Regina v Abou-Jibal

[2000] NSWCCA 127

CITATION:	Regina -v- Abou-Jibal [2000] NSWCCA 127
FILE NUMBER(S):	CCA 60026 of 1999
HEARING DATE(S):	10/4/00
JUDGMENT DATE:	10 April 2000
PARTIES :	Regina Faouzi Abou-Jibal
JUDGMENT OF:	Dowd J at 1; Hulme J at 13

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Blanch DCCJ

COUNSEL :	Mr M.C. Marien - Crown Appellant in person
SOLICITORS:	S.E O'Connor - Crown
CATCHWORDS:	Sentence appeal - Aggravated robbery - gambling addiction
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912
DECISION:	Leave granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

No. 60026 of 1999
HULME J
DOWD J

REGINA -v- Faouzi Abou-Jibal

1 DOWD J: The applicant was sentenced to a minimum term of two years imprisonment to commence from 15 January 1999 to expire on 14 January 2001 and an additional term of 18 months from 15 January 2001 and to expire on 14 July 2002. This was as a result of a plea of guilty entered by the applicant on the day he was sentenced. The date of the offence was 6 October 1998. Blanch DCCJ sentenced the applicant on a charge of aggravated robbery (maliciously inflict actual bodily harm). Contrary to s.95(1) of the Crimes Act 1900 (“the Act”) which carries a maximum penalty of 20 years imprisonment. The applicant had been allowed to bail and remained on bail until date of sentence.

2   The applicant, who is unrepresented, has submitted a letter to the court and has today made oral submissions in respect of the sentence. The sentencing occurred after a hearing which involved considerable evidence and a considerable canvassing of the subjective issues. His Honour gave a detailed and careful judgment dealing with the matters before him.

3   The applicant had, at the time, a number of previous convictions, one of which involved an appeal against a Melbourne County Court conviction whereby a sentence was suspended for two years and he was obliged to pay a large amount in compensation. That suspended sentence was current at the time of the offence and for some time thereafter.

4   The facts of the case were that on the day of the offence the applicant gambled away the sum of $5,000, a deposit to be given to his father. He discussed with another person, who has not been identified, the commission of a criminal offence and shortly thereafter the applicant waited outside a bank at Silverwater and as the victim walked up the stairs, she felt her handbag being pulled from her. She held on to her bag and as a result was pulled down the stairs. She was conveyed to hospital as a result of a fractured left collar bone, a swollen left ankle, sore left side, sore ribs and abrasions. She, at the time, was a married woman of 55 years of age. Clearly, it was a serious offence and not just simply a bag snatching.

5   His Honour found, contrary to what was submitted to him, that it was not a spur of the moment or impulsive offence. The applicant here today has suggested that it was not premeditated; that it was, in fact, an impulse and that his addiction took over. The findings that his Honour made were, in fact, based on the evidence that the applicant had discussed the matter with another man and even though there was then only a short period of time before the offence, there was some degree of premeditation. It was not a momentary impulse, as contended. It was, as his Honour found, a serious act of criminality involving a perfectly innocent victim who ended up in hospital merely in going about her every day life.

6   The applicant has today put to the court that if there had been a pre-sentence report, it would have explained the extent of the gambling addiction and would have resulted in a lesser penalty. The court had the advantage, not only of sworn evidence but in fact had a detailed psychologist's report and on the evidence, taking into account what is normally contained in a pre-sentence report, it is difficult to see how much more information could have been provided, since the court has today been provided with very little more information than his Honour had at the time.

7   The applicant has emphasised in his oral submissions how very serious was his gambling addiction and assures the court of his intention, if he is allowed a shortening of the sentence, to go about his business and to, in fact, become qualified and accept his responsibilities. He wishes to assist his newborn son and fiancee. He says he wants to get on with his life and that his future proposed employer will support him.

8   His further complaint is that his barrister was not well aware of his case but that it was his instructing paralegal that understood the case. He also put before the court that the court should take into account the education courses that he has done. He is, of course, to be commended on those education courses but that is not a matter which assists this court in its examination of the matters before it. The applicant must show firstly that leave should be granted and then must show that the court should be of the opinion that some other sentence than the sentence which has been imposed is warranted.

9   This, as I have said, is a very serious offence in which his Honour has carefully examined what other courts have done in similar circumstances and has emphasised the fact that, although his Honour could understand the personal circumstances of the prisoner, that is not the yardstick by which the courts are to be administered. It is not clear that his Honour could have obtained any further information than he did because, in fact, this court has gained little other than the assertion, I suspect sincerely held by the applicant, that he is having a difficult time in prison. I accept that to get protection is a very two-edged sword in the prison system and it is very difficult to stop one's reputation not causing one to be the butt of assaults and indeed other more serious criminal matters and I therefore suspect that he is doing his time hard. The gambling problem will require some considerable assistance when he is released from custody.

10   This offence caused very serious injury to the woman, the victim of it. His Honour, in fixing sentence, took into account that very recognizance that I have mentioned, in breach of which this offence was occurring.

11   The applicant has drawn an analogy between drug addiction and gambling addiction. Indeed, there is a tendency for addicts of both sorts to over-estimate their capacity to deal with their addictions. Clearly, the applicant here has a very serious addiction. However, his Honour took into account the importance of general deterrence and specific deterrence for such a violent robbery offence and the court is well aware of those authorities which oblige courts to take into account the seriousness of the offence and the need for deterrence.

12 This is a court of error. No error in the sentence of his Honour has been shown. The subjective circumstances are such that one can understand the case put by the applicant and I therefore propose that leave be granted to appeal but I would dismiss the appeal in accordance with s.6(3) of the Criminal Appeal Act 1912.

13   HULME J: I agree with the order proposed and with his Honour's reasons. I would add only this: That it is important that the courts make clear to persons who are in the applicant's situation prior to the commencement of the subject offence, that there is a very severe limit on the number of times which the courts are prepared to extend chances for leniency. The applicant might well have been sentenced, prior to this offence, to significantly heavier sentences than he was. In fact, what happened was, this was the occasion on which the court called a stop, reflecting indeed the fact that this was a more serious offence than he had committed previously. One may only hope that this will be the last time he ever appears before a court.

14   The order of the court is that leave to appeal is granted. The appeal is dismissed.

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