of Ms Munro with the annexures thereto. She wants to put this behind her and live a peaceful life somewhere where she can be safe.

32. The Crown concedes that although the Court must in all such instances use appropriate circumspection when assessing representations by an offender not given under oath and untested, as discussed by Smart AJ in R v Qutami [2001] NSWCCA 353, in this case bearing in mind the course the offender has taken, the Court could comfortably accept the reliability of the representations that have been attributed to her and which she has made by way of that letter, to accept that she is appropriately contrite and remorseful and that there are prospects for rehabilitation for which she should be given benefit when the sentence is assessed and the non-parole period is identified.

FOR CONFIDENTIAL SENTENCE SEE SEPARATE TRANSCRIPT.

THE PSYCHIATRIC ASSESSMENT [1]

1. This portion of the judgement may be published.

38. And finally, a little more about the offender is known by way of the psychiatric assessment made by Dr Tanveer Ahmed. I note that this was an assessment made by audio visual link, and it is always recognised that this presents its own challenges. It is far better when assessing someone for these purposes to have them present, to observe nuance that might arise in respect of not only what is said but the way it is said. But the content of the report and what I know of the offender from the other material is sufficient to allow me to find that the opinions offered by the psychiatrist and the premises upon which they are reached are reliable and ought to be accepted.

39. There was reference made in the course of submissions to the principles in the decision in the High Court of Bugmy (2013) 249 CLR 571. Although this is not severe as the case the High Court was concerned with there is sufficient in this offender’s background to require consideration of what she experienced. She is not from this country initially; as I noted earlier, she is from Lebanon. She came to this country, returned to Lebanon for a period of two years, and then returned to Australia to live in Perth before leaving her family behind to come to Sydney where she took up work in the escort business. She had a somewhat traumatic upbringing, involving domestic violence and physical abuse as she grew through her formative years. The family is strictly Islamic. There were episodes of beatings. There was no sexual abuse. She ran away from home when she was aged 16. She stayed in a refuge for several months before reuniting with her mother. That was before she was taken back to Lebanon for two years. There was some attempt to organise a marriage partner for her sister in Lebanon while they were there. She found that to be a difficult experience. Once they had returned to Perth, wanting an independent life the offender moved to Sydney and began work in the escort services, which led in turn to the introduction of the prohibited drugs that she became dependent upon.

40. Mr Anderson concedes that is not an aspect of her existence that reduces moral culpability. It could not be said that the fact that she had been using drugs - GBH - that night is in any way mitigating, by force of s 21A (5AA) Crimes (Sentencing Procedure) Act 1999. However, the misuse of drugs the evolved against her background as described is a matter that is brought to account in the matrix of subjective circumstances to be synthesised with the assessment of the objective seriousness of the offence.

41. She had difficulty socialising through school. She was not allowed to socialise outside of school and that included even making phone calls because of the strict religious practices of her family. There is reference to her father and mother and the work they engaged upon. She has reached that point that she now wants to return to Perth, resume her association with the family, perhaps pursue a course in beauty therapy.

42. There is no other psychiatric or medical background of note, however the psychiatrist is of the view that she clearly has poly-substance dependence and an underlying borderline personality disorder and also satisfies the criteria for major depression. A treatment plan is recommended and it is suggested that this would provide her with benefit. I would leave that for parole authorities to consider and I expect that they would provide what she might need in that regard, bringing to bear of course what her solicitor Ms Munro is prepared to do to assist her. I am told by Mr Anderson that Ms Munro is willing or intending to facilitate a program whereby her rehabilitation can be further developed; that should be in conjunction with Community Corrections at the point of release to parole.

43. The apportionment for past and future assistance I am going to divide to 12 and a half per cent for past and 12 and a half per cent for the future. I have allowed for the combined discount of 50% representing this and utility by the plea of guilty. For her participation in the offence in the circumstances that are before me against her background of offending and the subjective circumstances that I have I would have identified a sentence of imprisonment for 5 years reduced to the period of 2 years and 6 months upon the 50% discount that I am extending to her in accordance with the decision SZ v Regina [2007] NSWCCA 19. I specify a non-parole period of 1 year and 8 months that will leave for a period of parole of 10 months; the parole period will expire on 26 July 2019 which is only a matter of days away.

44. Thus upon the conviction for the offence I specify a non-parole period of 1 year and 8 months commencing on 27 November 2017 expiring on 26 July 2019. I impose a further period of imprisonment at the expiration of the non-parole period of 10 months to expire on 26 May 2020. Being a sentence of less than three years the offender is to be released to parole at the expiration of the non‑parole period. The parole will be supervised in accordance with the regulations and the report provided by the psychiatrist to whom I referred can be made available to assist the parole authorities in that regard, together with whatever information the offender’s solicitor can provide with regard to the program that is contemplated for her rehabilitation.

45. I shall retain the exhibits on file. I will ask my judgement be taken out so that it will be all available. I’m not going to be back here for some little time though, I think. If it can be sent to me by way of email I should be able to access it from where I’m going to be overseas and I’ll try and get it done and sent back from there, depending upon access to Wi-Fi. But I’ll attend to that so that it’s available for everyone.

46. It is my intention that she be released to the expiration of the non‑parole period.

47. Ms Najman, just stand up I need to address you directly. Your sentence is 2 years and 6 months including the non-parole period which expires later this week and then you will be on parole for another 10 months after that. You have obligations though with regard to the undertaking you have given; you have been allowed a discount for the undertaking that you have given at 12 and a half per cent. If you fail to comply with that you must understand, and no doubt Mr Anderson has explained this to you, the Crown will have the opportunity to take you back to the Court of Criminal Appeal and they will get to look at this again and to look at whether or not you should suffer the additional 12 and a half per cent of that sentence to bring you back into line with the sentence I have imposed.

**********

Endnote

Decision last updated: 18 October 2019