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. Grounds of appeal 22 Mr Game of Senior Counsel, who appeared for both applicants, submitted before this Court that the sentences imposed upon both applicants were manifestly excessive and that his Honour must have given inadequate discount for the pleas of guilty and for the contrition expressed by the applicants. Mr Game also submitted that in the case of the applicant Hassan, his Honour did not have proper regard to the evidence concerning his mental state. It is convenient to deal with this latter submission first since it concerns only the applicant Hassan. 23 What his Honour said in his sentencing remarks about Hassan's mental health was this: "His mental health is referred to in paragraphs 38 and 39 of his statement and the reports of Dr Westmore and Mr Borenstein. His present mental state is, it seems to me, a result of his being arrested and incarcerated, rather than anything else." 24 Mr Game submitted that the reports of Dr Westmore and of Mr Borenstein preceded the date upon which the applicant went into custody so that what his Honour said was incorrect. That is true, but the applicant was seen by Dr Westmore and by Mr Borenstein after he had pleaded guilty to the offences charged. The history which Dr Westmore took from the applicant was taken approximately one month after the guilty pleas had been entered and the doctor recorded how the applicant felt as he awaited sentence. Mr Borenstein took his history from this applicant shortly before the applicant saw Dr Westmore, again after the applicant had pleaded guilty. 25 It seems to me that it was proper for his Honour to conclude that there was nothing to indicate that the applicant was suffering from any mental disorder at the time that he committed the offences charged. The condition diagnosed by Dr Westmore (recorded in para 17 above) was a condition which seemingly developed consequent upon the detection of the relevant offences. What Dr Westmore had to say and what Mr Borenstein had to say was certainly relevant to the consideration of contrition and remorse, but his Honour made favourable findings from the applicant's point of view on those matters. 26 Having considered the reports of Dr Westmore and Mr Borenstein, I am not persuaded that the inaccuracy of expression in his Honour's remarks above cited caused the sentencing process to miscarry in the case of this applicant. 27 Concerning the guilty pleas entered by both applicants, it is clear that his Honour took them into account. His Honour said: "Each prisoner pleaded guilty at the earliest opportunity. Each prisoner's guilty plea saved the State the time and costs of a trial. Each prisoner's guilty plea shows contrition. The value to be given to the prisoner's guilty plea must be assessed having regard to the strength of the Crown's case. In my view the Crown had a strong case against each prisoner. I see the prisoners' guilty pleas as recognising the strength of the Crown's case and the inevitability of a guilty verdict." 28 Mr Game pointed out that his Honour did not expressly say that he had regard to the utilitarian aspect of the plea. He referred to contrition, but Mr Game submitted that was clearly a different matter. I take his Honour's remarks as indicating that he did indeed have regard to the utilitarian value of the plea. He expressly referred to the saving of the time and costs of a trial, and I do not infer from the remainder of what his Honour said in the above passage that he was deflected from bringing into account the utilitarian significance of the plea. 29 It was submitted that because of the number and nature of the offences concerning each applicant, the saving in time and cost was very significant in both cases, and, under the guidelines given in R v Thompson (1999-2000) 49 NSWLR 383, the discount attracted by the plea should have been in the order of twenty-five percent. In addition, Mr Game submitted the applicants were entitled to have taken into account their contrition which was found to be genuine. 30 Since these applicants were sentenced before the decision in Thompson, his Honour did not express what discount he gave for the early pleas, but it does not seem to me, when consideration is given to the sentences that were imposed, that they reflect that his Honour must have given too little discount for the guilty pleas, nor do those sentences reflect that his Honour failed to have proper regard to the contrition which he found. 31 Whether the judge failed to make due allowance for the guilty pleas and for the contrition can only be determined in the circumstances by looking at the sentences themselves. Were they manifestly excessive? 32 In submitting that that question should be answered in the affirmative, Mr Game argued that when he accumulated the sentences the judge failed to pay proper regard to totality and to the principles expressed in Pearce v The Queen (1998) 194 CLR 614. I do not accept that this is so. His Honour specifically directed himself to address the issue of totality in his remarks at p 12: "In view of the fact that I am to sentence the prisoners for a number of offences committed by each of them, and in doing so I am to take into account a number of further offences committed by each of them, it seems to me to be appropriate that I determine the prisoners total criminality for the offences. Doing so, I have determined that the appropriate total sentence is imprisonment for a period of five years and six months." 33 What Pearce required was that his Honour "fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well of course, as questions of totality." (See the joint judgment of McHugh, Hayne and Callinan JJ at 624.) 34 It seems to me that his Honour structured the sentences with the decision in Pearce in mind. 35 In my opinion, error has not been shown in either of these cases and the sentences which were imposed on both applicants were within the available range having regard to all the circumstances, and to his Honour's findings recorded in para 13 above. 36 Accordingly, in the case of each applicant, I propose that leave to appeal be granted, but that the appeal be dismissed. 37 BARR J: I agree with Studdert J. ********** 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. 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