Rahme v Regina

[2006] NSWCCA 96

CITATION:	Rahme v Regina [2006] NSWCCA 96
HEARING DATE(S):	27/03/2006
JUDGMENT DATE:	13 April 2006
JUDGMENT OF:	Grove J at 1; Adams J at 2; Hislop J at 3
DECISION:	1. Leave to appeal granted; 2. Appeal as to sentence allowed; 3. The sentence imposed by his Honour Judge Finnane on 30 September 2005 is quashed; 4. In lieu thereof the applicant is sentenced to a non-parole period of one year and three months commencing on 4 May 2005 and expiring on 3 August 2006. The balance of the term of one year and nine months is to commence on 4 August 2006 and expire on 3 May 2008; 5. In accordance with the requirements of the Crimes (Sentencing Procedure) Act 1999 s 50 the Court directs the release of the applicant on parole at the end of the non-parole period.
CATCHWORDS:	Criminal law - Sentence - Failure to take into account discount for plea of guilty.
LEGISLATION CITED:	Crimes Act 1900 - s 195(b) Crimes (Sentencing Procedure) Act 1999 - s 50
CASES CITED:	Regina v Shenton [2003] NSWCCA 346 R v Thomson (2000) 49 NSWLR 383
PARTIES:	Applicant - Mouawad Rahme Respondent - Regina
FILE NUMBER(S):	CCA 2006/347
COUNSEL:	Applicant - Mr D. Carroll Respondent - Ms D. Woodburne
SOLICITORS:	Applicant - Legal Aid Commission of New South Wales Respondent - Director of Public Prosecutions (New South Wales)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0747
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ

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2006/347

GROVE J
ADAMS J
HISLOP J

13 April 2006

Mouawad RAHME v REGINA

Judgment

1 GROVE J: I agree with Hislop J.

2 ADAMS J: I agree with Hislop J.

Introduction

3 On 25 July 2005 the applicant pleaded guilty at Burwood Local Court to the offence of maliciously destroy or damage property by means of fire contrary to the Crimes Act 1900 s 195(b). The maximum penalty for such an offence is 10 years imprisonment.

4 On 30 September 2005 the applicant was sentenced for that offence by Finnane DCJ to a non parole period of 1 year and 3 months commencing on 4 May 2005 and expiring on 3 August 2006 with the balance of the term of the sentence of 2 years and 9 months to commence on 4 August 2006 and expire on 3 May 2009.

5 The circumstances of the offence were that on 4 May 2005 the applicant set fire to the family home. The sentencing Judge found that the applicant was a man of good character who committed the offence whilst he was suffering from a severe mental disorder and possibly from the effects of an earlier suicide attempt. His Honour was of the opinion that the applicant did not seek to burn the house down for the purpose of gain or revenge but rather because of some overflow of emotions leading to complete irrationality of conduct. His Honour considered it most unlikely the applicant would ever offend again.

6 His Honour in his remarks on sentence said:

[The applicant] is a man for whom the finding of special circumstances should be made. What he really needs after serving a fairly short non-parole period , is to be subject to supervision for a longer time during which, he should be able to get some assistance in dealing with anger, and perhaps he should get assistance in relation to his family problems. For that reason I propose to give him a non-parole period of 15 months with a head sentence of four years. And that is very much less than the normal ratio between head sentence and non-parole period which would be closer to three years. … So far as the principle of retribution is concerned that is met by imposing upon him a head sentence of four years. It makes it plain that any person who burns a house down, even if it is one that he partly owns, can expect to receive a substantial sentence.

7 His Honour made no reference to the plea of guilty in his remarks on sentence or in the course of submissions on sentence.

8 The applicant has sought leave to appeal against sentence on the ground that his Honour omitted to discount the sentence for the guilty plea.

Discussion

9 The applicant submitted that he had pleaded guilty at the earliest available opportunity and accordingly his sentence should have been discounted by 25% in recognition of the utilitarian value of the plea – R v Thomson (2000) 49 NSWLR 383. He further submitted there was no evidence the sentencing Judge had discounted the sentence for the plea. He relied upon Regina v Shenton [2003] NSWCCA 346 in which Handley JA held at [12]:

… a sentence which should be discounted for a plea of guilty, must not only be properly discounted, it should be manifestly be seen to be properly discounted.

10 The Crown accepted his Honour did not expressly state he had taken the guilty plea into account when sentencing the applicant. However, it was submitted, such should be inferred as the fact of the plea was expressly referred to by both counsel in addressing his Honour on sentence, the material tendered to his Honour referred to the early admission of guilt and the plea, his Honour proceeded to sentence upon completion of the submissions and the sentence was consistent with an appropriate discount for the guilty plea. In those circumstances it would be quite improbable his Honour would have overlooked the fact of the plea.

11 Applicant’s counsel referred his Honour to statistics from the Judicial Commission of New South Wales. The Crown referred his Honour to a number of cases which had similarities to the present both as to the facts and in that there had been a plea of guilty. In three of those cases the offender had been sentenced to a term of four years imprisonment following a plea of guilty.

12 His Honour said in relation to this material:

I have looked at the statistics that have been given to me. I have looked at some cases to which I have been referred. It would seem to me that a head sentence of three to four years is a fairly normal type of sentence in this sort of situation.

13 The statistics to which his Honour referred reveal that the head sentence for 35% of all s 195(b) offenders was 36 months with a further 10% being sentenced to 48 months and that the head sentence for 38% of all s 195(b) offenders who pleaded guilty and had no prior convictions was 36 months with a further 13% being sentenced to 48 months imprisonment

14 In these circumstances the choice by his Honour of a head sentence of four years is equivocal. It may indicate that his Honour had in mind an undiscounted figure or a discounted figure. The fact that there was no reference to the plea of guilty in his Honour’s comments during the course of submissions or in his remarks on sentence, either in respect of its utilitarian value or as evidence of contrition, causes me to infer that his Honour inadvertently overlooked the question of a discount for the plea of guilty when sentencing the applicant. As this Court observed v R v Thomson at [160(1)]:

A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

15 There is no reason why, in the proper exercise of the judicial discretion, a discount of 25% of the overall sentence would not have been appropriate in this case. A reduction of the total term to three years should be made to allow for such discount.

16 However the non-parole period was selected by his Honour as appropriate having regard to all of the relevant subjective circumstances. It was not the result of simply varying the statutory ratio by a percentage. The non-parole period was, as his Honour observed, very much less than the normal ratio. In my opinion it remains an appropriate non parole period even though the application of a plea discount reduces the total sentence to 3 years. In these circumstances the Court is obliged to order the applicant’s release at the expiry of the non-parole period.

17 At the time of the offence the applicant was subject to a telephone interim apprehended violence order which prohibited him from approaching the family home. Although his English was poor despite living in Australia for nearly 30 years, it is apparent from his interview with police that he was well aware of the terms of the apprehended violence order. This was an aggravating factor which contributed to the overall criminality of his offence. In my opinion the overall criminality is such that a lesser non parole period is not warranted in law.

Orders

18 I propose the following orders:

1. Leave to appeal granted.

2. Appeal as to sentence allowed.

3. The sentence imposed by his Honour Judge Finnane on 30 September 2005 is quashed.

4. In lieu thereof the applicant is sentenced to a non-parole period of one year and three months commencing on 4 May 2005 and expiring on 3 August 2006. The balance of the term of one year and nine months is to commence on 4 August 2006 and expire on 3 May 2008.

5. In accordance with the requirements of the Crimes (Sentencing Procedure) Act 1999 s 50 the Court directs the release of the applicant on parole at the end of the non-parole period.

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