Regina v Eddie Azzi

[2004] NSWCCA 398

CITATION:	Regina v Eddie AZZI [2004] NSWCCA 398
HEARING DATE(S):	10th November 2004
JUDGMENT DATE:	26 November 2004
JUDGMENT OF:	Dunford J at 1; Simpson J at 2; Hidden J at 3
DECISION:	Leave to appeal granted, appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - application for leave to appeal against sentence - attempted sexual intercourse without consent - indecent assault (4) - offences committed by hairdresser upon female clients - challenge to findings of fact by sentencing judge - challenge to structure of sentences
LEGISLATION CITED:	Criminal Appeal Act Crimes Act
CASES CITED:	The Queen v De Simoni (1981) Pearce v The Queen (1998)
PARTIES :	Regina (respondent) Eddie AZZI (applicant)
FILE NUMBER(S):	CCA 2004/2050
COUNSEL:	P Power SC (Crown) G Nicholson QC (applicant)
SOLICITORS:	S Kavanagh (Crown) Patricia White & Associates (applicant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	31/01/2002; 02/11/0092
LOWER COURT JUDICIAL OFFICER :	Steward ADCJ

2004/2050 CCAP

DUNFORD J
SIMPSON J
HIDDEN J

Friday 26 November 2004

Regina v Eddie AZZI

Judgment

1 DUNFORD J: I agree with Hidden J.

2 SIMPSON J: I agree with Hidden J.

3 HIDDEN J: The applicant, Eddie Azzi, pleaded guilty in the District Court to a charge of attempted sexual intercourse without consent, an offence under s61I and s61P of the Crimes Act which carries a maximum sentence of fourteen years imprisonment, and four charges of indecent assault, an offence under s61L of the Act which carries a maximum sentence of five years. He also asked that two offences of committing an act of indecency towards a person above the age of sixteen years (s61N(2)) be taken into account on a Form 1. On each of the charges of indecent assault, taking into account the offences on the Form 1, he was sentenced to concurrent fixed terms of imprisonment for two years, to commence on 20 June 2003. On the charge of attempted sexual intercourse without consent he was sentenced to a wholly cumulative term of imprisonment for four years with a non-parole period of two years. The aggregate sentence, then, was six years with a non-parole period of four years. He seeks leave to appeal against those sentences.

4 The application is several months out of time but an explanation for the delay has been provided. At the hearing, there being no opposition from the Crown, the Court granted an extension of time.

Facts

5 The offences were committed against four adult women, to whom I shall refer only by their initials. The charge of attempted sexual intercourse without consent and the first charge of indecent assault arose out of the same incident, involving the complainant, AH. The other four charges of indecent assault arose from separate incidents involving the complainants, RC, JH and AC. The incidents involving JH and AC also gave rise to the two matters on the Form 1.

6 Before the sentencing judge was an agreed statement of facts. Substituting initials for the names of the complainants, this is how his Honour set them out in his remarks:

The prisoner is the owner of a well known and established hair salon known as Eddie Azzi which is located on Level 1 of Skygardens in the Pitt Street Mall in Sydney. The prisoner has owned and operated this salon for the past eleven years or so.
During the afternoon of Wednesday, 6 October 1999 the victim, AH, attended a prearranged appointment for a haircut and hairdressing matters at the prisoner’s hair salon. The prisoner cut and treated her hair. But during the haircut the victim stated that her haircut was taking longer than usual and she was concerned because of where she had parked her car. The prisoner arranged with security people for her to park her car under the Skygarden building. But when the victim returned to the salon she noticed that the majority of staff had left and there was only one staff member along with the accused left in the salon.
The prisoner continued to blow dry the victim’s hair as the remaining staff member left. The prisoner locked the door to the salon. The victim felt uneasy. The prisoner then led the victim to an office where she undressed on his instructions. The prisoner attempted to remove the victim’s underwear, however, she held on to that to prevent him pulling garments from her. The prisoner then fondled the victim’s breasts and pulled her against himself, rubbing his erect penis against the victim’s pubic hair.
The prisoner then led the victim to the beauty section of the salon which the victim states had a spa and a massage table therein. The victim lay on a massage table on the instruction of the prisoner who then climbed on top of her. The prisoner attempted to have sexual intercourse with her. The victim refused this and told the prisoner that she was a virgin and that she would not have intercourse with him. The victim resisted penetration by holding on to her underpants. The prisoner then requested the victim to perform oral sex on him. The victim refused. The prisoner commenced to masturbate and at the same time pulled the victim by the hair close to his penis and ejaculated on her face. The prisoner then fixed the victim’s hair which was in somewhat of a mess from where he had been pulling it.
On Wednesday the 2 February 2000 the victim, RC, a 29 year old female, attended the premises of Eddie Azzi Hair Salon for a haircut. The prisoner cut the victim’s hair and engaged in general conversation while doing so. The time was about 5.30pm and a booking had been previously made. During the haircut the prisoner offered the victim a glass of champagne or wine, which the victim declined.
During the haircut the prisoner showed interest in a book belonging to the victim and later began to read it while the victim’s hair was being blow dried. At the completion of the hair treatment the prisoner took the victim’s book to the office located at the rear of the salon. By this stage most of the clients of the salon and the staff thereof had left. The victim went to the office to retrieve her book which had been placed on top of a desk in the office. When the victim reached forward to collect her book the prisoner blocked the victim’s access by standing directly in front of her. The prisoner then grabbed the victim with both his arms and pulled her towards him holding her close to his body, groin against groin. The victim was able to feel the erect penis of the prisoner against her body. The prisoner fondled the victim’s behind and kissed her on the right side of the neck.
The victim broke away by twisting and turning her body. The victim immediately walked out of the office but was unable to get out of the salon as the front door was locked and there was no other person or persons in the salon. The prisoner informed the victim that he did not have a key and the only way out was to use the internal lifts to the garage. The victim reluctantly agreed to go with him and both of them left the salon together.
About 3pm on Wednesday 30 November 2000 the victim, JH, a 20 year old female went to the premises of Eddie Azzi Hair Salon for a haircut. At the front counter the prisoner introduced himself to the victim and said that he would be cutting her hair. While cutting the victim’s hair the prisoner offered her a glass of wine which she accepted.
While the victim’s hair was being cut there was general conversation between the two. After cutting the victim’s hair the prisoner asked what the victim was doing immediately afterwards and invited her to stay for a while. The time was about 5pm. The victim was invited into the office located at the rear of the salon. Both the prisoner and the victim sat at a desk in the office and the prisoner offered the victim a second glass of wine which she accepted. The two engaged in general conversation. Then the prisoner began talking about sex, asking the victim how she liked to have sex and what turned her on. The prisoner asked the victim if she like to watch people masturbate and undid his trousers removing his penis. The prisoner then masturbated himself in front of the victim. The prisoner continued to masturbate himself stating:
“Imagine me licking your tits. Imagine you
sucking my cock.”

The prisoner stopped and asked if he was making the victim feel uncomfortable. She stated that he was. The prisoner pulled his trousers up and then hugged the victim placing his hand up her shirt and kissing her on the cheek. The victim removed the hands of the prisoner from her shirt and the prisoner stood up and removed his penis again, continuing to masturbate directly in front of the victim’s face.
The victim then kept telling the prisoner she had to go, however, the prisoner was standing between her and the doorway. The office door was closed.
After a time the prisoner ceased to masturbate. The victim opened the office door and walked out.
Prior to the victim leaving the accused asked the victim for the amount of $200 for a haircut. The victim paid the bill and left the salon. When leaving the building the victim had trouble walking as she was feeling numb.
About 5pm on Tuesday 19 June 2001 the victim, AC, a 37 year old female, attended the premises of Eddie Azzi Hair Salon for a haircut. The prisoner introduced himself to the victim and later cut her hair. While cutting the victim’s hair the prisoner offered her a glass of wine which she accepted. At the completion of the haircut the victim paid $260. The prisoner offered the victim another glass of wine which she accepted. The prisoner suggested the victim see his newly renovated beauty parlour and escorted her to it.
When in the beauty parlour the prisoner sat the victim down and stepped into the spa bath and stood directly in front of her. The prisoner removed his penis from his trousers and began masturbating himself saying:
“I’m not going to have sex with you. You just enjoy your wine and watch.”
The prisoner took hold of the victim’s hand and placed it on his penis asking the victim to masturbate him. The prisoner slapped the victim’s behind, as it is described here, and placed his hand up her shirt exposing her breasts. The prisoner then began sucking on the victim’s breasts. The victim felt scared of the prisoner. The victim then lay down on a massage table on the instructions of the prisoner who masturbated himself in front of her, ejaculating over her face. The victim washed her face and the prisoner unlocked the front door to the salon allowing the victim to leave.
The prisoner was arrested on 8 August 2001 and interviewed in the presence of his solicitor regarding these matters. He declined to comment on advice from his solicitor which he was entitled to do and he was later charged.

7 Three of the four complainants made victim impact statements, which led his Honour to observe:

There can be no doubt that the prisoner’s unwanted physical sexual assaults on these completely innocent women have had seriously deleterious effects on them, both physically and psychologically.

8 His Honour viewed the offences as objectively very serious. He observed that there was no suggestion that any of the victims had encouraged the applicant’s advances in any way, and that they had obeyed him because they were frightened of him. He described the offences as “well planned” and “predatory” adding that they “involved a breach of trust”. It will be necessary to examine his Honour’s assessment of the objective gravity of the offences more closely when dealing with some of the grounds of the present application.

Subjective case

9 The applicant was aged between thirty-eight and forty at the time of the offences and is now forty-three. He has no previous convictions. He was born and raised in Lebanon, where an otherwise happy childhood was tragically disturbed by the civil war in that country. In 1975, when he was only a teenager, he saw his brother and grandfather shot. His father died in the same year and, although it is not entirely clear, I take it that he was also killed in the war.

10 The applicant trained as a hairdresser and married before emigrating to this country in the early 1980s. He has three children and it seems that, despite the offences, he has enjoyed the continuing support of his wife. Before his Honour were a number of testimonials from responsible citizens, from which it appeared that he was a highly regarded citizen who was also involved in valuable charity work, and that the offences were entirely out of character.

11 To the author of a pre-sentence report he attributed the offences to the fact that he was under financial pressure at the time because of a business dispute and had increased his drinking, although the Probation and Parole officer noted that he “did not attempt to minimise his behaviour”. Also before his Honour was a psychological report, the author of which assessed the applicant “as not being at significant risk of sexually reoffending, provided that all appropriate safeguards are observed”. The psychologist added, however, that he would “benefit from therapy to address background and lifestyle factors related to his offending”.

12 His Honour assessed the risk of the applicant’s re-offending as “small”. He noted that the applicant had suffered considerable financial hardship as a result of the offences, and had brought disgrace upon himself and his family. His Honour described the utilitarian value of the pleas of guilty as “considerable” and accepted that they demonstrated remorse. He considered that the pleas warranted a twenty percent reduction of the overall sentence which would otherwise have been appropriate. As is apparent from the structure of the sentences, he found special circumstances.

The application

13 In this Court Mr Nicholson QC, for the applicant, challenged the sentencing judge’s assessment of the gravity of the offences by reference to some particular observations he made about them. He also submitted that his Honour fell into error in passing a cumulative sentence on the charge of attempted sexual intercourse without consent.

14 The first of the challenged observations about the gravity of the offences was that they constituted “a breach of trust”. This had been the subject of submissions by the Crown prosecutor and counsel for the applicant in the sentence proceedings (neither of whom appeared in this Court). The Crown prosecutor had argued that a hairdresser such as the applicant occupied “a position of care and protection” in relation to his clients, given the incidence of physical contact in the course of hairdressing and beauty treatment. Counsel for the applicant had argued that the applicant’s profession involved a measure of “flattery and personal intimacy” which created “danger zones” not easily recognised by someone in his position. However, he submitted that the relationship of hairdresser and client could not be placed in the same category as relationships of dependence often referred to in this context as involving trust, such as that between a parent or carer and a child, or between doctor and patient.

15 It is necessary to read his Honour’s reference to “breach of trust” in its context within his remarks. What his Honour said was this:

It is clear that objectively these are very serious offences. They were committed by an individual in a position where his clients, these victims, were entitled to expect that they could trust the prisoner and would be treated with respect and decency and not like chattels for his personal sexual gratification.

Having observed that the victims had done nothing to encourage the applicant’s advances and that they had obeyed him because they were “terrified”, his Honour continued:

He seems to have thought that it was his entitlement to act as he did. All these offences were well planned, predatory and involved a breach of trust.

16 It is true that the expression “breach of trust” is something of a term of art in this context, recognising the seriousness of offences of this kind committed by a man whose relationship with the victim is one of authority or influence. However, I do not understand his Honour to have found that the relationship between the applicant and his victims fell into that category. His reference to “breach of trust” appears to have been simply to the trust which, he had earlier said, the victims were entitled to have in being treated by the applicant appropriately and not as objects for his sexual gratification.

17 His Honour did not expressly deal with counsel’s arguments about this matter in his remarks, and I do not read what he said as the resolution of that issue in favour of the Crown. He later referred to defence counsel’s argument that the applicant might not have recognised the danger arising from the flattery and intimacy involved in his profession, only to reject it with the observation that there was not “even a hint of fault on the part of the victims” and that any flirting “was by the prisoner, and not by the victims”. The Crown prosecutor in this Court adopted the argument of his predecessor in the sentence proceedings, submitting that the position of hairdresser/beauty therapist should be likened to that of a health professional. However, although it is significant that the applicant’s profession may necessitate physical contact with a degree of intimacy, I would not characterise his position in that way.

18 Next, Mr Nicholson submitted that it was not open on the agreed facts to describe the offences as “well planned” and “predatory”. He argued that, at most, they were opportunistic. This also had been the subject of argument by counsel before his Honour.

19 In my view, although the language is perhaps a little colourful, it was a characterisation of the offences which was open to his Honour. The notions of planning and predation go hand in hand, conveying that the applicant was on the look out for opportunities to derive sexual pleasure from his unsuspecting clients. In each case the offences were committed at the end of the working day, when he was alone with them. Indeed, in the case of AH, the inference is available that he prolonged her hairdressing until his staff had left the salon. In each case he then led his victim to a more private part of the premises: in the case of AC, the beauty parlour and, on the other occasions, the office. With RC and AC he achieved this by subterfuge: in the case of RC, by taking her book to his office and, in the case of AC, by inviting her to inspect his newly renovated beauty parlour.

20 For what significance it might have, he also offered wine to all the complainants except AH (whose age is not disclosed but who may have been younger than the others). However, it may be that offering wine to his clients was a common practice.

21 Lastly, Mr Nicholson took issue with a further observation by his Honour:

Each offence constituted a separate, well planned, predatory and cowardly attack on four different women, who were, in effect, his prisoners.

22 Mr Nicholson argued that the suggestion of imprisonment was also not available on the agreed facts. Indeed, he argued that his Honour had fallen into error by sentencing the applicant on the basis that, in addition to the offences to which he had pleaded guilty, he was guilty of the offence under s86 of the Crimes Act of detaining his victims for advantage, with which he had not been charged: cf The Queen v De Simoni (1981) 147 CLR 383. Again, while the expression used by his Honour may be rather colourful, I do not read this passage of his remarks in that way. Particularly is this so given that the term “prisoners” was qualified by the expression “in effect”. That phrase was not inapt to describe a feature common to each of the incidents.

23 In the case of AH, the applicant locked the door of the salon and she felt uneasy. RC also found the salon door locked when she tried to leave after the indecent assault (although the applicant then escorted her out of the building by an internal lift). When JH told the applicant she had to go after the indecent assault upon her, he stood between her and the closed office door until he had finished masturbating. In the case of AC the salon door was also locked and, when the indecent assault upon her came to an end, he unlocked it to allow her to leave. The facts give rise to the inference that none of the victims felt free to leave while his sexual misconduct was in progress.

24 I am not persuaded than any of his Honour’s observations lead to the conclusion that he erred in his assessment of the gravity of the offences. Nor, indeed, does the aggregate sentence suggest that he did.

25 As I have said, the remaining basis of the application is the assertion that his Honour erred in accumulating the sentence on the charge of attempted sexual intercourse without consent. Mr Nicholson argued that that sentence should have been concurrent with the sentence on the second charge, the indecent assault upon AH, as it was part of the same incident.

26 His Honour expressly considered the question of how the sentences should be structured, referring to Pearce v The Queen (1998) 194 CLR 610 and related cases. It is true that the sentences might have been structured differently, for example, by passing concurrent sentences on the charges relating to AH but accumulating them upon the sentences for the remaining charges. In that event, the aggregate sentence would have been no different.

27 Consistently with the policy behind s6(3) of the Criminal Appeal Act, it is not the function of this Court to restructure sentences passed at first instance if it makes no difference to the overall result. As Mr Nicholson realistically acknowledged, the only question for us is whether the aggregate sentence is manifestly excessive as a reflection of the totality of the applicant’s criminality. I am not persuaded that it is. These were serious offences of their class, committed upon four women over a period of some twenty months. Even allowing for the fact that it was arrived at after a reduction for the applicant’s pleas of guilty and his remorse, I consider that the overall sentence of six years imprisonment was within the discretionary range properly open to his Honour. Equally, the effective non-parole period of four years, while affording the applicant the benefit of a finding of special circumstances, appropriately reflected considerations of retribution and deterrence.

28 I would grant leave to appeal but dismiss the appeal.

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Last Modified: 11/29/2004