Regina v Rahme; Regina v El-Hayek

[2004] NSWCCA 226

CITATION:	Regina v Rahme; Regina v El-Hayek [2004] NSWCCA 226
HEARING DATE(S):	11 June 2004
JUDGMENT DATE:	7 July 2004
JUDGMENT OF:	Dowd J at 1; Hislop J at 2; Smart AJ at 3
DECISION:	(Rahme) See para 57 (El Hayek) See para 71
CATCHWORDS:	Application of principles of totality to setting of non-parole periods when sentences accumulated - need to allow adeqiuate periods on parole when serving long sentences
LEGISLATION CITED:	Nil
CASES CITED:	Nil
PARTIES :	Regina v John Claude Rahme Regina v Nakhle El-Hayek
FILE NUMBER(S):	CCA 60074/04; 60076/04
COUNSEL:	(Rahme) Mr Ramage QC (El-Hayek) Mr R Button (Crown) Mr G Rowling
SOLICITORS:	(Rahme) E Rahme (El-Hayek) S O'Connor (Crown) S Kavanagh

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	(Rahme) 2/11/0949;01/11/0408 (El-Hayek) 01/11/0408
LOWER COURT JUDICIAL OFFICER :	Solomon DCJ & Stewart ADCJ

60076/04

DOWD J

HISLOP J

SMART AJ

Wednesday, 7 July 2004

Regina v John Claude RAHME
Regina v Nakhle EL-HAYEK

Judgment

1. DOWD J: I have read the judgment of Smart AJ in draft form I agree with the proposed orders and his reasons therefor.

2. HISLOP J: I agree with Smart AJ.

3. SMART AJ: John Claude Rahme seeks leave to appeal against the following sentences:

Sentences imposed 8 November 2002

(1)	Armed robbery with a dangerous weapon (gun) (Maximum penalty 25 years)	22/7/00 Belmore Park Nth Parramatta	6 years imprisonment; NPP 4.5 years from 10/11/01
(2)	Demand money with menaces (maximum penalty 10 years)	22/7/00 Belmore Park Nth Parramatta	Fixed term of 3.5 years from 10/11/01
(3)	Sexual intercourse with a person (KB) above age of 10 years and under the age of 16 years, namely 15 years (maximum penalty 8 years)	27/7/00 at Parramatta	2.5 years imprisonment from 10/5/06; NPP 1.5 years ending 9/11/07
(4)	Supply methylamphetamine (maximum penalty 15 years)	27/7/00 at Parramatta	3.5 years imprisonment from 10/5/06; NPP 1.5 years ending 9/11/07

4. Thus Stewart ADCJ effectively sentenced the offender to a total term of imprisonment of 8 years from 10 November 2001 to 9 November 2009 with a non-parole period of 6 years ending on 9 November 2007.

Judge Solomon

Sentences imposed 16 July 2003

INDICTMENT OF 18 NOVEMBER 2002
(1)	Armed robbery with a dangerous weapon (gun) (maximum penalty 25 years)	28/7/00 at Nth Sydney TAFE College	7 years imprisonment from 28/5/05; NPP 4 years ending 27/5/09
(2)	Possess firearm (maximum penalty 8 years)	28/7/00 at Parramatta	Fixed term of imprisonment of 2 years from 28/5/05
INDICTMENT OF 23 MAY 2003
(3)	Sexual intercourse with a person (BK) over 10 and under 16, namely 15. (maximum penalty 8 years) (taking into account offences on Form 1 namely 3 counts of sexual intercourse with a minor)	27 July 2000 at Parramatta	2½ years imprisonment from 28 May 2009; NPP of 1½ years ending 27/11/10
INDICTMENT OF 23 SEPTEMBER 2002
(1)	Do act with intent to influence witness (maximum penalty 7 years)	4 May 2002 at Potts Point	2 years imprisonment from 28/11/10; NPP of 1 year ending 27/11/11

5. The sentences imposed by Solomon DCJ on the counts of the indictment of 18 November 2002 were made partially concurrent with the sentences imposed by Stewart ADCJ as was that on the indictment of 23 May 2003 (Number 3 above). The sentences imposed by Solomon DCJ increased the offender's effective total sentence to 11 years with an effective non-parole period of 10 years 17 days. The larger increase was in the total non-parole period, that is 4 years 17 days. However, both these figures need adjustment because of the periods of pre-sentence custody taken into account. With these adjustments the effective sentences become 11 years 5.5 months and the total non-parole periods amount to 10 years 5.5 months. On one view it would become 10 years 6 months.

6. The offender pleaded not guilty to all charges for which he was sentenced by Stewart ADCJ and was found guilty by a jury. He also pleaded not guilty to the armed robbery charge of 28 July 2000 and was found guilty by a jury. The offender pleaded guilty to the remaining charges on which Solomon DCJ sentenced him.

Nakhle El-Hayek

7. This offender was sentenced by Stewart ADCJ to 5 years 4 months from 11 January 2002 with a non-parole period of 4 years for the offence of armed robbery with a dangerous weapon (a gun) on 22 July 2000 at Belmore Park, North Parramatta. He was a co-offender along with Mr Rahme. Mr El-Hayek sought leave to appeal against his sentence but his appeal was dismissed by this Court on 27 February 2004.

8. Mr El-Hayek now seeks leave to appeal against the following sentences imposed upon him by Judge Solomon on 16 July 2003.

(1)	Armed robbery with a dangerous weapon (gun) (maximum penalty 25 years)	28/7/00 North Sydney TAFE College	7 years imprisonment from 28/10/03; NPP 4 years ending 27/10/07
(2)	Sexual intercourse with a person over 10 and under 16 years, namely 15 years (maximum penalty 9 years) (taking into account offences on Form 1, namely, sexual intercourse with a person under the age of 16 and one count of assault)	22/7/00 Parramatta	2 years 6 months imprisonment from 28/10/07; NPP 18 months ending 27 April 2009

9. Taking into account all sentences, Mr El-Hayek is serving an aggregate sentence of 8 years 9 months and 16 days to date from 11 January 2002 and expire on 27 October 2010 with an aggregate non-parole period of 7 years 3 months and 16 days to date from 11 January 2002 and expire on 27 April 2009.

10. Mr El-Hayek concentrated his attack on the length of the aggregate non-parole period.

11. Stewart ADCJ found the following facts as to Mr Rahme:

12. On Friday, 21 July 2000 KB, BK, BU (three girls each aged 15) and MA (a male aged 16) met with another group of four, who were a little older, namely MH (a girl), AR (a male), and two other males known as R and P and travelled in the vehicle belonging to one of the members of the second group. There was a general understanding that they would drive towards the city. About 12.28am on 22 July 2000, MH, then a passenger in the vehicle telephoned Mr El-Hayek and arranged to meet him at Belmore Park. The vehicle with its eight passengers arrived there first. A few minutes later the three offenders, Messrs El-Hayek, Melan and Rahme, arrived in two cars. MH and AR were sitting at a log fence at the front of their vehicle. The other six passengers were still in the vehicle. Mr El-Hayek first spoke to MH. The three offenders gathered at the vehicle, with Messrs Rahme and El-Hayek producing guns.

13. Mr Rahme directed the six occupants of the vehicle to leave it and to produce their valuables. Outside the vehicle the three offenders searched the young persons bodily as well as searching their bags, wallets and purses. Mr El-Hayek searched through the vehicle. At all times the guns of the offenders were visible to the young persons.

14. MA was singled out for special attention. He was forced to remove an oriental style necklace to which a dragon pendant was attached. Mr Rahme returned the necklace but kept the pendant. The contents of MA's wallet and his mobile phone were taken from him. The necklace was recovered by police when they arrested the three offenders on 28 July 2000 in Room 315 of the Pacific International Hotel at Parramatta.

15. While at the park Mr Rahme demanded that MA disclose his bank account pin number. MA gave a false number. Mr Rahme sent one of the others to try to access the account but he was unsuccessful. Mr Rahme then threatened MA with his gun and demanded that he produce a sum of money, either $2000 or $3000, the following day. Mr Rahme told MA that he knew where he lived and that he (Rahme) would attend MA's home the following day to collect the money. MA told Mr Rahme that he would not be able to produce such a large sum of money by the deadline. Mr Rahme replied, "That's your problem". About this time one of the guns was discharged close to MA's head.

16. The three offenders then left the scene in their two cars, with Messrs Mr El-Hayek and Melan driving KB, BK and BU (the three 15 year old girls) to the Courtyard Marriott Hotel at Parramatta. The vehicle in which the four young people had arrived was also driven from the scene. After dropping MH, R and P (the other two males) at their homes, AR drove MA to Bondi Beach where they waited until daylight.

17. MA feared that Mr Rahme and his associates would make good their threat to come to his parents' home and inflict violence on them if they did not have the sum of money demanded. MA wandered around Castle Hill for most of that Saturday (22 July) and did not return home until Sunday 23 July 2000. His parents had already reported him to police as a missing person.

18. When Messrs El-Hayek and Melan, KB, BK and BU arrived at the Courtyard Marriott Hotel, Mr Melan booked a room. The three girls were taken to that room and were later joined by Mr Rahme. The three girls accepted Mr Rahme's invitation to participate and inhaled a quantity of the drugs produced by Mr Rahme. They believed it was "speed", that is, of the amphetamine family. Mr Rahme had in his possession an implement for the snorting of drugs.

19. During the following week KB and BK remained in the company of the three men at hotels in the Parramatta CBD. BU left on the afternoon of 23 July 2000. The girls consumed quantities of drugs supplied by Mr Rahme. Sometimes the drug was in powder form. The girls believed it was "speed". Mr Rahme also supplied blue and yellow tablets which looked like ecstasy tablets but may have been methylamphetamine tablets. About 8pm on 28 July 2000 police went to Room 315, Pacific International Hotel, Parramatta to which the offenders, KB and BK had shifted and took KB and BK to Castle Hill Police station where they were reunited with their mothers. KB and BK were tired, distressed and affected by drug intoxication. None of the offenders was in the room when police took KB and BK from it.

20. As to the sexual assault on 27 July 2000 Mr Rahme was lying on the bed in Room 315. Some powder, thought to be the drug methylamphetamine, was sprinkled on his penis. He ordered KB to suck it off. His penis was inserted in her mouth. Mr Rahme knew she was 15 years old. KB felt she had to comply with the order.

21. On 28 July 2000 about 10pm police returned to Room 315 by which time the three offenders had also returned. The police found a plastic bag containing white powder, a yellow coloured tablet and 10 blue tablets. Mr Rahme admitted the powder was his and that all the tablets were in his possession. The drugs, on analysis, contained methylamphetamine and had a total weight of 4.94 grams.

22. Mr Rahme was born on 17 February 1965 and had no prior convictions. He was separated from his wife. They have an 8 year old daughter. He was in a relationship at the time of the offence but that had ceased at the time of sentence. He is the youngest in a family of six children. His father was killed in an accident when Mr Rahme was two weeks old. He was supported by the remainder of his family (his mother and his siblings). They continue to support him. He left school aged 16, reaching Year 10. Stewart ADCJ accepted that Mr Rahme had been a hard worker.

23. As at October 2000 he denied to the Probation and Parole officer who prepared the Pre-Sentence Report that he was guilty of the armed robbery and that he was guilty of the sexual assault. He admitted that he had supplied a prohibited drug. At the sentence hearing Mr Rahme acknowledged that he was guilty of the robbery and sexual assault offences. Stewart ADCJ stated, "It seems his denial period in relation to those offences is over. At least that is something positive in the rehabilitation process". However, Mr Rahme did not admit that he had demanded money with menaces.

24. Stewart ADCJ was prepared to accept Mr Rahme's claim that he ceased his substance abuse upon entering into custody for these offences.

25. Stewart ADCJ, after noting that Mr Rahme came from fine family where he had been loved, supported and nurtured and that he could not blame anyone else, expressly denounced his behaviour. He emphasised specific and general deterrence.

26. Ms E J Collins, consultant psychologist, noted that Mr Rahme told her that the death of his brother-in-law in 1998 was the breaking point in his life. She thought that his mental state appeared to have deteriorated since his earlier separation from his wife. She also thought that he was likely to respond well to a lengthier period of parole, reporting stable accommodation, secure employment, family support and abstinence from drug abuse.

27. Because of the cumulation of sentences alone the judge found special circumstances and adjusted the non-parole period in the count charging supply methylamphetamine.

28. I summarise the facts found by Solomon DCJ based on a statement of the facts tendered by the Crown, without objection.

(a) Armed robbery – 28 July 2000 – North Sydney TAFE College

About 8pm three female employees were closing the canteen business when they were confronted by an armed intruder who pointed a small hand gun at them and ordered them into a cool room. They complied with the direction and were locked in the room for several minutes.

When the gunman returned he stated that he needed someone who could open the safe. The manageress replied that she did not know the combination but had keys to open the safe. The gunman replied that he knew the combination. He walked the manageress to the office at gunpoint. The office had already been disturbed and the staff members' handbags had been stashed into a bag. She opened the safe using her keys. The gunman removed the contents of the safe, estimated to be around $25,000 in cash. Whilst being directed at gunpoint back to the cool room the manageress saw a second male standing near the cool room door. Like the gunman, the second robber was dressed in a black leather jacket. After she was returned to the cool room the robbers tried to lock the door from the outside. The three women waited a short period before freeing themselves and then immediately contacted the TAFE security officer and the police.

When the police entered Room 315 of the Pacific International Hotel at 10pm, large amounts of coins and notes were scattered around the floor, together with handbags, drivers' licences and other items of property taken from the TAFE canteen office. $24,144.15 was seized.

From clothing found in the room and his facial acne Mr El-Hayek was identified as the gunman. When asked by the police Mr Rahme denied any involvement in the armed robbery.

There were some curious features. Mr Rahme stated that he had helped in the canteen's kitchen on occasions. Both Messrs Rahme and Melan were known to the manageress. Robert Rahme was the manager and a part-owner of the business. He lost personal savings of $2600 from the safe. He did not have any insurance cover against theft of moneys. One of the other part owners of the business was Maurice Melan, the uncle of Anthony Melan.

(b) Possession of firearm – J C Rahme

When police entered Room 315 about 10pm Mr Rahme was wearing a holster on his hip. During a search of the hotel room a Smith and Wesson .22 calibre revolver was found under the lounge. Four rounds were removed from the chamber and another two were found in the room. Mr Rahme said that the gun had been given to him a few years earlier by his brother-in-law. He could not explain why there were less than six bullets in the gun's chamber. The gun was last registered in South Australia to Gabby Rahme, with the licence having expired on 30 June 1999.

(c) Sexual Intercourse with a minor – J Rahme -

Earlier, the events at Belmore Park and the progress to the Courtyard Marriott Hotel, Parramatta, have been described. On 25 July 2000 KB and BK were taken to the Pacific International Hotel, Parramatta. On 27 July 2000 Mr Rahme lay naked on the bed in Room 315. A sexual incident occurred involving KB in respect of which Mr Rahme was convicted before Stewart ADCJ. Later that night (or possibly early the following morning) Mr Rahme had BK perform fellatio on him. Mr Rahme entered a plea of guilty to this charge.

The judge took into account three further offences of sexual intercourse with a minor. In the hotel room on 23 July 2000 Mr Rahme told BK that if she performed fellatio he would not want sex with her. She then sucked his penis (count 1, Form 1). On 25 July 2000 in Room 315 Mr Rahme had BK perform fellatio on him (count 2, Form 1). On 27 July 2000 (and possibly early on 28 July 2000) and shortly after the incident the subject of count 3 of the indictment of 23 May 2003, and while still lying beside him on a bed, Mr Rahme pushed BK's head towards his penis and had her perform fellatio on him (count 3, Form 1)

(d) Influence Witness – J.C Rahme – 4 May 2002

About 4.05pm KB was walking along Victoria Street Potts Point when she noticed Mr Rahme standing in her path about five metres away. He was next to a small white car. She saw 5 males in the car. As she passed Mr Rahme she commenced to run. He yelled out, "K, we just want to talk to you about the Court case. We won't do anything". KB continued to run away and telephoned her brother to come and help her. The white car followed her and pulled up beside her. Mr Rahme, who was now sitting in the passenger seat yelled to her, "we just want to talk to you about court. Just talk to me. Talk to us." KB yelled back, "get away from me. If you don't go, I'm going to call the cops". As the car drove off Mr Rahme yelled, "You'd better not go to court". As the car drove off her brother arrived. Together they reported the matter to Kings Cross Police Station. At the time Mr Rahme was awaiting trial on a number of offences. KB was one of the victims.

In argument Senior Counsel for Mr Rahme treated the incident as a minor instance of doing an act to influence a witness. Admittedly, there are far worse examples of this offence but I regard the offence committed as serious.

29. I summarise the facts of the offences committed by Nakhle El-Hayek and dealt with by Solomon DCJ.

(a) Armed Robbery – 28July 2000 – North Sydney TAFE College Canteen

I have earlier set out the facts relating to the very serious offence in which Mr El-Hayek played such a significant part.

(b) Sexual Intercourse with a Minor -

On 22 July 2000 Mr El-Hayek was lying naked on a bed in the hotel room. When BK returned to the room he had her perform fellatio on him (count 2 of indictment)

The judge took into account a prior offence that day when Mr El-Hayek had KB perform fellatio on him and a further offence on 27 July 2000 of common assault of BK. This involved, apparently, the pointing and waving of a gun.

30. On 28 July 2000 KB called a friend whilst the three offenders were out. That friend telephoned the police who came to the hotel and rescued the girls.

31. Before Solomon DCJ it was agreed by the legal representatives of all parties that insufficient credit had previously been given to the offenders for time spent in custody and adjustments were made, namely, 167 days for Mr Rahme and 75 days for Mr El-Hayek

32. Solomon DCJ expressly applied the sentencing principles set out in Pearce v The Queen (1998) 194 CLR 610. He also stated: "In arriving at the sentence for each offender, I have considered the totality of each offender's respective criminality." In the light of the Form 1 matters he increased the sentences he would otherwise have imposed on Messrs Rahme and El-Hayek in respect of the sexual offences. He noted the victim impact statements and the suffering KB and BK had endured.

33. Prior to 22 July 2000 Mr Rahme was a man of good character. Solomon DCJ took into account his plea of guilty to one offence of sexual intercourse with a minor, one offence of possess a firearm without a licence and one offence of influence a witness and discounted the sentences in respect of the utilitarian value of the pleas and the contrition which they evidenced. KB and BK were not required to give evidence in respect of those matters at a trial. The judge also took into account that on the day prior to sentence Mr Rahme had admitted that he participated in the armed robbery at North Sydney TAFE College canteen, regarding this as a positive step towards his rehabilitation.

34. Solomon DCJ said that he also took into consideration:

(a) Mr Rahme's difficult childhood. The judge was referring to the death of his father and the difficulties caused by an uncle who was an over strict disciplinarian.

(b) Mr Rahme was undertaking positive steps in prison to rehabilitate himself, including courses to improve his vocational and living skills

(c) Mr Rahme has a loving family to return to on his release from prison and that his rehabilitation will benefit due to his family support.

(d) The offences were committed whilst he was under the influence of drugs and that Mr Rahme acted out of character. (This did not excuse the offences).

35. In relation to the sentence for the armed robbery at North Sydney TAFE, for the sexual offences and the influence witness offence, Solomon DCJ found in each instance that there were special circumstances, namely:

(i) the sentence imposed is an accumulated sentence, and
(ii) the need for the offender to undertake ongoing rehabilitation in the community.

36. As appears from the earlier summary of the sentences, Solomon DCJ adjusted each of the sentences just mentioned accordingly.

37. Mr Rahme contended that the sentences imposed by Stewart ADCJ on 8 November 2002 were unduly harsh and severe and that they did not adequately reflect his prior good character which was of long duration. He was 35 years of age at the time of the offences. He had never offended previously and this was his first time in custody.

38. The armed robbery involved not less than four young people, three of whom were girls aged 15. The young male, MA, aged 16 was treated harshly by the three offenders with a shot being fired in close proximity to him. Having regard to the circumstances of the offence, and notwithstanding Mr Rahme's strong subjective features, a head sentence of 6 years with a non-parole period of 4.5 years was the most lenient sentence which could be imposed. That head sentence amply reflected Mr Rahme's favourable subjective features. The sentence for the serious offence of demand money with menaces was made wholly concurrent.

39. The sentence of 2.5 years with a non-parole period of 1.5 years for the offence of sexual intercourse with a girl over 10 but under 16, namely 15, was moderate. Nor could objection be taken to the concurrent sentence of 3.5 years with a non-parole period of 1.5 years for the offence of supplying methylamphetamine. In the present case the supply was to a 15 year old girl.

40. The total result arrived at by Stewart ADCJ for the total criminality was correct. Lesser sentences were not warranted at law.

41. Mr Rahme contended that Stewart ADCJ had made further errors and taken into account certain matters as matters of aggravation. These and my comments are:

(a) he made specific adverse reference to the absence of any apology, the conduct of the trial and its effect on the victims.

The reference to the conduct of the trial was in the context of the judge's consideration of whether Mr Rahme had displayed contrition or remorse. The judge accepted that Mr Rahme was entitled to have his defence conducted as it was.

(b) The three girls were, in effect being kept as prisoners.

The judge made it clear that there having been no charge of detention for advantage, Mr Rahme was not being punished for it.

(c) the 16 year old male (MA) who was robbed and threatened was "vulnerable" in the same way as shopkeepers and taxi drivers are.

A 16 year old boy is vulnerable when dealing at night with a mature adult armed with a gun. That is obvious and does not involve putting a person aged 16 in a special category.

Mr Rahme contended that as he recognised his guilt from the dock as he was being sentenced, the judge should not have made a positive finding that there was no remorse. The judge did regard that recognition as a positive step. He was entitled to find that there had been no remorse. A last minute acknowledgment of guilt, while highly desirable, does not amount to remorse.

42. Stewart ADCJ, because of faulty information supplied to him by the legal representatives of the parties, did not sufficiently backdate the sentences. Mr Rahme should have been given a further credit for 167 days in custody. As I understand the remarks of Solomon DCJ, this credit was given by him on sentencing Mr Rahme.

43. Despite the many complaints I adhere to the view that Mr Rahme's criminality was such that lesser sentences were not warranted and that the actual sentences imposed by Stewart ADCJ were correct.

44. Mr Rahme contended that the sentence for the armed robbery offence at North Sydney TAFE of 7 years with a non-parole period of 4 years was excessive especially when regard was had to his prior good character.

45. This offence involved Mr Rahme attending with two other men and three women being forced at gunpoint into the cool room and the manageress being taken at gunpoint to unlock the safe and then being returned to the cool room. About $25,000 was taken, along with the handbags of the three women and other items. This was the second armed robbery in which he had participated in six days. Mr Rahme did not have the benefit of a plea of guilty.

46. This was also a serious offence which must have had a terrifying effect on the women involved. Neither the sentence nor the non-parole period was excessive for the criminality involved, even taking into account Mr Rahme's prior good character and all his favourable subjective features.

47. Mr Rahme submitted that the sentence of 2 years for doing an act with the intention of influencing a witness was unduly harsh and severe. It was contended that the offence was of the most minor nature, committed on the spur of the moment after a random meeting.

48. I do not accept that the offence was of the most minor nature, but I do accept that there have been many worse instances. As KB sought to move away from Mr Rahme and the five men in the car he yelled, "we just want to talk to you about the court case. We won't do anything." She was followed by the car with Rahme and the men. Mr Rahme yelled, "We just want to talk to you about court. Just talk to me, … talk to us." She declined, threatening to call the police. As the car drove off Mr Rahme yelled, "you'd better not go to court". Even if the meeting was a random one, so far as Mr Rahme was concerned, it was reasonably clear that he wanted to persuade her not to give adverse evidence against him.

49. A sentence of 2 years was not excessive for this offence, even allowing for the plea of guilty and Mr Rahme's prior good character and all his favourable subjective features.

50. Mr Rahme contended that the judge erred in:

(a) failing to make sufficient allowance for special circumstances in the overall sentence. Mr Rahme submitted that while the judge's findings of special circumstances based on the cumulation of the sentences and the need for the offender to undertake ongoing rehabilitation were correct they should have resulted in a lesser sentence and, at the least, in a non-parole period of less than 75 per cent of the head sentence.

I will deal with the non-parole period later.

(b) failing to make sufficient allowance for Mr Rahme's pleas of guilty to the sexual offences, possess firearm and influence a witness and prior good character. The sentencing juge made reference to the pleas of guilty and the beneficial aspects of them but it was submitted that the sentences imposed did not reflect the discount to which Mr Rahme was entitled.

I disagree. The sentences would have been higher if that discount had not been given. Similarly, if the judge had not taken into account Mr Rahme's prior good character, all the sentences imposed by Solomon DCJ would have been higher. This is so even though the good character of Mr Rahme went beyond his simply reaching the age of 35 years without having a criminal conviction. It was pointed out that there was evidence that over most of his life Mr Rahme had been very hard working and supportive of his family. Further, the offences and a period of drug taking leading up to and forming part of the offences were totally out of character and that there had been rehabilitation while he was in gaol.

The gravity of the offences has to be kept in mind.

(c) Failing to take into account the offender's remorse. Mr Rahme relied on the evidence of his ex wife, his sister, his nephew and Josephine Melan of his remorse not being challenged. The sentencing judge made reference to Mr Rahme's contrition. Mr Rahme complained that the judge made no allowance for his expressed contrition and remorse outside his pleas and admission.

Expressions of remorse have to be approached with a degree of reserve, especially when, for a considerable time, the offender has insisted that he is not guilty of the offence charged. It has not been established that the judge gave insufficient weight to the limited value of expressions of remorse to family members and others close to him.

51. Mr Rahme submitted that the sentences imposed by Solomon DCJ when considered as a totality with the sentences already imposed on him by Stewart ADCJ resulted in sentences which in total were unduly severe both in terms of the head sentence and a disproportionately long non-parole period.

52. Mr Rahme complained that the sentences were excessive particularly in the light of the adjustment by Solomon DCJ to correct the allowance for pre-sentence custody. The method of adjustment meant, it was submitted, that the sentence that Mr Rahme was serving was one of 11 years 5.5 months with a non-parole period of 10 years 5.5 months. The judge would normally have used the date of 9 November 2007 as his touchstone being the date on which the applicant became eligible for release on parole and structured his sentences with that date in mind both when determining the extent of concurrency and cumulation. To allow for the 167 days spent in pre-sentence custody the judge notionally treated 27 May 2007 as his touchstone being the notional date on which the applicant became eligible for release on parole and structured his sentences with that date in mind both when determining the extent of concurrency and cumulation.

53. I do not regard sentences totalling 11 years 5.5 months as excessive having regard to the total criminality involved and Mr Rahme's favourable subjective features. The offences embraced within that totality include two grave armed robberies, sexual offences involving 15 year old girls, supplying methylamphetamine and doing an act with intent to influence a witness.

54. However, an effective non-parole period of 10 years 5.5 months is excessive and bespeaks error. Solomon DCJ has only allowed a period on parole of 1 year altogether. Stewart ADCJ had allowed 2 years on parole in respect of a shorter period of imprisonment (8 years). The principle of totality has been incorrectly applied as to the non-parole periods. Mr Rahme's period of serious crime extended over a six day period which is a relatively short period.

55. Even allowing for the serious crimes in that short period, a period of 1 year on parole after 10 years 5.5 months in gaol is demonstrably too short for a man who for 35 years had no prior convictions, was well regarded and was a hard worker. Further, he has the support of a close family and there are good prospects of rehabilitation. The correct non-parole period in total is one of 8 years 6 months on head sentences totalling 11 years. I have not overlooked the effective total head sentences.

56. In order to achieve the correct result it will be necessary to alter the structure of the sentences. With such long sentences it is undesirable to deal in days and it is better to round off all sentences and deal in months and avoid "finicky" calculations. Accordingly, bearing in mind that the sentences imposed by Stewart ADCJ started on 10 November 2001 and allowing for pre-sentence custody, I propose to commence the sentences imposed for the offences dealt with by Solomon DCJ from 10 May 2005. The head sentences for the offences dealt with by Stewart ADCJ and Solomon DCJ will total 11 years, that is, they will stretch in total from 10 November 2001 to 9 November 2012. The non-parole periods will stretch in total from 10 November 2001 to 9 May 2010. The question of special circumstances has been considered as to each offence and totally. I do not disagree with the findings of Solomon DCJ of special circumstances as to the individual offences.

57. I propose the following orders:

(a) Leave to Mr Rahme to appeal against sentences imposed upon him granted.

(b) Dismiss the appeals against the sentences imposed by Stewart ADCJ on 8 November 2002 on Mr Rahme and set out at the start of these reasons.

(c) Allow the appeals against the sentences on Mr Rahme imposed by Solomon DCJ and quash those sentences. In lieu thereof John Claude Rahme is sentenced as follows:


(i) Influence witness – 2 years imprisonment from 10 May 2005 to 9 May 2007 with a non-parole period of 1 year ending 9 May 2006.

(ii) Armed robbery with a dangerous weapon – 7 years imprisonment from 10 November 2005 to 9 November 2012 with a non-parole period of 4 years expiring on 9 November 2009.

(iii) Possess firearm – 2 years imprisonment fixed term from 10 November 2005 to 9 November 2007.

(iv) Sexual intercourse with a person under 16 and over 10, namely 15 (taking into account the offences on the Form 1) – 2 years 6 months imprisonment from 10 November 2008 to 9 May 2011 with a non-parole period of 18 months expiring on 9 May 2010.

Nakhle El-Hayek

58. He was born on 1 December 1979 and was thus aged 20 at the time of the offences. Prior to 22 July 2000 he was a man of good character.

59. The Probation and Parole Officer in her pre-sentence report states that the applicant was one of four children. It was a close family. He left school halfway through Year 12 to work with his brother in his computer networking business and continued in that business during the period 1997 to 2000. He worked as an assistant store manager for a tile market from May 2001 until remanded in custody. The director of the tile market spoke highly of Mr El-Hayek and valued him highly for honest, trustworthy and reliable work performance Mr El-Hayek has employment available to him on release. The officer concluded:

"Those who have known the offender in the community describe someone who is kind, loving and helpful. This description is in stark contrast to a violent offence of this nature. Mr El-Hayek was not forthcoming with an explanation for his dichotomy other than to acknowledge that he has serious problems with former associates. He is adamant that he wants to rebuild a law abiding lifestyle once he is released from jail and will make the necessary changes, including avoiding associates, to do so. He will have the wholehearted support of his family in this regard."

60. Two Catholic Chaplains have provided references which are supportive of Mr El-Hayek. Mr W J Taylor, Clinical Forensic Psychologist, took an extensive history and administered a series of psychological tests. Mr Taylor expressed the view that Mr El-Hayek appeared to be a person of at least average intellectual ability. He told Mr Taylor that for three months prior to his arrest he was using amphetamines everyday. Mr Taylor thought that Mr El-Hayek had a good deal of immaturity in his functioning and a rather histrionic and compulsive personality adjustment. There was no indication of any personality or emotional disorder or significant anti-social characteristics. Mr El-Hayek attributed his involvement in the offences to being easily led while under the influence of amphetamines.

61. In his report of 30 June 2003 Mr Taylor wrote that Mr El-Hayek accepted responsibility for his actions and did not attempt to condone them. Mr Taylor thought that Mr El-Hayek could benefit from further counselling to assist him to remain free from alcohol and drug abuse.

62. Solomon DCJ stated that Mr El-Hayek was entitled to a discount for the utilitarian value of his plea of guilty to one offence of sexual intercourse with a minor and for the contrition implicit in the guilty plea. Thus BK did not have to give evidence at another trial. Solomon DCJ took into account

(a) the psychological assessment of Mr El-Hayek by Mr W J Taylor

(b) Mr El-Hayek was taking positive steps in prison to rehabilitate himself and undertaking courses to improve his vocational and living skills

(c) On release from prison Mr El-Hayek will be assisted in his rehabilitation by his family

(d) The offences were committed while Mr El-Hayek was under the influence of drugs and that he acted out of character. (This did not excuse the offences).

63. As to the sentence for armed robbery at North Sydney TAFE and that for sexually assaulting a minor, Solomon DCJ found in each instance that there were special circumstances, namely:

(i) the sentence imposed was an accumulated sentence, and
(ii) the need for the offender to undertake ongoing rehabilitation in the community.

64. As appears from the earlier summary of the sentences, Solomon DCJ adjusted each of the sentences just mentioned accordingly.

65. Counsel for Mr El-Hayek reserved his right to challenge the sentences imposed upon him on parity grounds in the event of this Court reducing the head sentences imposed upon Mr Rahme, including the aggregate of such sentences, as distinct from adjusting the total non-parole period. That does not arise. The principal complaint of Mr El-Hayek was that in accumulating the sentences (and the non-parole periods) a total non-parole period of 7 years 3 months 16 days was erroneously high and excessive when the sentences in aggregate totalled 8 years 9 months 16 days. The error identified was an incorrect application of the totality principle.

66. It was pointed out that 7 years 3 months 16 days represented 83 per cent of 8 years 9 months 16 days and that the usual ratio of the non-parole period to the total sentence is 75 per cent. Because of the way in which credit was given for the 75 days in pre-sentence custody the effective sentence is 9 years and the effective non-parole period totals 7 years 6 months.

67. There is nothing to prevent a judge from arriving at an overall result where the non-parole period is more than 75 per cent of the aggregate sentence. A judge only has to comment by identifying special circumstances where a non-parole period of less than 75 per cent of the aggregate sentence is fixed.

68. It is unusual for a Court to exceed the usual ratio of 75 per cent where the offender is a young man of prior good character, this is the offender's first experience of fulltime custody and there are good prospects of rehabilitation. While Mr El-Hayek's criminality was serious and substantial, it was limited to six days. It was not spread over many months. This makes it correct to say, as Solomon DCJ did, that it was out of character.

69. After a long period in gaol (over 6 years) a person with the characteristics of Mr El-Hayek will need an extended period of supervision to cement his rehabilitation and ensure that he does not return to drug and alcohol abuse and is not inveigled into mixing with old or undesirable associates.

70. For the reasons given in the last two paragraphs there are cogent special circumstances and the period on parole is too short.. It is undesirable with long sentences to deal in days and I would round off the new non-parole period in months. While I would not disturb the head sentences or their accumulation the non-parole period should be reduced to 6 years 6 months, that is about 74 per cent of the aggregate sentence. To achieve this result will require some variation in the structure of the sentences. I have not overlooked the effective head sentences when the pre-sentence custody is taken into account.

71. I propose the following orders:

(a) Leave to appeal against the sentences imposed on Mr El-Hayek by Solomon DCJ is granted.

(b) Appeal against sentences imposed by Solomon DCJ on Nakhle El-Hayek allowed; sentences quashed

(c) In lieu of the sentences imposed Nakhle El-Hayek is sentenced to the following terms of imprisonment.


(i) armed robbery with a dangerous weapon – 7 years imprisonment from 28 October 2003 to 27 October 2010 with a non-parole period of 4 years ending 27 October 2007.

(ii) sexual intercourse with a person over 10 and under 16 years (taking into account offences on Form 1) – imprisonment for 2 years 6 months from 11 January 2007 to 10 July 2009 with a non-parole period of 18 months ending 10 July 2008.

72. The effect of these sentences when added to those imposed by Stewart ADCJ is an aggregate period of imprisonment of 8 years 9 months 16 days with an aggregate non-parole period of 6 years 6 months. Lesser sentences of imprisonment are not warranted.

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Last Modified: 07/08/2004