R v VAA

[2006] NSWCCA 44

CITATION:	R v VAA [2006] NSWCCA 44
HEARING DATE(S):	15 February 2006
JUDGMENT DATE:	3 March 2006
JUDGMENT OF:	James J at 1; Buddin J at 2; Hall J at 55
DECISION:	1 Crown appeal allowed (in part). 2 The sentence in respect of count 1 is confirmed. 3 The sentences imposed in respect of counts 2-4 are quashed so far as the commencement date of each sentence date is concerned. In lieu thereof the following commencement dates are imposed: (a) in respect of count 2, the respondent is sentenced to a non-parole period of 2 years to commence on 12 February 2006 and to expire on 11 February 2008, with a total term of imprisonment of 3 years to commence on 12 February 2006 and to expire on 11 February 2009. (b) in respect of count 3, the respondent is sentenced to a non-parole period of 2 years to commence on 12 August 2006 and to expire on 11 August 2008, with a total term of imprisonment of 3 years to commence on 12 August 2006 and to expire on 11 August 2009. (c) in respect of count 4, the respondent is sentenced to a non-parole period of 2 years to commence on 12 February 2007 and to expire on 11 February 2009, with a total term of imprisonment of 3 years to commence on 12 February 2007 and to expire on 11 February 2010. 4 The sentence in respect of count 5 is quashed. In lieu thereof (and taking into account the matters on the Form 1 document) the respondent is sentenced to a non-parole period of 3 years to commence on 12 August 2006 and to expire on 11 August 2009, with a total term of imprisonment of 5 years to commence on 12 August 2006 and to expire on 11 August 2011. The respondent will be eligible for release on parole on 11 August 2009.
CATCHWORDS:	Crown Appeal - offences relating to malicious damage of property by fire - conspiracy to maliciously inflict grievous bodily harm with intent to do so - matters on a Form 1 document - early pleas of guilty and significant assistance to the authorities - whether error to impose wholly concurrent sentences - whether any of sentences manifestly inadequate
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Proceedings) Act 1999 Criminal Appeal Act 1912
CASES CITED:	Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 R v Brett [2004] NSWCCA 372 R v Cotter (2003) NSWCCA 273 R v Hammoud (2000) 118 A Crim R 66 R v Hovan [2005] NSWCCA 179 R v Janceski [2005] NSWCCA 288 R v Morgan (1993) 70 A Crim R 368 R v NP [2003] NSWCCA 195 R v Wall [2002] NSWCCA 42 R v Waqa (No 2) [2005] NSWCCA 33 R v Weldon & Carberry (2002) 136 A Crim R 55 The Queen v Hoar (1981) 148 CLR 32
PARTIES:	Regina VAA
FILE NUMBER(S):	CCA 2005/1898
COUNSEL:	Ms J Girdham (Crown - Applicant) D Dalton (Respondent)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) John B Hajje & Associates (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0537
LOWER COURT JUDICIAL OFFICER:	Puckeridge DCJ
LOWER COURT DATE OF DECISION:	15/02/2006

2005/1898

JAMES J
BUDDIN J
HALL J

FRIDAY 3 MARCH 2006

REGINA v VAA

Judgment

1 JAMES J: I agree with Buddin J.

2 BUDDIN J: This is an appeal brought by the Director of Public Prosecutions, pursuant to s 5D of the Criminal Appeal Act 1912, against the asserted inadequacy of sentences imposed in the District Court upon the respondent.

3 The respondent pleaded guilty in the Local Court to 4 charges in respect of which he was committed for sentence to the District Court. They included 3 charges of being an accessory before the fact to maliciously damaging property by fire. The remaining charge was of conspiracy to maliciously damage property by fire.

4 When the respondent appeared in the District Court he adhered to his earlier pleas of guilty. He also pleaded guilty to a fifth charge which was brought by way of an ex-officio indictment, of conspiracy to maliciously inflict grievous bodily harm with intent to do so. The respondent requested that two further counts of conspiracy to maliciously damage property by fire, which were placed on a Form 1 document pursuant to s 33 of the Crimes (Sentencing Proceedings) Act 1999, be taken into account.

5 The maximum penalty for the substantive offence of maliciously damaging property by fire is 10 years imprisonment: Crimes Act 1900 s 195(b). An accessory before the fact to such an offence is liable to the same punishment: see Crimes Act s 345. The maximum penalty for conspiracy, it being a common law offence, is at large but the maximum penalty for the substantive offence is generally relied upon as indicating the appropriate maximum penalty for the conspiracy offence: see The Queen v Hoar (1981) 148 CLR 32. The maximum penalty for the offence of maliciously inflicting grievous bodily harm with intent to do so is 25 years: Crimes Act s 33.

6 In respect of each of counts 1-4, that is the offences for which he was originally committed for sentence, the respondent was sentenced to concurrent terms of imprisonment for 3 years commencing on 12 August 2005 and expiring on 11 August 2008, with a non-parole period in each case of 2 years commencing on 12 August 2005 and expiring on 11 August 2007. In respect of count 5, the ex-officio indictment matter, in relation to which the matters on the Form 1 were taken into account, he was sentenced to imprisonment for 3 years 9 months commencing on 12 August 2005 and expiring on 11 May 2009, with a non-parole period of 2 years 3 months commencing on 12 August 2005 and expiring on 11 November 2007. The latter sentence was ordered to be served concurrently with the sentences imposed in respect of counts 1-4, and thus represents the total effective sentence imposed upon the respondent.

The facts

7 An agreed statement of facts was before the sentencing judge. I have drawn heavily upon that document in setting out the background to the present offences.

8 A Police Strike Force was formed to investigate 12 incidents of arson committed upon the premises of businesses involved in the wholesale supply of hairdressing materials, which had occurred between the years 1998 and 2004. The total damage, including the damage to buildings and stock in trade as well as loss of earnings, has been estimated as being as high as $100 million. The respondent was not however dealt with in relation to all of those incidents.

9 The investigation focused on a number of persons including one Gabriel Zakhem, the alleged mastermind in relation to all of the offences. In October 2004 investigating police obtained a number of warrants enabling them to legally intercept telephone calls made between a number of suspects, including the respondent and Zakhem. In addition to those two men, five other persons have been charged with various offences relating to the lighting of the fires which were the subject of the police investigation.

10 In August 1998 the respondent was employed by Zakhem, to whom he is related. Zakhem was the owner of G & T Hairdressing Supplies (G & T), a company that sold hairdressing products. In essence, the Crown case is that Zakhem solicited the respondent to arrange for the destruction of premises belonging to his competitors in order to gain greater market penetration and increased sales for G & T and its affiliated companies. The respondent, in turn, arranged for others to actually commit the arsons.

Count 1

11 Between 1995 and 1998 Salon Marketing Services Pty Ltd, which traded as “Matrix Essentials Australia” (Matrix), had its premises at Epsom Road, Zetland. It was the sole and exclusive distributor in Australia of “Matrix Essentials”, a range of hair care products. In 1995 Matrix became aware that G & T had been selling Matrix products. As a result it commenced proceedings in the District Court, seeking various remedies including orders to restrain G & T from selling its products as well as damages. Interim orders were made. Matrix later discovered that G & T was still selling its products and accordingly it commenced contempt proceedings against G & T. These proceedings were set down for a directions hearing on 10 August 1998.

12 Some time prior to 10 August 1998 Zakhem approached the respondent and asked him to organise an arson attack on the Matrix warehouse. The respondent arranged for a man named Anthony Coleman to commit the offence. Mr Coleman and his son proceeded to burn down the premises at 3 am on 10 August 1998. The fire was extinguished but the building, stock and operating equipment were totally destroyed. The total loss which was occasioned was estimated to be $4.35 million.

Count 2

13 In 1999 Alan Laxale was the owner of Laxales Hair Dressing Supplies, which carried on business as a wholesaler of a range of hairdressing supplies from premises at Boomerang Place, Seven Hills. Laxales had, until 1997, bought a particular hair product from G & T which it on-sold to its own customers. When it decided to drop that product range it still had a quantity of it in stock that had not been paid for. Laxales returned the stock to G & T, which then insisted on the payment of a 20% handling surcharge. Laxales only paid the surcharge following a dispute in which legal action had been threatened by G & T.

14 Some time prior to 6 October 1999 Zakhem approached the respondent and asked him to organise an arson attack on the Laxales premises. Just after midnight on 6 October 1999 a fire was started which destroyed stock to the value of $49 000 in a garage at the rear of the Laxales premises. At about 3.25 am the following morning the NSW Fire Brigade attended and extinguished another fire at the Laxales premises. The total loss of stock and profit which had been sustained as a result of the second fire was estimated at $262 000, whilst damage to the building was estimated at $65 000.

15 Apparently Zakhem was disappointed with the result of the first fire and instructed the respondent to have the “job” done properly. The respondent in turn passed these instructions on to the actual perpetrators, who once again were the two Colemans.

Count 3

16 In November 2001 the Managing Director of Dateline Imports Pty Ltd (Dateline), an importer and distributor of hair care and other beauty products, became aware that G & T was importing and selling products which failed to comply with Australian standards. Dateline was considered to be a major market force in relation to the distribution of certain products used in the hairdressing industry. Its Managing Director complained to the New South Wales Office of Fair Trading which then investigated. Action against G & T for selling the non-approved products was commenced, but discontinued after Zakhem was interviewed in March 2002. Nevertheless a warning notice was issued.

17 Shortly before 20 August 2003 Zakhem instructed the respondent to organise an arson attack on the Dateline premises in Maddox Street, Alexandria. On this occasion the respondent arranged for his cousin, whom I shall refer to as A, to commit the offence. At about 5.30 am on 20 August 2003 the NSW Fire Brigade responded to a call concerning a fire at those premises. It took several hours for the fire to be brought under control and extinguished. The building collapsed and the adjoining building also suffered fire and water damage. Damage to stock and buildings was estimated to be approximately $18 million.

Counts 4 & 5

18 During October/November 2004 Andrew Lyons was the owner and director of Beautopia Pty Ltd (Beautopia), which dealt in hairdressing products and had premises at Short Street, Chatswood. Lyons had previously been in partnership with Zakhem, an association which was brokered in late 2003 and early 2004 and involved Lyons buying into G & T. After some 8 months however their arrangement was dissolved and Lyons started the Beautopia business, which was in direct competition with G & T.

19 Zakhem learned that Lyons had been distributing advertising material which he thought was very similar to that put out by G & T. He also suspected that Lyons had taken a copy of the G & T client list with him.

20 During the course of a number of intercepted telephone conversations between the respondent and Zakhem, instructions were given by the latter to “paint” the Beautopia premises and for Lyons’ legs to be “fixed” so that he would be put in hospital. Conversations were also intercepted in which the respondent passed those instructions on to A. In further intercepted conversations A in turn instructed two other offenders named Sassine and Najem to carry out both the arson and the assault. During those conversations it was indicated that the arson attack would be carried out either at the same time or on a separate occasion from the assault upon Lyons.

21 On 1 and 2 December 2004 Sassine and Najem told A that they had been unable to carry out the offences because the Beautopia premises had been closed and unoccupied. Najem informed A that the offences would be carried out on 3 December 2004. As a result police conducted an operation in which officers posing as Beautopia employees occupied the premises on that evening.

22 At about 9.25 pm that evening police observed a Holden Commodore registered to Sassine park in a driveway near Short Street. Soon after Najem and a man named Duncan (who had been enlisted by Najem and Sassine) were observed to enter the roof top car park above the Beautopia premises. Najem, who was armed with a fully loaded semi automatic pistol, took up position as a “look out” on the roof top.

23 Soon after Duncan was observed at the front of the Beautopia premises, holding an object in his hand which was later discovered to be a loaded sawn-off .22 calibre rifle. Duncan approached the front door and knocked. As Detective Sergeant Phillips, posing as a staff member, approached the door Duncan said, “Do you own the Rav 4”? (which was a reference to a vehicle parked across from the Beautopia premises) Phillips replied “Yes”, at which point Duncan discharged a shot from his rifle towards the legs of Phillips. The shot missed and Duncan fled towards Short Street. Police gave chase.

24 During the pursuit Duncan twice turned and fired shots at police, missing on both occasions. Duncan was then taken to the ground by a police dog and apprehended. Najem also fled. He too was chased and apprehended by police. His pistol was found to be still fully loaded. Sassine, who was the getaway driver, was apprehended after trying to drive around a police vehicle which was blocking his exit from the area. All three men were then arrested and charged.

25 On 8 December 2004 the respondent was arrested. When initially interviewed he made admissions in relation to the above offences and nominated Zakhem and A as also being involved. Later that evening he was fitted with a listening device and taken by police to meet Zakhem. During the course of the ensuing recorded conversation between the two men, Zakhem clearly indicated his knowledge of the Beautopia arson and assault matters. Zakhem however expressed his surprise regarding the use of firearms. He said that he thought that a knife or a baseball bat would have been used. In fact he had instructed the respondent that he wanted a baseball bat used. It was not part of the Crown case that the respondent or Zakhem had any knowledge that a firearm was to be used in the commission of the offences. Zakhem also confirmed that he had provided the respondent with $10 000 in cash (for payments for the offences), in a box containing hair products. He also questioned how “they” had managed to get the wrong person when he had put a photo of Lyons in the bottom of the box.

Form 1 matters

26 On 18 October 2004, in an intercepted telephone conversation, Zakhem requested the respondent to organise for somebody to set fire to and destroy business premises in Melbourne. Investigators believed that the premises referred to were those occupied by a company named “Podco”. Zakhem had business interests and investments amounting to approximately $2 million in Podco, which was in liquidation. Destruction of the premises would have led to both Podco and Zakhem profiting from any insurance payout. A number of telephone conversations were subsequently intercepted during which the respondent requested A to organise the arson in Melbourne. This was the first of the offences specified in the Form 1 document.

27 When giving the respondent instructions in relation to the commission of the offences represented by counts 4 and 5 (the Beautopia offences), Zakhem also indicated that he wanted the G & T franchise at Erina to be burnt down, ideally at about the same time, in order to remove suspicion from himself concerning those offences. The respondent in turn informed A of this “new contract”, claiming that it was an easy five-minute job that both of them could do. This was the second of the offences specified in the Form 1 document.

Subjective features

28 The respondent was born in Australia on 6 February 1959 of Lebanese parents. He grew up in a close and supportive environment. His upbringing was otherwise unremarkable. He has a history of regular employment. At the time of the offences he was working as a medical liaison officer with a pathology company. Indeed, in the period prior to his arrest he was said to be working 7 days a week which included his doing a second job. He has an adult son from his first marriage and two young sons to his second wife who remains supportive of him. There were periods in his life when he was addicted to drugs, especially amphetamines, but he professes to have overcome his dependency upon them some time ago. There was material before the sentencing judge attesting to the respondent’s personal qualities. In 1999 one of his brothers committed suicide and his father died of dementia. This was obviously a difficult time for the respondent and his family.

29 The respondent gave evidence during the course of the sentencing proceedings, as did a police officer. That officer described Zakhem as a “very manipulative person”. The respondent, who as I have observed was related to Zakhem, gave evidence that he felt, as the sentencing judge described it, “under a certain cultural loyalty to Zakhem, to carry out the arson request”. The police officer’s evidence provided support for this conclusion. He also said that he felt under an obligation to Zakhem because the latter had given him a job at a time when he was unemployed and had custody of a son who was then quite young. The respondent also stated that he felt overborne by Zakhem. A report from a psychologist referred to the respondent’s vulnerability to being overborne by someone of the character of Zakhem.

30 In about 1999 the respondent left the employment of Zakhem. He explained that he continued to commit offences thereafter because Zakhem had threatened to reveal his earlier activities if he did not continue. The sentencing judge said that he would take those matters into account in assessing the objective seriousness of the offences.

31 The respondent has a prior criminal record which consists of an offence of wilful and obscene exposure, in respect of which he was placed on probation in 1976 in the Children’s Court, and offences in 1990 of supply and deemed supply of cannabis, for which he received a term of 3 months to be served by way of periodic detention.

32 The respondent was able to rely upon a body of material which had the effect of significantly ameliorating the otherwise appropriate sentences. Firstly, he pleaded guilty at the first available opportunity, a matter which the sentencing judge assessed should attract a discount at the top of the available range. Secondly, the respondent provided assistance to the authorities, the value of which His Honour described as being at “the higher end of the scale”. The sentencing judge also found that the respondent was genuinely remorseful.

33 A generous discount for assistance was warranted in this case, as the Crown readily accepted. Not only had the respondent, upon his arrest, engaged in the dangerous activity of wearing a listening device in order to capture his conversations with Zakhem, but he had also actively assisted the authorities in relation to the activities of other persons. He is the critical witness in the prosecution of Zakhem. In respect of 8 of the 11 charges brought against Zakhem, the Crown is totally dependent upon the evidence of the respondent. In respect of the 3 remaining matters, his evidence is supported by material contained in telephone intercepts.

34 The respondent has agreed to give evidence not only against Zakhem but also against at least five other persons. Moreover, the respondent disclosed information about offences and offenders of which the authorities were otherwise unaware. The material constituting the respondent’s assistance to the authorities has been placed before the Court. Its significance is readily apparent and requires no further elaboration.

35 The respondent is being held in protective custody in order to ensure his ongoing safety. The sentencing judge observed that the respondent “is under maximum protection and is confined to his cell for a period of 16 hours a day”. His Honour was also made aware that the premises occupied by the respondent’s mother had been the subject of what was described as a “drive by” shooting, although fortunately no-one was injured. There was other material which indicated that the respondent had been the subject of death threats.

36 The respondent was granted bail following his arrest in order that he could further assist the authorities. He remained on bail, upon stringent conditions, until 12 August 2005. His Honour treated the period which he spent on bail as a form of “quasi-custody”.

37 In fixing the sentences to be imposed in respect of each of counts 1 – 4, the sentencing judge commenced by fixing a notional head sentence of 8 years. His Honour reduced that sentence in each case by 25% (to 6 years) to reflect the plea of guilty, which he then reduced by a further 50% to give effect to the respondent’s assistance to the authorities, thus arriving at a head sentence in each case of 3 years. His Honour then made a finding of “special circumstances” by reason of the respondent’s favourable prospects of being rehabilitated and the fact that he could benefit from a longer period on parole.

38 It is to be observed that the effect of what his Honour did was to produce an aggregate discount in each case of 62.5% for the respondent’s plea of guilty and remorse and his assistance to the authorities. His Honour allowed the same aggregate discount in relation to count 5. His Honour could equally have allowed for a combined or “rolled-up” discount: see R v Waqa (No 2) [2005] NSWCCA 33 and R v Hovan [2005] NSWCCA 179. However in the final analysis that issue is of no real moment in the present case.

39 The Crown at first instance drew the sentencing judge’s attention to this Court’s decision in R v NP [2003] NSWCCA 195, in which an overall discount for a plea of guilty and assistance to the authorities of 60% had been allowed. In that case, Simpson J observed that:

The result of the rigorous application of what have become relatively standardised discounts (especially where a considerable discount for a plea of guilty is added to an even more considerable discount for significant assistance) can, on occasion, cause a sharp intake of breath, but that is the result of the application of correct and established legal principle. The result can appear to be disproportionate to the offence(s). Sentencing judges (as in this case) have to balance the need to impose proper punishment with the need to recognise the benefits to the criminal justice system gained by pleas of guilty and assistance to authorities. The correct balance is not always easy to achieve.
This is where s23(3) of the Crimes (Sentencing Procedure) Act 1999 demands consideration, and, sometimes, application. By that subsection, a sentencing judge allowing a discount for assistance to authorities, is required, notwithstanding, to ensure that the resulting sentence is not unreasonably disproportionate to the nature and circumstances of the offence(s). (pars 49-50)

40 It is unnecessary however to further consider this aspect of the matter as the Crown does not challenge the various discounts which were afforded to the respondent. Nor does it challenge the individual sentences imposed in respect of counts 1 – 4. It described them as “lenient” but acknowledged, in so doing, that the respondent was not the principal offender.

The submissions

41 The principles governing the determination of a Crown appeal are well established. In R v Wall [2002] NSWCCA 42, Wood CJ at CL (with whom Meagher JA and Bell J agreed) said:

(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.
(c) A Crown appeal against sentence is concerned with establishing matters of principle “ for the governance and guidance of courts having the duty of sentencing convicted persons ”: per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109.
(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.
(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62. (par 70)

42 The Crown’s challenge is two-fold. First, it asserts that the sentence imposed in respect of count 5 is manifestly inadequate. Secondly, it contends that the sentencing judge fell into error in fixing sentences that were entirely concurrent with each other.

43 Before turning to the specific matters which were raised by the Crown, it is convenient to make some general observations about the objective seriousness of the various offences. As is apparent, in each instance Zakhem solicited the respondent to commit the offence in question. The respondent then engaged others to commit the actual offences. All dealings were thereafter conducted with him directly, including the payment of moneys which were provided by Zakhem.

44 The sentencing judge characterised the respondent’s role as being that of a “facilitator”. Whilst that is undoubtedly so, it may not truly reflect the extent of his role. Whatever be the true characterisation of his role, it is clear that the respondent’s conduct effectively insulated Zakhem from those who actually perpetrated the various crimes. The sentencing judge quite properly rejected a submission that the respondent’s criminality was reduced because he did not personally light the fires. Nevertheless, the sentencing judge accepted the respondent’s evidence to the effect that he did not receive a “great financial advantage” from his involvement in these offences.

45 In assessing the seriousness of the arson offences, the sentencing judge correctly pointed to the extent of the damage or loss which had been caused (which in some instances was enormous), the fact that the lighting of the fires was carried out without regard for public safety and the degree of planning which was involved: see s 21A(2)(g), (i) and (n) of the Crimes (Sentencing Procedure) Act 1999. There was always the risk, as his Honour observed, that members of the public may have been present in the vicinity of the various fires even though they had all been set in the early hours of the morning.

Conclusions

46 So far as the sentence imposed in respect of count 5 is concerned, the sentencing judge quite properly observed that the conspiracy did not involve the use of firearms. Nonetheless an agreement to have a business rival assaulted to the point where he requires hospitalisation suggests criminality of a high order. It was clear from the conversation between the respondent and Zakhem that the latter at least anticipated that a baseball bat or a knife would be used. In my view, the plan to assault Lyons elevated the overall seriousness of the respondent’s offending to another plane.

47 Moreover, it is hard to escape the conclusion, both from the ultimate sentences which were imposed and the way in which the sentencing judge addressed the matter almost as an afterthought (it was not until after his Honour had announced the individual sentences that he inquired as to which offence the Form 1 matters applied), that his Honour overlooked the need, when sentencing the respondent on count 5, to take into account the offences on the Form 1 document. They were each serious matters in their own right and required an upward adjustment of the otherwise appropriate sentence: see Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.

48 Counsel for the respondent contended that the sentence in respect of count 5 was not manifestly inadequate. In support of that submission he relied upon this Court’s decision in R v Brett [2004] NSWCCA 372, which he said was a more serious example of this particular kind of offence. I find that decision of little assistance given the significant differences in the factual circumstances of the two cases. In any event, this Court has frequently indicated that there are significant limitations in seeking to compare cases which do not involve co-offenders: see eg R v Morgan (1993) 70 A Crim R 368. I would uphold the first ground of the Crown’s appeal.

49 The second ground raised by the Crown concerns the sentencing judge’s decision to order that all sentences were to run concurrently. In respect of this matter, the Crown points out that the way in which the sentences were structured has resulted in the sentences in respect of each of counts 1 – 4 being entirely subsumed within the sentence imposed in respect of count 5. Accordingly, it was submitted that effectively no punishment was imposed in respect of any of those offences, each of which were serious instances of this type of offence.

50 The sentencing judge approached this aspect of the matter in the following fashion:

In regard to the question of totality and whether the sentences should be concurrent, or partly concurrent and partly cumulative. As has been submitted, certainly in relation to the charges of accessory before the fact and malicious damage to property, there are common elements involved in all offences. Again in relation to the conspiracy to maliciously damage the property occupied by Beautopia, so far as the prisoner is concerned, there is a common element in that he was facilitating the offence, and obeying the instructions of Mr Zakhem.

As I have stated, the conspiracy to inflict grievous bodily harm does involve a different element. However, I consider that the period of imprisonment of 45 months appropriately assesses the total criminality involved in relation to all of the offences.

51 It is clear that a sentencing judge has a broad discretion in relation to the approach to be adopted when sentencing for multiple offences: see R v Hammoud (2000) 118 A Crim R 66. In R v Weldon & Carberry (2002) 136 A Crim R 55, Ipp JA (with whom Hulme and Bell JJ agreed) stated the relevant principles to be applied. His Honour said:

A paramount principle of the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender’s conduct: Veen v The Queen (No 2) (1988) 164 CLR 465. This principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be proportionate to the gravity of the offence, having regard to all the circumstances of the case: Hoare v The Queen (1989) 167 CLR 348; 40 A CrimR 391.
The question whether sentences are to be imposed concurrently or cumulatively must always be answered by reference primarily to these criteria.

It is not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed - but this is not an inflexible rule: Wilkins (1988) 38 A Crim R 445 (per Lee CJ at CL and Carruthers J, Allen J dissenting). The practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct, the subject of punishment on each count: Pearce v The Queen (1998) 194 CLR 610 at 624 (see also 621 to 622; 380-381). (pars 46-48)

52 I accept the Crown’s submission that the sentencing judge has fallen into error in imposing wholly concurrent sentences in the circumstances of the present case. The consequence of his Honour’s decision to do so has resulted in sentences which do not, even after due allowance is made for those matters which are to be weighed in his favour, adequately reflect the totality of the respondent’s criminality. His Honour’s apparent justification for having imposed wholly concurrent sentences, namely that “there are common elements involved in all offences”, is, with respect, such as to display error. Such an approach may be warranted in some cases. The present case however featured a number of discrete offences spread over a number of years which were committed against different victims: see R v Cotter (2003) NSWCCA 273 and R v Janceski [2005] NSWCCA 288 at [21]. Moreover, as I have said, the last offence involved criminality of a very different order from the preceding offences.

53 Each offence required the imposition of an appropriate sentence. His Honour’s conclusion that “the period of imprisonment of 45 months appropriately assesses the total criminality involved in relation to all of the offences” (emphasis added) simply compounded the error, given the matters to which I have referred. The sentencing judge’s approach is all the more surprising given that counsel who appeared for the respondent in the District Court effectively conceded that sentences which were partly concurrent and partly cumulative ought to be imposed. Moreover, during the course of submissions, the sentencing judge expressed the clear, albeit preliminary view that he was inclined to impose sentences which were indeed partly concurrent and partly cumulative.

54 I can discern no reason which would incline the Court to exercise its discretion not to intervene in the present case. Accordingly, it will be necessary to re-sentence the respondent. In doing so I remain mindful of the approach which is to be adopted: see Wall (supra). I have also had regard to the provisions of s 3A and the relevant matters in s 21A of the Crimes (Sentencing Procedure) Act 1999. I would, as his Honour did, make a finding of “special circumstances”. I propose the following orders:

1 Crown appeal allowed (in part).

2 The sentence in respect of count 1 is confirmed.

3 The sentences imposed in respect of counts 2-4 are quashed so far as the commencement date of each sentence date is concerned. In lieu thereof the following commencement dates are imposed:

(a) in respect of count 2, the respondent is sentenced to a non-parole period of 2 years to commence on 12 February 2006 and to expire on 11 February 2008, with a total term of imprisonment of 3 years to commence on 12 February 2006 and to expire on 11 February 2009.
(b) in respect of count 3, the respondent is sentenced to a non-parole period of 2 years to commence on 12 August 2006 and to expire on 11 August 2008, with a total term of imprisonment of 3 years to commence on 12 August 2006 and to expire on 11 August 2009.
(c) in respect of count 4, the respondent is sentenced to a non-parole period of 2 years to commence on 12 February 2007 and to expire on 11 February 2009, with a total term of imprisonment of 3 years to commence on 12 February 2007 and to expire on 11 February 2010.


4 The sentence in respect of count 5 is quashed. In lieu thereof (and taking into account the matters on the Form 1 document) the respondent is sentenced to a non-parole period of 3 years to commence on 12 August 2006 and to expire on 11 August 2009, with a total term of imprisonment of 5 years to commence on 12 August 2006 and to expire on 11 August 2011.

5 The respondent will be eligible for release on parole on 11 August 2009.

55 HALL J: I agree with Buddin J.

**********