New South Wales District Court CITATION: R v Hussein EL-SKAF; R v Mohamad HELLO [2009] NSWDC 406 JUDGMENT DATE: 24 November 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Mr Hello is sentenced to a term of imprisonment of 4 and 1/2 years with a non-parole period of 2 and 1/2 years. Mr El-Skaf is sentenced to a term of imprisonment of 5 years with a non-parole period of 2 1/2 years. CATCHWORDS: CRIMINAL LAW - sentence - knowingly facilitate car rebirthing activity - new offence under s 154G(1) Crimes Act 1900 - purpose of legislation - plea of guilty not at earliest opportunity - personal circumstances of each offender - middle of the range of objective seriousness LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 32 Crimes Act 1900 s 154G(1) Regina Hussein El-Skaf PARTIES: Mohamed Abdo Hello Co-offenders sentenced in R v Bilal BAKKOUR; R v Nasis JAVELOSA; R v Hussein EL-SKAF; R v Mohamad HELLO [2009] NSWDC 405 FILE NUMBER(S): 2008/15722; 2008/16857 COUNSEL: Mr Jankowski for Mr El-Skaf Mr Velcic for Mr Hello SOLICITORS: Mr Vautin (NSW Office of the Director of Public Prosecutions) REMARKS ON SENTENCE 1. The New South Wales Parliament a few years ago introduced a new law which made car re-birthing a specific crime. The new law was s 154G(1) of the Crimes Act 1900. It was a crime called knowingly facilitating organised car re-birthing activities. Parliament fixed a maximum sentence of fourteen years imprisonment. They regarded it as so series a crime that they also fixed a standard non-parole period of four years to the crime. 2. Each of Mr Mohamad Hello and Mr Hussein El-Skaf I am sentencing today for that crime. 3. When the new law was brought into Parliament the Minister said this about the new law: " There are many costs of re-birthing to the community. Firstly, re-birthing means that the stolen vehicle will not be recovered, in contrast 'joy riding' - style car theft, where the vehicle is usually recovered. This results in the true owners being deprived of their cars permanently, and higher insurance premiums for us all. In addition, if a re-birthed car that has been on-sold 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, re-birthing 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 which in an accident could mean that the car disintegrates with its innocent new owners inside. Thirdly, because car re-birthing is potentially lucrative, it entices young people into becoming involved with organised criminal gangs. It can corrupt legitimate tradespeople who work with vehicles, because re-birthing 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 re-birthers illegal activities the veneer of legitimacy." 4. In a case about case re-birthing in this State's Court of Criminal Appeal - but not under the new law - the Chief Judge at Common Law in R v Mason [2007] NSWCCA 32 said at [19] - " 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." 5. In this case Mr Hello and Mr El-Skaf became part of a car re-birthing enterprise where two co-offenders named Mr Bakkour and Mr Javelosa took orders for cars from friends and relatives and drove around the suburbs of Sydney stealing those cars to meet the orders. The cars were taken back and hidden and taken apart so that their parts could be used to re-birth a car. 6. Mr Hello ordered two specific cars from Mr Bakkour. He ordered one in March 2007 and another in April 2007. The first was worth $7000 and the second $25,000. A fresh car was re-birthed using parts from the cars which Mr Hello had ordered. The first car was resold for $5000 and although he resold the second car for $14,000 he had to return the money because the car did not work properly. 7. Mr Hello has been charged under s 154G(1) with knowingly facilitating organised car re-birthing activities and in addition he has asked me to take into account under a form in accordance with s 32 of Crimes (Sentencing Procedure) Act 1999 an offence of knowingly making a false statement to the Roads and Traffic Authority. I will take that other offence into account because he has pleaded guilty to it and I will sign the certificate. The re-birthing activity which Mr Hello is charged with, he has admitted, occurred between 19 March 2007 and 27 July 2007 when he was arrested. 8. Mr El-Skaf's house was used to hide a number of the cars which had been stolen so that they could be stripped and put on to other cars. Mr El-Skaf has acknowledged in his plea that he was involved in seven cars being dismantled but there is no evidence of him being involved in any re-assembling of the cars. He was arrested on 19 July 2007. He had one night in custody. 9. After Mr Hello was arrested on 27 July 2007 he had two nights in custody. 10. When I sentence each of them I will take those times they have already served in custody into account. 11. Mr Hello was committed for trial. He pleaded guilty on the day of the trial on 13 July 2009. Mr El-Skaf pleaded guilty after some negotiations with the prosecution. After his one night in custody Mr El-Skaf was on bail but reporting to the police up to four times a week and the subject of a curfew. 12. Before considering the personal circumstances of each offender I need to assess how bad these particular crimes were as examples of this offence. As I said, Mr Hello was involved because he ordered two cars, but he was involved in some activities with those two cars doing some repairs and arranging for them to be registered and sold. His involvement was therefore quite significant. Mr El-Skaf, as I said, dismantled seven cars. His motive was because he needed money for his family and he got involved when somebody asked him, "Do you want to make easy money?" In my opinion the crime committed by Mr Hello was in the middle of the range of objective seriousness. It was not as serious a crime as that committed by his co-offenders Mr Bakkour and Mr Javelosa. Mr El-Skaf's involvement in the crime also indicates that his offence was in the middle of the range of objective seriousness in my opinion. In both cases because of the limited number of cars they were involved in their offences were towards the lower end of the middle range. 13. Mr Hello, as I said, pleaded guilty on the day of his trial. Mr Vautin, who appeared for the prosecution, said that it was a late plea entered after negotiations and should attract only ten or fifteen percent discount. Mr Martin, who appeared for Mr Hello, referred to some decisions in the Court of Criminal Appeal and argued that his client had originally been charged with some seven offences when he first cam before the District Court, but it was now reduced to one offence with a Form 1. He argued that in the circumstances he pleaded guilty at the first opportunity which was available to him once the charge had been settled. I propose to accept Mr Martin's submission and in due course for Mr Hello I will discount his sentence by twenty-five percent because he has made the administration of justice easier by pleading guilty to a significant charge. 14. Mr Vautin argued regarding Mr El-Skaf that his plea of guilty was after negotiations and should attract only ten to fifteen percent. Mr Jankowski, who appears for him, argued that it should be above fifteen percent, but acknowledged that it was not a top of the range plea of guilty. I regard an appropriate discount in the circumstances of Mr El-Skaf's case as being fifteen percent for him pleading guilty. And when I sentence him I will discount his sentence by fifteen percent. 15. I turn now to Mr Hello's personal circumstances. He is now aged twenty-seven and came from Lebanon in 2004. He is married with a two year old child who was born at the time that he was committing this crime. That child has some medical problems. The relationship between him and his wife, who was the only witness called, has been troubled in the past but is now more stable. He was employed full-time as tiler and has a good work reference. His wife acknowledge that he has matured a lot recently. 16. He has had a number of traumatic events occur in his life which are referred to, helpfully, in a report by a clinical psychologist Dr Mark Milic dated 24 August 2009 which became exhibit 13. He has witnessed people being shot as well as being involved in a family trauma when his father was imprisoned as a result of an argument with the local police in Lebanon. He has himself (Mr Hello) been involved in a car accident and in 2005 received the news that his brother had been shot. Mr Hello has been diagnosed as having an adjustment disorder and depression. 17. He has one prior conviction for a common assault which was committed in 2002 which is an insignificant record. He has a character reference and although his wife said that he would not re-offend it seems from her evidence that the concern was more that he had mixed with and trusted the wrong people. Indeed the impression I got was that his wife still believes that he is innocent and she had not seen the part of exhibit A in this case which were the facts agreed between the prosecution and the defence upon which I would sentence him. There is limited evidence or remorse; in fact the only evidence would appear to be from the plea of guilty. 18. Turning to Mr El-Skaf. He is aged twenty-three and was also born in Lebanon. He came to Australia in 1996 with his wife and became an Australian citizen in 1999. He has three sons all of whom have diagnosed particular problems. The three sons are twelve year old Mohamad, eleven year old Fouad and six year old Khaled. They have exhibited traits of violence to teachers and students at school. Mr El-Skaf, who was called as a witness by Mr Jankowski, said the medication they receive sometimes helps but not always. The boys have been violent to their mother, in particular the eldest -twelve year old Mohamad - who is larger than his mother, and who does not respect his mother; he has some respect for his father who is better able to manage him. Both Mr El-Skaf and his wife have some family in Australia but both families are very busy and preoccupied with their own particular domestic problems often involving children. Mr Jankowski also called as a witness Mr El-Skaf's wife, Ms Rifai. Mr El-Skaf acknowledged in his evidence his remorse which I accept. He realised he had hurt a number of people including his own family and insurers and the people who had lost their cars. There was evidence from Ms Rifai of how difficult the boys were to control and of the importance of Mr El-Skaf being in the household. They own their own home and are paying a mortgage of some $1000 a week, but the importance of Mr El-Skaf is that he is better able to manage the boys, all of whom have had experience of being suspended by their schools. The hardship would increase when the boys go to various schools next year. 19. Mr Taylor, an experienced psychologist, says that Mr El-Skaf not being in the household will be a very great burden on his wife and family. And Dr Mansour said that there was "no way the mother alone could control the boys without the father" and that his absence would result in "absolute chaos in their behaviour." Ms Rifai, whom Dr Mansour is treating, herself, understandably, suffers from stress and anxiety. Mr El-Skaf has no criminal record and his presentence report contained an open and frank acknowledgement of his role and evidence of remorse which, as I said, was also contained in his own evidence as well as in the plea of guilty and in Mr Taylor's report. He has a low to moderate risk of recidivism assessed by Mr Taylor and also good prospects of rehabilitation. He has been diagnosed as having a stress and anxiety disorder and a major depression due to his dysfunctional family and the circumstances in which he finds himself. He has a limited education and has had limited employment in Australia because of his lack of understanding of English. His family are in difficult financial circumstances and they receive government benefits. He has a good character referee who vouches for him. 20. Mr Jankowski argued that the hardship which would be caused to the family by him being sent to gaol full-time is so bad is that I should impose a sentence of home detention if it assessed as appropriate or periodic detention. I do not accept that submission. One reason is the evidence given by Mr El-Skaf and his wife in cross-examination by Mr Vautin where they both acknowledged that despite the difficulties, his wife would not give up on their children and she would do her best to see that they were properly treated and educated. Another reason is that I regard his participation in the crime as so serious that in my opinion a sentence other than full-time custody would not be appropriate. 21. So far as Mr Hello is concerned, taking into account his involvement in the crime and the offence that he has pleaded guilty to on the Form 1, I assess an appropriate overall sentence as being six years imprisonment. However, he has pleaded guilty and made the administration of justice in this State more manageable and I propose to discount his six year sentence by twenty-five percent, so his final sentence will be fifty-four months that is, four and a half years. The non-parole period is normally three-quarters of the full sentence, so that his non-parole period would normally be three and one-third years, but because he will need to concentrate on his rehabilitation and because this is his first time in custody I am going to reduce that non-parole period to two and a half years so that Mr Hello's final sentence will be four and a half years with a minimum of two and one half years to serve. 22. So far as Mr El-Skaf is concerned I assess his involvement in the crime as well as his personal circumstances as warranting an overall sentence of the same namely, six years. In his case I discount that sentence because of his willingness to plead guilty by fifteen percent which would reduce the sentence to just over sixty-one months, but I will round that off to five years. For a sentence of five years the non-parole period would normally be three and three quarter years representing seventy-five percent of five years, but because this is his first time in custody and he has good prospects of rehabilitation and not overlooking the needs of his family to a limited extent, I would reduce his sentence as well to two and one half years, so that his final sentence will be five years with two and one half years to serve. 23. Mr Hello, I am going to sentence you now, if you would stand up please. Mohamad Abdo Hello I set a non-parole period of two and a half years to commence on 17 September 2009 and to expire on 16 May 2012; the balance of the term will be two years to commence on 17 May 2012 and to expire on 16 May 2014. 24. Mr El-Skaf, if you would stand up. I set a non-parole period for your sentence of two and one half years to commence on 18 November 2009 and to expire on 17 May 2012; the balance of the term will be two and a half years to commence 18 May 2012 and to expire on 17 November 2014. HIS HONOUR : Miss Ervin, Mr Jankowski and Mr Velcic, now mathematics. ERVIN: Sorry your Honour, just to confirm, did you say 17 September or 17 November for Mr Hello. HIS HONOUR: I said 17 November, but I'm wondering if that's right. ERVIN: That would be-- HIS HONOUR: Did I say September? It should have been November. I said September for Mr Hello and it should have been November, and I'll explain it to Mr Hello in a moment. Mr Hello's sentence commences 17 November 2009 and the non-parole expires 16 May 2012; additional term 17 May 2012 to 16 May 2014. So take your time. There's two questions I'll ask all of you first, whether there's any factual errors which I have made and secondly, whether the mathematics are correct? Mr Jankowski? JANKOWSKI: Your Honour indicated that my client was 23 years of age. He's in fact 33. HIS HONOUR: Thank you, I have written 23; you're quite right. I can see where the error's made. He's born in 1976. JANKOWSKI: Yes your Honour. HIS HONOUR: You're quite right; it should be noted that he is 33 years of age. Thank you. JANKOWSKI: Thank you your Honour, and the maths appear to be correct your Honour for my part. HIS HONOUR: Does the maths work out? VELCIC: Yes the maths appear to be correct your Honour. HIS HONOUR: Mr Velcic, okay. Ms Ervin? ERVIN: Yes your Honour. HIS HONOUR: Any other factual matters? JANKOWSKI: Not from my part. VELCIC: No. HIS HONOUR: Now Mr Hello has, Ms Ervin, a number of other matters which are in the system, we're wondering what happens to those? ERVIN: Your Honour I did enquire as to whether there was a s 166 certificate or anything but nothing is indicated. HIS HONOUR: Because the registry will need to know what to do with them. VELCIC: There was a consolidation in respect of the primary matter and as I was - I thought that all other matters were resolved by that consolidation. There should be nothing further outstanding. The only matter that was potentially outstanding was the s 32 matter your Honour, and that was the basis of the plea and Ms Seto, the Crown Prosecutor, did a very detailed factual situation as your Honour can see. HIS HONOUR: Yes, so for some reason the other matters appear in the system, disposing of motor vehicle parts, theft, dishonestly possess, interfere with unique identifier, steal motor vehicle and there's a number of them, and I'm sure what Mr Velcic says is right-- ERVIN: Yes your Honour. HIS HONOUR: --but the registry is going to want to know, apparently, what they do with those. Is that something you - well, no, we'd better sort it out now because Mr Velcic-- ERVIN: Your Honour I would propose withdrawing them, however, without having instructions I'm reluctant to do that, but I suspect that that is the action that will be taken. Given the time, I don't know whether Mr Velcic would approve of it being or would consent to it being done in chambers if it is simply a case of having them withdrawn. VELCIC: I've no difficulty with that your Honour. I'm happy for that communication to take place. If we need to come back, we'll come back another day. HIS HONOUR: Well rather than doing it in chambers we can do it in open court. I mean I'll be here this afternoon. ERVIN: Well in his absence if-- VELCIC: There's no difficulty your Honour-- HIS HONOUR: Yes in your absence, if it's a withdrawal it will be - that's something you consent to. If it's anything more complicated then you need to talk to Mr Velcic and make an arrangement for a time that suits him and you. ERVIN: Yes your Honour. HIS HONOUR: Or Mr Vautin and me and sort it out, thanks Mr Velcic. VELCIC: Thank you your Honour. HIS HONOUR: Now there's nothing else? ERVIN: The confiscation issue your Honour. The application-- HIS HONOUR: Which matter? ERVIN: --I've been asked if they could be stood over for a month to Sydney-- HIS HONOUR: Sure, which matters are these? ERVIN: As far as I understand it's in regards to all four matters, the confiscation application-- HIS HONOUR: All right, so that there are applications for confiscation orders is that right for all of them? ERVIN: Yes your Honour. HIS HONOUR: And you're asking for them to go over for a month? ERVIN: Yes your Honour to the 3.1 list in Sydney. HIS HONOUR: Are there proceedings; have proceedings been commenced? ERVIN: No, that's why we're asking for a month so that that can be properly attended to. HIS HONOUR: I can understand that, but what am I standing over because there's no proceedings, if you see what I mean. Until there's an application there's no - the sentence proceedings have just finished, do you see the point? ERVIN: Your Honour I do apologise-- HIS HONOUR: No that's all right. ERVIN: Those are my instructions. HIS HONOUR: Yes I understand; no, well I'm not going to. I would think that if you lodge an application or a series of applications that the court will list them at some stage and then bring the offenders in and the lawyers in, but I don't think I can adjourn them without proceedings because-- ERVIN: Your Honour may I have a moment. HIS HONOUR: Yes you may. ERVIN: Your Honour I understand the issue. There's nothing I can do in this respect-- HIS HONOUR: No nothing more you can say-- ERVIN: --no, because I've got no papers and as far as I know they've not been made yet. HIS HONOUR: No, I understand. I won't stand the matters over because there's nothing to stand over, but thank you. ERVIN: Thank you your Honour. 25. Mr Hello, your sentence commenced on 17 November 2009 and it finishes on 16 May 2014, do you understand? OFFENDER HELLO: Yes. 26. Your minimum time in gaol is from 17 November 2009 to 16 May 2012; 16 May 2012 is the first date upon which it appears you'll be eligible for parole. Whether you get parole or not is up to the Parole Authority. After parole your overall sentence expires on 16 May 2014. 27. Mr El-Skaf, your sentence commenced on 18 November 2009 and the overall sentence expires five years later on 17 November 2014; the minimum time in gaol is from 18 November 2009 until 17 May 2012; 17 May 2012 is the first date on which it appears you will be eligible for parole. Whether you get parole or not depends on the Parole Authority. After your parole you serve the balance of your sentence until 17 November 2014, do you understand? OFFENDER EL-SKAF: (No verbal reply) HIS HONOUR: Okay. Thank you. MATTER STOOD IN LIST HIS HONOUR: Ms Ervin, my associate has reminded me about those other charges? ERVIN: Yes your Honour, I've just asked my colleague to pass the message on. The solicitor who has got carriage of the matter is unfortunately in the Supreme Court at the moment, so I've not been able to take instructions and I don't want the matter to be resolved without actually having clarified what the actual position is-- HIS HONOUR: I can understand that. ERVIN: --so if it would suit your Honour would tomorrow morning be suitable. HIS HONOUR: Yes, that's all right. Would you mind letting-- ERVIN: Mr Velcic know. HIS HONOUR: Yes, just what you've told me now and that he is excused if it does not involve anything contentious, I mean if it can be mentioned by consent tomorrow so he knows what you're going to say or whoever it is that appears, and that that's satisfactory, just keep him informed of what's happening. ERVIN: Thank you your Honour. HIS HONOUR: Thank you Ms Ervin. You might check with him that he doesn't need his client here. ERVIN: Your Honour, I suspect that if it is the case that further action is going to have to be taken then we'll need to get a new date-- HIS HONOUR: You are right. ERVIN: --so he'll be needed, but if not it can just happen-- HIS HONOUR: --you are right. I agree with you; the circumstances are that - so you can mention it tomorrow and-- ERVIN: If it needs to be re-listed a s 77 order can be applied for then. HIS HONOUR: Good, I agree. ERVIN: Thank you your Honour. HIS HONOUR: Thanks Ms Ervin. ADJOURNED FOR MENTION ONLY TO WEDNESDAY 25 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.