Saed Al-Marzouq v R
[2013] NSWCCA 112
•20 May 2013
Court of Criminal Appeal
New South Wales
Case Title: Saed Al-Marzouq v R Medium Neutral Citation: [2013] NSWCCA 112 Hearing Date(s): 12 April 2013 Decision Date: 20 May 2013 Before: Simpson J at [1]; Harrison J at [2]; Button J at [32] Decision: 1. Grant leave to appeal.
2. Set aside the sentences imposed by Freeman DCJ on 10 June 2011.
3. In lieu of those sentences, the applicant is sentenced as follows:
(a) On the count of receiving on 4 August 2010, and taking into account the items on the Form 1, sentenced to a non-parole period of 12 months commencing on 10 February 2011 expiring on 9 February 2012 with a balance of term of 6 months commencing on 10 February 2012 expiring on 9 August 2012.
(b) On the first count of dishonestly obtain financial advantage by deception on 4 August 2010, sentenced to a non-parole period of 6 months commencing on 10 April 2011 expiring on 9 October 2011 with a balance of term of 3 months commencing on 10 October 2011 expiring on 9 January 2012.
(c) On the second count of dishonestly obtain financial advantage by deception on 4 August 2010, sentenced to a non-parole period of 6 months commencing on 10 April 2011 expiring on 9 October 2011 with a balance of term of 3 months commencing on 10 October 2011 expiring on 9 January 2012.
(d) On the count of aggravated break and enter with intent to commit a serious indictable offence on 10 August 2010, and taking into account the items on the Form 1, sentenced to a non-parole period of 12 months commencing on 10 June 2011 expiring on 9 June 2012 with a balance of term of 6 months commencing on 10 June 2012 expiring on 9 December 2012.
(e) On the count of aggravated break, enter and steal in company on 20 August 2010, sentenced to a non-parole period of 12 months commencing on 10 September 2011 expiring on 9 September 2012 with a balance of term of 6 months commencing on 10 September 2012 expiring on 9 March 2013.
(f) On the count of aggravated break, enter and steal on 5 September 2010, sentenced to a non-parole period of 12 months commencing on 10 December 2011 expiring on 9 December 2012 with a balance of term of 6 months commencing on 10 December 2012 expiring on 9 June 2013.
(g) On the count of aggravated break, enter and steal on 6 September 2010, sentenced to a non-parole period of 12 months commencing on 10 March 2012 expiring on 9 March 2013 with a balance of term of 6 months commencing on 10 March 2013 expiring on 9 September 2013.
(h) On the count of aggravated steal in dwelling house and break out on 14 September 2010, sentenced to a non-parole period of 12 months commencing on 10 June 2012 expiring on 9 June 2013 with a balance of term of 12 months commencing on 10 June 2013 expiring on 9 June 2014.Catchwords: CRIMINAL LAW - appeal - appeal against sentence - whether sentence manifestly excessive Category: Principal judgment Parties: Saed Al-Marzouq (Applicant)
The Crown (Respondent)Representation - Counsel: Counsel:
B J Rigg (Applicant)
T Smith (Crown)- Solicitors: Solicitors:
Legal Aid NSW (Applicant)
Solicitors for Public Prosecutions (Crown)File Number(s): 2010/428067 Decision Under Appeal - Court / Tribunal: District Court - Before: Freeman DCJ - Date of Decision: 10 June 2011 - Court File Number(s): 2010/428067 Publication Restriction: Nil
Judgment
SIMPSON J: I agree with Harrison J.
HARRISON J: The applicant seeks leave to appeal against the sentences imposed by Freeman DCJ on 10 June 2011 at Sydney. The applicant came before his Honour for sentence in relation to a total of eighteen dishonesty and break and enter offences committed over a period of approximately six weeks and while the applicant was on parole. He had earlier pleaded guilty to all matters in the Local Court on 4 April 2011. Eight of the offences were on court attendance notices and the remainder were listed on two Forms 1.
The applicant was sentenced to an effective non-parole period of 3 years and 3 months and an overall effective head sentence of 6 years. The ratio of the non-parole period to the head sentence was 54.2 percent. His Honour gave the applicant a combined discount of 50 percent for his early plea and for assistance, so that the overall starting point for the sentence was 12 years. Although the applicant originally sought leave to appeal on two grounds, that was restricted at the hearing in this Court to the single ground, namely, that the sentences both individually and in combination were manifestly excessive.
The applicant was sentenced upon the basis of the following facts.
At about 7.45pm on 4 August 2010, two unknown males robbed a man, stealing his wallet. Approximately one hour later, the applicant possessed two credit cards from the wallet. That formed the basis for the charge of receiving stolen property. The applicant was sentenced for this offence to a term of 2 years with a non-parole period of 18 months.
At 8.50pm on the same day, the applicant and a young person attempted to use one of the credit cards at a petrol station to purchase a packet of cigarettes and a $30 Vodafone recharge. They were questioned by the service station attendant who took the card. They later left without the items but the transaction, valued at $47.45, was approved by EFTPOS. That formed the basis for the offence of attempt to dishonestly obtain financial advantage by deception listed on a Form 1. Later, at about 9.17pm, the applicant and the young person went to a convenience store and used the other credit card on two transactions of $24.20 and $30. They formed the basis for two offences of dishonestly obtain financial advantage by deception listed on a Form 1.
Then at about 9.35pm the applicant and the young person used the credit card at a service station to purchase items totalling $54.38. That formed the basis of the charge of dishonestly obtaining financial advantage by deception. The applicant was sentenced for this offence to a term of 16 months with a non-parole period of 12 months. Shortly thereafter the applicant used the credit card to pay a taxi fare of $13.94. That formed the basis of a further charge of dishonestly obtaining financial advantage by deception. The applicant was sentenced for this offence to a term of 16 months with a non-parole period of 12 months.
On 10 August 2010 the applicant and another young person went to premises in Rodd Street, Birrong. They there forced open a window and entered the premises. The alarm was activated and they left. No property was taken. The applicant's fingerprints were found at the premises. That formed the basis of the offence of aggravated break and enter with intent to steal in company. The applicant was sentenced for this offence to a term of 3 years with a non-parole period of 18 months.
On 5 August 2010 the applicant entered the rear yard of unit premises in Renown Avenue, Wiley Park by forcing a side gate while in company with two juveniles. They then used tools found at the premises to smash a hole in the rear door and gain access. They entered several rooms of the unit and ransacked it, leaving items scattered on the floor. No property was stolen. Fingerprints found matched those of the applicant. These facts formed the basis of an offence of aggravated break and enter a dwelling house with intent to steal listed on a Form 1.
On 9 August 2010 the applicant entered a house in Rose Street, Sefton by forcing open a window. He entered several rooms and ransacked the premises leaving items scattered on the floor. A bottle of soft drink and biscuits were consumed by the applicant whilst there. Numerous items to the value of $2,750 were stolen. The applicant's palm print was found at the scene. These facts formed the basis of an offence of break, enter and steal listed on a Form 1.
On the following day the applicant removed a flyscreen from a window attempting to gain access to premises by forcing a lock. He also smashed a window in his attempt and reached through the opening. No property was stolen. The applicant's fingerprints were found at the scene. These facts formed the basis of an offence of break and enter a dwelling house with intent to steal listed on a Form 1.
Between 10 and 11 August 2010 the applicant entered the rear yard and attempted to gain entry to premises in Allum Street, Bankstown by removing a lock on the door and attempting to force it open. No property was taken. The door, the doorframe and the lock were damaged. Fingerprints matching those of the applicant were found at the scene. These facts formed the basis of an offence of attempted break and enter a dwelling house with intent to steal listed on a Form 1.
On 24 August 2010 the applicant was found in possession of 1.7g of marijuana, a pair of scissors and a bong. He provided a false name to the police. These facts formed the basis of an offence of possess prohibited drug and state false name to police listed on a Form 1.
On 15 September 2010 the applicant entered premises in Fairview Avenue, Roselands. He switched off the power, jumped a gate into the backyard and smashed a window using a brick. Upon entering the premises the alarm was activated and he left. No property was stolen. Fingerprints found at the scene matched those of the applicant. These facts formed the basis of an offence of break and enter a dwelling house with intent to steal listed on a Form 1.
On 20 August 2010 the applicant entered premises in Ewen Street, Roselands in company by forcing open a side gate. The offenders entered removed and smashed a perspex and glass louvre on a window through which they gained access to several rooms. They ransacked the premises stealing numerous items to the value of $6,760. The applicant's fingerprints were once again found at the scene. That formed the basis of the offence of aggravated break, enter and steal in company. The applicant was sentenced for this offence to a term of 3 years with a non-parole period of 18 months.
At about 8.00pm on 5 September 2010 the applicant, in company with the same offenders and one other, entered premises in Clio Street, Wiley Park. They initially knocked on the door but when there was no response, the applicant removed some fence palings to get into the backyard. He then removed the flyscreen and smashed part of the bathroom window. The applicant and the others all entered through the window and ransacked the house stealing numerous items including national service medals and World War II badges to the value of $400. The applicant's fingerprints were once again located at the scene. That formed the basis of the offence of aggravated break, enter and steal. The applicant was sentenced for this offence to a term of 3 years with a non-parole period of 18 months.
On the following day the applicant smashed a window of a unit in Ferguson Avenue, Wiley Park while in company. He and his accomplice climbed in and entered several rooms. They ransacked the premises, stealing numerous items to the value of $4,869. The applicant's fingerprints were found at the scene. That formed the basis of the offence of aggravated break, enter and steal. The applicant was sentenced for this offence to a term of 3 years with a non-parole period of 3 months.
Finally, on 14 September 2010 the applicant in company with others unknown entered a unit in Leylands Parade, Belmore. One person initially obtained entry through a partially opened window. That person then left the unit and opened the front security door to give access to the others. They entered several rooms and ransacked the premises stealing numerous items to the value of $15,700. Fingerprints matching those of the applicant were found. That formed the basis of the offence of aggravated steal in dwelling house and break out. The applicant was sentenced for this offence to a term of 3 years with a non-parole period of 18 months.
Subjective circumstances
The applicant was born in August 1990 and so was aged between 19 and 20 years of age at the time of the commission of the offences. He is the youngest of seven children. His father died when he was 2 years old and his mother died when he was 12 years old. He described the death of his mother as a turning point in his life towards misconduct.
The learned sentencing judge described, and accepted, the reason for the applicant's offending to be his concern to pay a debt of $8,000 to people who he said had captured him and threatened violence to him and his family. His Honour described this situation as follows:
"He says at the stage of which he began this series of criminal offences, he owed some $8,000 to his associates; that he had been captured by them and threatened with a bat to his head with the promise of further violence to himself and, worryingly, to his family, including his five year old nephew, so that he felt himself driven to attempt to pay this outstanding sum by the deadline set by his tormentors and that he saw as the only opportunity of doing this, the commission of various offences such as I have described."
His Honour then proceeded to evaluate this predicament in the context of the applicant's relevant personal circumstances:
"This does not amount, of course, to a defence of duress, but it does give some indication of the motivation of this young man who because of his youth, because of the difficult and dysfunctional upbringing, because of his drug addled approach, seems to me to be worthy of some understanding, although his use of drugs does not by itself excuse his offending. Nonetheless, he is a very troubled young man who appears, I must say, to now have begun to appreciate the seriousness of his criminal conduct, to understand its impact upon his victims and to have set his face firmly in favour of rehabilitating himself. He has now not been using drugs whilst in custody. I note that he is, because of his history of escaping, kept in maximum security so that too is a factor to be borne in mind in setting the term of his imprisonment."
It is clear that his Honour accepted that the applicant had quite good prospects of rehabilitation because of his youth and his developing insight. He was found to be empathetic with his victims and to be taking steps to enrol in self-improvement programmes within the prison system.
It was contended for the applicant in this Court that his Honour had erred in choosing a notional starting point for each individual sentence that was too high and which resulted in sentences that were manifestly excessive. The same criticism correspondingly applied to the total effective sentence of 12 years.
Counsel for the applicant submitted that his Honour made no attempt to assess the criminality of any of the offences apart from the two offences of dishonestly obtaining a financial advantage, which his Honour characterised as falling at "the lower end of seriousness". His Honour allegedly made no attempt to determine whether any individual offence was more or less serious than any other or others. All aggravated break and enter offences received the same sentence. Two counts of dishonestly obtaining a financial advantage, involving in all a total of less than $70, nevertheless attracted sentences of 16 months.
The ultimate burden of the applicant's submissions in this Court was that the total effective sentence was unreasonable or plainly unjust. Particularly was that said to be so when regard is had to the objective seriousness of each individual offence in the context of the favourable subjective factors to which his Honour referred.
Consideration
The applicant's criminal behaviour relevantly spanned a period of just six weeks. The monetary value of his crimes was small, although the impact upon his victims, particularly those whose homes were entered and ransacked, could not be similarly described. Even so, the level of offending involved in this short-lived spree of criminal behaviour was at the lower end of the scale. His Honour said as much with respect to some of the offences. His Honour offered no detailed assessment of the balance.
There seems in my opinion to be a degree of tension between the very favourable, and on one view generous, assessment by his Honour of the applicant's subjective circumstances, including those concerned with his motivation for offending and his prospects of rehabilitation on the one hand, and the length of the sentences actually imposed by his Honour on the other hand. The starting point of 12 years for this combination of offences seems to me to be entirely, or at least significantly, at odds with that assessment, and with a reasonable view of the seriousness of the applicant's total offending. But for the combined discount of 50 percent for his plea and his offer to provide assistance, the applicant's effective non-parole period would have been substantially longer than the 3 years and 3 months ultimately imposed upon him. I find such a sentence to be difficult to reconcile with a generally low level of criminal activity committed over a short period of time by a young offender with the applicant's favourable subjective features and prospects of rehabilitation.
The applicant has a history of difficulties with anger management. The psychiatric evidence from Dr Furst tendered on his behalf at the sentencing proceedings recommended that the applicant be placed under the care of a psychiatrist working for Justice Health to monitor his mental state and treatment needs. Dr Furst also recommended that the applicant should be referred to a clinical psychologist working within the Department of Corrective Services to deal with his previous childhood maladjustment and his ability to cope with stress without abusing drugs or resorting to anger. His Honour's imposition of a relatively long parole period would appear clearly and appropriately to have been directed at the need to provide the applicant with similar post-release medical care and supervision. I consider that the applicant should similarly remain subject to an extended period on parole.
I consider that the overall sentence imposed upon the applicant was manifestly excessive. A lesser sentence is warranted. A diagrammatic representation of the sentences I propose is as follows:
[1]
In the circumstances I consider that the following orders should be made:
1. Grant leave to appeal.
2. Set aside the sentences imposed by Freeman DCJ on 10 June 2011.
3. In lieu of those sentences, the applicant is sentenced as follows:
(a) On the count of receiving on 4 August 2010, and taking into account the items on the Form 1, sentenced to a non-parole period of 12 months commencing on 10 February 2011 expiring on 9 February 2012 with a balance of term of 6 months commencing on 10 February 2012 expiring on 9 August 2012.
(b) On the first count of dishonestly obtain financial advantage by deception on 4 August 2010, sentenced to a non-parole period of 6 months commencing on 10 April 2011 expiring on 9 October 2011 with a balance of term of 3 months commencing on 10 October 2011 expiring on 9 January 2012.
(c) On the second count of dishonestly obtain financial advantage by deception on 4 August 2010, sentenced to a non-parole period of 6 months commencing on 10 April 2011 expiring on 9 October 2011 with a balance of term of 3 months commencing on 10 October 2011 expiring on 9 January 2012.
(d) On the count of aggravated break and enter with intent to commit a serious indictable offence on 10 August 2010, and taking into account the items on the Form 1, sentenced to a non-parole period of 12 months commencing on 10 June 2011 expiring on 9 June 2012 with a balance of term of 6 months commencing on 10 June 2012 expiring on 9 December 2012.
(e) On the count of aggravated break, enter and steal in company on 20 August 2010, sentenced to a non-parole period of 12 months commencing on 10 September 2011 expiring on 9 September 2012 with a balance of term of 6 months commencing on 10 September 2012 expiring on 9 March 2013.
(f) On the count of aggravated break, enter and steal on 5 September 2010, sentenced to a non-parole period of 12 months commencing on 10 December 2011 expiring on 9 December 2012 with a balance of term of 6 months commencing on 10 December 2012 expiring on 9 June 2013.
(g) On the count of aggravated break, enter and steal on 6 September 2010, sentenced to a non-parole period of 12 months commencing on 10 March 2012 expiring on 9 March 2013 with a balance of term of 6 months commencing on 10 March 2013 expiring on 9 September 2013.
(h) On the count of aggravated steal in dwelling house and break out on 14 September 2010, sentenced to a non-parole period of 12 months commencing on 10 June 2012 expiring on 9 June 2013 with a balance of term of 12 months commencing on 10 June 2013 expiring on 9 June 2014.
This results in an overall head sentence of 3 years and 4 months and an effective non-parole period of 2 years and 4 months. The earliest day upon which the applicant will become entitled to be released on parole is 10 June 2013.
BUTTON J: I agree with Harrison J.
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[1]diagrammatic representation of sentences proposed
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