R v Hassan & Darwich [2001] NSWCCA 88

New South Wales Court of Criminal Appeal

CITATION : R v Hassan & Darwich [2001] NSWCCA 88 FILE NUMBER(S) : CCA 60301/00; 60474/00 HEARING DATE(S) : 19 March 2001 JUDGMENT DATE : 23 March 2001

PARTIES : Regina v Brahim Hassan Regina v Ali Darwich JUDGMENT OF : Studdert J at 1; Barr J at 37

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/0195 LOWER COURT JUDICIAL Nield DCJ OFFICER :

COUNSEL : P. Hock (Crown) T.A. Game SC/S.C. Russell (Applicants) SOLICITORS : S.E. O'Connor (Crown) Paul A. Brown & Co. (Applicants)

LEGISLATION CITED : Crimes Act CASES CITED: R v Thompson (1999-2000) 49 NSWLR 383 Pearce v The Queen (1998) 194 CLR 614 DECISION : Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

60301/00 60474/00

STUDDERT J BARR J

Friday 23 March 2001

REGINA v BRAHIM HASSAN REGINA v ALI DARWICH JUDGMENT

1 STUDDERT J: Each of these applicants, Brahim Hassan and Ali Darwich, pleaded guilty to a number of offences under s 188 of the Crimes Act and each offender also sought to have taken into account a number of scheduled offences. The offences concerned disposing of stolen motor vehicles and receiving stolen motor vehicles and in the case of each applicant one of the scheduled offences was that of being an accessory before the fact to the disposal of a stolen vehicle. 2 Both offenders received the same effective sentences. Those sentences were three cumulated terms of imprisonment, the first periods being for a fixed term of one year, the second being also for a fixed term of one year and the third being for a minimum term of one year and three months, and an additional term of two years and three months. In effect then, each applicant was sentenced to aggregate sentences of five years and six months with an effective non parole period of three years and three months. In sentencing the applicant Hassan on counts 5 and 6 (that is in imposing the third of the accumulated sentences), the judge took into account all the scheduled offences referable to him. Similarly, in sentencing the applicant Darwich on count 5 (that is in imposing the third of the accumulated sentences), the judge took into account all the scheduled offences referable to him. 3 Findings of special circumstances were made in each case. 4 Each applicant seeks leave to appeal against the sentences imposed. 5 Each offence was in a category for which s 188 of the Crimes Act provided a maximum penalty of ten years imprisonment. 6 The offences for which each applicant was sentenced were of a similar nature and the commission of the offences was detected in the course of the one police investigation, but the offences for which the applicants were sentenced were not the same offences. The criminality in Hassan's case related to different motor vehicles from the criminality in Darwich's case. 7 In Hassan's case the offences committed, including those scheduled offences taken into account, were committed in the period between January and August 1998. There were five offences of disposing of a stolen motor vehicle knowing it to be stolen and one offence of receiving a stolen motor vehicle knowing it to be stolen. The scheduled offences, seven in number, comprised one offence of being an accessory before the fact to the disposal of a stolen motor vehicle, two offences of receiving stolen motor vehicle and a number of offences of disposing of a stolen motor vehicle knowing it to be stolen, and one offence of attempting to dispose of a stolen vehicle, knowing it to be stolen. 8 In the case of Ali Darwich, his pleas related to three counts of disposing of a stolen motor vehicle knowing it to be stolen, two counts of receiving a stolen motor vehicle knowing it to be stolen, and seven scheduled offences, five of which concerned disposing of stolen motor vehicles knowing them to be stolen, one of which concerned being an accessory before the fact to the disposal of a motor vehicle knowing it to be stolen, and one of which concerned receiving. All the offences in the case of Darwich, including the scheduled offences, were committed between April 1998 and August 1998. 9 The pattern of behaviour of each applicant was similar. The applicants were not working in unison, at least on the evidence presented to the sentencing judge, but they were engaged in what the sentencing judge referred to as "stolen vehicle rebirthing" 10 The extent of their engagement was, in each case, found by the judge to be engagement "to a real and significant degree" (sentencing remarks, p 5). 11 The method of operation of each offender was described by the judge (sentencing remarks pp 6-7) to be as follows: "What each prisoner did, apparently separately from the other prisoner, was this: he purchased a 'written off' vehicle at an auction. Then he put an 'order' with somebody, who has not been identified, for a stolen vehicle of a make and model similar to the 'written off' vehicle. Then, after receipt of the stolen vehicle, he replaced the vehicle identifiers from the stolen vehicle with the identifiers removed from the written off vehicle. The he, or someone on his behalf, registered the stolen vehicle as the newly repaired written off vehicle. Then he, or whoever was the registered owner of the rebirth vehicle, sold it to an innocent purchaser. The owner of the stolen vehicle, or the vehicle's insurer, would suffer the loss of the stolen vehicle. After the rebirthed vehicle was recovered by police, the innocent purchaser would suffer the loss of the purchase price, although the original owner, or the vehicle's insurer, would recover some of the initial loss. As I have said, each prisoner was involved to a real and significant degree in the stolen vehicle rebirthing business and each prisoner's criminal acts resulted in substantial losses being suffered by innocent people or insurance companies." 12 His Honour made this finding concerning the losses suffered by reason of the offences committed by the applicants (p 5-6, remarks on sentence): "The losses suffered by the owners and/or insurers of the stolen vehicles received, rebirthed and disposed of by the prisoner Hassan and the innocent purchasers of the rebirthed stolen vehicles purchased from the prisoner Hassan totalled three hundred and seventy seven thousand, three hundred and seventeen dollars. And the same insofar as the prisoner Darwich is concerned totalled three hundred and forty three thousand, seven hundred and eighty two dollars, eighty eight cents." 13 His Honour later said (p 9 of the remarks on sentence): "It must be said immediately that the offences are serious offences. They were well planned. They caused substantial losses to innocent people. They were committed solely for financial gain. The prisoners were motivated by greed. The business of rebirthing stolen vehicles must attract an appropriately salutary punishment." 14 That assessment by his Honour is undoubtedly correct. 15 I turn to the subjective features in this case. 16 Brahim Hassan was born on 22 February 1967, so that he was thirty-three years of age at the time of being sentenced. He is a married man with two young sons. He came from a stable family background and was educated to High School Certificate standard. After leaving school, he was employed in a number of positions and the last of these was with Pay Television Installations at Silverwater. 17 The sentencing judge had before him a report from Dr Westmore, psychiatrist, who made an assessment of this applicant on 14 March 2000. He diagnosed the applicant "to be suffering from an adjustment disorder of at least moderate severity, he has symptoms both of depression and anxiety. He does not suffer from an anti-social personality disorder…" 18 His Honour remarked that so far as he was aware the applicant's physical health was excellent. 19 His Honour addressed the applicant's criminal record, minimal as it was, and he approached his sentencing task upon the basis that this applicant was a person of unblemished character. 20 Turning to the applicant Ali Darwich, he was born on 10 December 1972 so that he was twenty-seven years of age at the time he was sentenced. The judge drew on the Probation and Parole Officer's report for details of this applicant's background and upbringing. The Probation and Parole Officer recorded in the report addressed by his Honour that this applicant was born in Syria. His father died when he was fourteen but he had a close and supportive relationship with his mother and siblings. He served in the army as a conscript before coming to Australia in 1994, after which time he had employment as a cleaner and in car detailing positions. At the time of the report, he was employed casually as a panel beater. This applicant is unmarried. Nothing was placed before the sentencing judge to indicate other than that he was in good health. His Honour found this applicant was of unblemished character. 21 The judge made favourable findings concerning both applicants as to contrition. He did not doubt the genuineness of the expressions of contrition made by both applicants.