New South Wales District Court CITATION: R v Bilal BAKKOUR; R v Nasis JAVELOSA; R v Hussein EL-SKAF; R v Mohamad HELLO [2009] NSWDC 405 JUDGMENT DATE: 20 November 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Mr Bakkour is sentenced to a period of 4 and 1/2 years imprisonment with a non-parole period of 2 and 1/2 years, backdated by 1 month and 24 days. Mr Javelosa is sentenced to a period of imprisonment of 5 and 1/2 years with a non-parole period of of 3 years, backdated by 2 months and 26 days. CATCHWORDS: CRIMINAL LAW - sentence - knowingly facilitate car rebirthing activity - new offence under s 154G(1) Crimes Act 1900 - purpose of legislation - plea of guilty at earliest opportunity - serious nature of offence - predatory behaviour - regular criminal activity - above mid range of objective seriousness - different personal circumstances of offenders - evidence of remorse LEGISLATION CITED: Crimes Act 1900 s 154G(1) Crimes (Sentencing Procedure) Act 1999 s 23 CASES CITED: R v Mason [2007] NSWCCA 32 Regina Bilal El-Cheikh Bakkour Nsair Hosainy AKA Javelosa PARTIES: Hussein El-Skaf Mohamad Abdo Hello This judgment contains the sentences of Mr Bakkour and Mr Javelosa. For the sentences of Mr El-Skaf and Mr Hello see R v Hussein El-Skaf; R v Mohamad Hello [2009] NSWDC 406 FILE NUMBER(S): 2008/16322; 2008/17822; 2008/15722; 2008/16857 COUNSEL: Mr Peluso for Mr Bakkour Mr Brewer for Mr Javelosa SOLICITORS: Mr Vautin (NSW Office of the Director of Public Prosecutions) JUDGMENT 1. Bilal El Cheikh Bakkour and Nasir Javelosa have both pleaded guilty to a crime called knowingly facilitate organised car rebirthing activity. That is a crime in New South Wales under the Crimes Act 1900 s 154G(1). It carries a maximum of fourteen years imprisonment. Parliament regards the crime as so serious that it has also fixed to that crime a standard non-parole period of four years imprisonment. 2. This activity was made into a specific crime in New South Wales as recently as 2006. Before 2006 people who committed the crimes that Mr Bakkour and Mr Javelosa have pleaded guilty to were charged with car stealing or receiving stolen property. At one stage car stealing had a maximum of ten years imprisonment and receiving also had ten years imprisonment. The Parliament increased the penalty for illegally receiving a stolen car to twelve years imprisonment. Now Parliament has described activity known as organised car rebirthing and, as I said at the start, fixed a maximum sentence of fourteen years imprisonment to that crime. 3. When the responsible Minister introduced the law into the Legislative Council in New South Wales he described why Parliament was introducing this new law in 2006. He said the following: " There are many costs of rebirthing to the community. Firstly, rebirthing means that the stolen vehicle will not be recovered, in contrast to 'joy riding'-style car theft, where the vehicle is usually recovered. This results in true owners being deprived of their cars permanently, and higher insurance premiums for us all. In addition, if a rebirthed car that has been onsold is subsequently identified, seized and taken back to its true owner, the honest buyer who paid market price for the car may be left with nothing. Secondly, rebirthing is dangerous. It may involve serious physical alterations to the car, such as grafting the front end of one car to the back end of another. This creates a structural flaw in which an accident could mean that the car disintegrates with its innocent new owners inside. Thirdly, because rebirthing is potentially lucrative, it entices young people into becoming involved with organised criminal gangs. It can corrupt legitimate tradespeople who work with vehicles, because rebirthing gangs actively seek to 'recruit' professionals working in the industries of motor vehicle repair, wrecking, sale and registration. These people can provide the paperwork to give the rebirthers' illegal activities the veneer of legitimacy. " 4. I have quoted from the Minister's speech because it outlines specifically the reasons why Parliament introduced this law and describes the activity which Parliament was seeking to make illegal and why that activity should be made illegal. I should add immediately that there is no suggestion in this case that there were such serious physical alterations to any of the cars that anybody was put in danger. I referred to the speech, as I said, to point out why Parliament had introduced the law. 5. The Court of Criminal Appeal has not yet commented - so far as my or counsel's researches have revealed - about this new law, but under previous laws when the Court was dealing with car rebirthing activities (as under offences for stealing or car theft) the Court made some remarks in a case called R v Mason [2007] NSWCCA 32. The Chief Judge at Common Law said in a judgment about rebirthing: " Regrettably this type of illegal enterprise is not uncommon. It inflicts considerable loss on those members of the community whose vehicles are stolen, as well as inflicting loss on any insurer who may have obligations to provide compensation." The other judges in the court agreed with his Honour. 6. It is important in sentencing anyone that the court begins by a description of the serious nature of the offence which it is sentencing the person for. A court must commence its process by assessing how serious an example of the crime it is sentencing the particular offender for. The kind of activity which Mr Bakkour and Mr Javelosa engaged in is conveniently summarised in exhibit A in Mr Bakkour's case which contained an account of their activity which was prepared by the police and which was agreed to by the offenders. 7. The police came to hear about what these men were doing by listening to their mobile telephone calls. I should add here that Mr Bakkour is charged with committing this crime between 1 March 2007 and 19 July 2007 and Mr Javelosa is charged with committing the crime between the same dates. The police say that as a result of their investigations "significant electronic and physical evidence was gathered on these two men's involvement in the organised and systematic theft of vehicles from the eastern and inner western suburbs of Sydney." 8. Evidence was also gathered in their involvement in the facilitation of organised car rebirthing. The investigations revealed that these men regularly bought damaged cars from auctions throughout Australia and then stole cars of the same make and model to facilitate the rebirth of the damaged car. The repaired cars were then registered and sold. 9. In addition, Mr Bakkour and Mr Javelosa were regularly contacted by other persons who placed orders for specific makes and models of cars they wanted stolen in order to rebirth damaged cars those persons were in possession of. Mr Bakkour and Mr Javelosa charged varying fees for stealing the cars depending upon the level of difficulty. 10. Mr Bakkour was involved in stealing twenty cars and Mr Javelosa was involved in stealing eighteen cars. The police summary of their activity provides an insight into the predatory behaviour of these two men. On one occasion Mr Bakkour discussed on the phone going out to get a green car for his cousin. He had a description and just went to Rose Bay and stole a green car. The men used expressions such as being "out stealing" when they were driving around or out "dancing". 11. Sometimes on the phone the men were heard discussing what orders they had for stealing cars that night. Friends and relatives contacted the men and gave them an idea of the sorts of cars which they wanted to be stolen. Mr Bakkour and Mr Javelosa then toured the inner suburbs of Sydney patiently but with perseverance until they found a car which matched the description of the order which they had for that night. Having broken into the car one of them would then drive it back to an accomplice's place, Mr El-Skaf, where the car would be hidden and later dealt with. I will be sentencing Mr El-Skaf separately for his involvement in this activity. 12. Often the cars which had been stolen and taken to Mr El-Skaf's place were found, as the police described it, clinically stripped of various parts and left in a laneway near Mr El-Skaf's house. The system was that on their way one of the men would phone through to Mr El-Skaf and let him know that they were on the way so that he could open up his garage facility. 13. I need to make an assessment of what the courts call the level of objective seriousness of the crimes which Mr Bakkour and Mr Javelosa committed. That means just how serious an example of this crime is the one which they have committed. 14. As I have said, in Mr Bakkour's case he was involved in stealing up to twenty cars. Mr Javelosa was involved in stealing eighteen cars. The people who were injured by that sort of behaviour include of course the car owners who lost their car and whatever was contained in it, usually for good because it was destroyed in their activity. Insurers had to pay out. The public indirectly suffer because of activity such as this by the increase in premiums, although that cannot be demonstrated as a particular feature of these cases. And of course by the amateur reassembling of cars there must be an element of risk to the public. I do not take that last factor into account as a specifically aggravating feature, but it is obviously one of the factors about this crime which Parliament had in mind in fixing the maximum sentence. 15. Both men participated in this activity with perseverance and regularity over a period of some four months. Mr Bakkour committed the crime because of financial pressure which he was feeling at home. He needed to "survive and provide for his family". Mr Javelosa was driven into this crime because by the stage that he was committing this crime he had a daily cocaine habit which he needed to support. Both men were paid a certain amount of money for each of the cars which they supplied in the process of the rebirthing activity. 16. The behaviour was, as I have already said, in my opinion predatory. These men preyed on innocent members of the community who left their cars at places which they thought were safe only to find them removed the following day and either never found or found completely destroyed. These men undertook this activity as a routine business whereby they generated income for their own personal needs be it either to provide for their family or to provide for their drug habit. 17. Mr Vautin, who appeared for the Director of Public Prosecutions, argued that both crimes committed by these men were at least within the mid range of objective seriousness if not higher. Both Mr Peluso, who appeared for Mr Bakkour, and Mr Brewer, who appeared for Mr Javelosa, acknowledged that their clients' behaviour fell within the middle of the range of objective seriousness, but not above that range. 18. In my opinion because of the number of cars involved and because of the persistent, regular criminal activity of these men over such a long period of time both crimes fall above the mid range of objective seriousness. I also take into account the losses occasioned by eighteen to twenty car owners and probably almost as many insurers of those cars. 19. Mr Bakkour was arrested on 19 July 2007 and bailed on 11 September 2007, a month and twenty-four days later. He undertook daily reporting and was under a curfew. There was a delay in his matter coming to court because of the need to translate the telephone intercept product from Arabic to English. Mr Bakkour pleaded guilty to this crime on 14 October 2008. Mr Vautin agreed that that was the first available opportunity. 20. Mr Javelosa was arrested on the same day and bailed some time later. In all he spent some two months and twenty-six days in custody. He too pleaded guilty. His plea was entered in the Local Court on 6 November 2008 and Mr Vautin agrees that it was at the first available opportunity. 21. It is important that I say something about the personal circumstances of each of these men before I come to assess their sentences. Both Mr Peluso and Mr Brewer called their clients to give evidence. In addition, Mr Peluso called his client's wife and Mr Brewer called his client's girlfriend. In each offender's case there were tendered pre-sentence reports and other material such as psychological reports relevant to the offender and, in Mr Bakkour's case, the offender's wife. In addition, there was tendered in Mr Bakkour's case exhibit E which I will turn to in due course. 22. Mr Bakkour migrated from Lebanon in the late 1990's. He is now twenty-nine. He married in the year 2000 and has a good relationship with his wife. He and his wife have four children all under five years of age. He has his own business as an alarm installer and a person who applies window tinting. In Lebanon he trained as an auto electrician. He was not able to easily obtain employment in Australia and so his wife needed to support him by working in three jobs. He ran up a debt of some $60,000 and he is still in debt to the bank and some individuals. 23. These proceedings and his personal circumstances have caused significant stress on his wife who suffers from psychological stress and weight loss. She has been diagnosed as having a major depressive disorder with severe anxiety and stress. 24. Mr Bakkour has three previous convictions committed between 2000 and 2003 for goods in custody and car theft. He expressed remorse in his evidence. That is also demonstrated by his plea of guilty and he apologised in his evidence. There is a psychological report provided by Mr John Taylor who assessed him as having a low to moderate recidivism risk and good prospects of rehabilitation. He is obviously regarded by employers and assessed by Mr Taylor as being a person who works hard. 25. Mr Javelosa, who is aged twenty-eight, was born in Afghanistan. He had to undergo a very significant adjustment in coming to Australia. He had to escape Afghanistan into Pakistan where he spent some years. He struggled when he came to Australia with English when he was going to school. He developed, because of his traumatic background, particularly his experience in war torn Afghanistan, significant personal problems and that led to a gambling problem and a significant drug habit. As I said, he developed a daily cocaine habit. 26. Exhibit 10 in Mr Javelosa's case is a detailed report from a consultant psychologist, Dr John Jacmon. Dr Jacmon described Mr Javelosa as having post traumatic stress disorder as well as depression, anxiety and substance abuse, specifically cocaine. 27. As Mr Brewer pointed out, he suffered extraordinary trauma in early life and it was not surprising that he had the difficulty which he had adjusting in Australia. That would include the mores of the society which he had migrated to. As Mr Brewer said, some people cope with such trauma and others don't. The drugs which he was taking at the time resulted in what Dr Jacmon described as a highly impaired judgment. He is well regarded and has a good reference from his employer. He now sees a doctor every fortnight and his urinalysis indicates that he is presently drug free. He has a good relationship, although it has been troubled in the past, with Sofia Javelosa, his girlfriend who gave evidence on his behalf. 28. He too demonstrated remorse in his evidence. Dr Jacmon thought that his post traumatic stress disorder and depression were likely to worsen, but that he had made an excellent start to a treatment plan which Dr Jacmon prepared. Mr Javelosa too has prior convictions, more than Mr Bakkour. Between 2000 and 2003 he has been convicted of car theft, larceny and goods in custody as well as possessing implements and entering land illegally. In fact, the number of convictions is not significantly greater than Mr Bakkour's, but there are more convictions. 29. In Mr Javelosa's case he too was regularly reporting whilst he was on bail and was subject to a curfew. The delay in bringing his case to court was brought about by the same need to translate the telephone intercept product from Arabic into English. 30. In Mr Bakkour's case he has asked me to take into account when I am sentencing him some other offences that he has pleaded guilty to and which have been placed on to a document in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999 called a Form 1. One of those offences is conspiracy to obtain money by deception and the other is goods in custody. I will take into account, when sentencing him, those offences and will sign the form accordingly. 31. In Mr Javelosa's case he does not ask me to take into account any additional offences under the Crimes (Sentencing Procedure) Act, but I do note that when he committed the offence he has pleaded guilty to he was at the time at liberty on a Community Service Order which a court had imposed upon him. In other words, the court had released him into the community instead of imposing a more serious penalty on condition that he undertake certain community work and he abused that lenient option which the court offered to him to engage in this very serious crime. Obviously, an important factor to take into account in sentencing for both of these crimes is the deterrence of each of the offender from committing other offences as well as stopping others from committing similar crimes. 32. Because of the seriousness of the crime which each has been charged with and the extent to which this is a very significant example of such a serious crime, in my opinion no other sentence than full time custody is appropriate for both of these offenders. 33. In Mr Bakkour's case given that the finding that his crime was above the mid range of objective seriousness for the reasons that I have given and given that I am taking into account two other crimes on the form, I regard an overall sentence of eight years imprisonment as being an appropriate sentence. However, Mr Bakkour has pleaded guilty and that means that the administration of justice is assisted and made much more expeditious and the courts reward such a plea of guilty by discounting the offence. 34. In addition, in Mr Bakkour's case I have taken into account exhibit E. I place significant weight on the contents of exhibit E and I regard an appropriate combined discount for the plea of guilty and the contents of exhibit E as being just under forty-five per cent. In other words, I am going to discount, that is, reduce the eight years sentence which I would otherwise impose on Mr Bakkour by just under forty-five per cent so that the appropriate sentence for him is reduced to four years and six months. 35. The non-parole period for a sentence of four years and six months would normally be about three years and four months. Normally a non-parole period is about seventy-five per cent of the full sentence. Mr Peluso argues that there are special circumstances which warrant me reducing the non-parole period. He says this will be his client's first time in gaol and there are good prospects of rehabilitation and employment. Those submissions I accept. I propose to fix a non-parole period of two and one half years instead of three years and four months. Shortly I will sentence Mr Bakkour to a total of four and a half years imprisonment with a non-parole period of two and a half years which I will backdate by one month and twenty-four days. 36. In Mr Javelosa's case, taking into account the crime which he has committed which is almost as serious as Mr Bakkour's, in fact it involves only two fewer cars, and taking into account that he committed that crime whilst he was in the community serving a community service order, but also taking into account his own personal circumstances I regard an overall sentence as seven and one half years as an appropriate overall sentence. 37. However, Mr Javelosa also has pleaded guilty at the first opportunity. This makes the administration of justice much more manageable for the authorities. I propose to discount, that is, reduce his sentence by twenty-five per cent because he has pleaded guilty. That reduction would bring the sentence to just over sixty-seven months and I propose to round that down to sixty-six months, that is, five and one half years. 38. The normal non-parole period of seventy-five per cent for such a sentence would be four years and one and a half months, but in this case Mr Brewer also argues that there are special circumstances to adjust the non-parole period. His client will need to undergo drug rehabilitation and continue his adjustment to society when he leaves prison. I propose to reduce his non-parole period from four years and one and a half months down to three years so that shortly I will sentence him to imprisonment for five and one half years with a non-parole period of three years which I will backdate by two months and twenty-six days. 39. Mr Bakkour, if you would stand up please I am going to sentence you now. Bilal El Cheikh Bakkour, I convict you of the offence of knowingly facilitating organised car rebirthing activities and I set a non-parole period of two and one half years which will commence on 25 September 2009 and expire on 24 March 2012. The balance of the term of the sentence will be two years from 25 March 2012 to 24 March 2014. 40. Mr Javelosa, I set a non-parole period for your sentence of three years to commence on 24 August 2009 and to expire on 23 August 2012. The balance of the term will be two and a half years to commence on 24 August 2012 and to expire on 23 February 2015. 41. In each case I have regarded it as appropriate to depart from the standard non-parole period of four years because each man pleaded guilty and, in Mr Bakkour's case, because of s 23 of the Crimes (Sentencing Procedure) Act. Now Ms Duncalf, Mr Peluso, Mr Brewer, any factual errors or mathematical errors or anything that I have omitted or should attend to? DUNCALF: No, your Honour. BREWER: Not on my account, your Honour. PELUSO: No, your Honour. HIS HONOUR: All right. Yes? DUNCALF: Your Honour, there is a matter of a confiscation application in each of those cases. HIS HONOUR: All right, I'll hear you in a moment. I need to explain. 42. Mr Bakkour, your gaol sentence is four and a half years. I have specified that you must serve at least two and a half years in gaol. Your non-parole period is two and a half years. I have backdated it by one month and twenty-four days because of the time that you spent in custody. So I backdated it to commence on 25 September this year. Your non-parole period will expire on 24 March 2012. That is the first date, 24 March 2012, on which it appears you will be eligible to be released on parole back into the community. Whether or not you are released on parole depends upon the Parole Authority, not upon me. The balance of the term of two years will be on parole, provided you are released at the end of your non-parole period. 43. Mr Javelosa, your overall sentence is five and a half years. Your non-parole period is three years. I too have backdated that by two months and twenty-six days. So your sentence started on 24 August 2009 because of the time you spent in custody. Your non-parole period expires on 23 August 2012. 23 August 2012 is the first date upon which it appears that you will be eligible for parole. Whether or not you get parole, as I said to Mr Bakkour, will depend upon the Parole Authority and once you are released you will be on parole. If you are released on that day then you will be on parole for two and a half years. Ms Duncalf? DUNCALF: The Crown is just seeking to stand the confiscation application over in both of those cases. HIS HONOUR: All right. I don't think there is any process filed, is there? DUNCALF: No, not yet, your Honour. I don't know whether the matter needs to stay before your Honour or whether the matter can go back to the Sydney District Court. HIS HONOUR: I don't know the answer to that either, why don't you make some enquiries. I imagine somebody will be here next Tuesday for when I'm sentencing Mr Hello and Mr El-Skaf. Perhaps you can find out in the meantime. I don't mind either way. I'm here next week and then I'm in Broken Hill for three weeks and then I'm not back in crime till March, back out here. So you make some enquiries and perhaps if you or Mr Vautin could let me know on Tuesday morning? DUNCALF: Yes, your Honour. HIS HONOUR: Okay. Now Mr Jankowski and Mr Velcic, do you have an application? JANKOWSKI: Yes, I do your Honour. I'd ask your Honour to continue bail till next Tuesday. HIS HONOUR: Yes, I'm afraid I'm not going to. 44. I have determined that a full time custodial sentence is appropriate and the risk of flight is obviously very significant at this stage. So your client is refused bail. Do you have an application, Mr Velcic? VELCIC: Does that also apply to my client, your Honour? HIS HONOUR: Do you apply for bail? VELCIC: Yes, your Honour. HIS HONOUR: All right. 45. For the same reasons I refuse bail. 46. Mr Hello and Mr El-Skaf, both of your lawyers have applied for bail, but I have refused bail. That means that you are going into custody now because I have determined I can tell you that I will be sentencing you to full time custody and it is not appropriate to release you in my opinion because of the increased risk of flight. You are both bail refused. 47. Both Mr El-Skaf and Mr Hello are remanded in custody until Tuesday 24 November 2009 before me here at Parramatta at 10 o'clock. Again I will direct that an Arabic interpreter be available on that day and my associate will make sure that it happens so far as it is within her power. JANKOWSKI: Your Honour, I'm wondering whether it's appropriate to have two of them, only that your Honour is not sentencing as it were them separately, but referring to both in the one set of remarks? HIS HONOUR: Yes, I see your point, we'll order two, yes, two Arabic interpreters. Anything else? JANKOWSKI: No, your Honour. VELCIC: No, your Honour. HIS HONOUR: All right, I will now adjourn. ADJOURNED PART HEARD TO TUESDAY 24 NOVEMBER 2009 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.