R v ELCHAMI [2001] NSWCCA 285

New South Wales Court of Criminal Appeal

CITATION : R v ELCHAMI [2001] NSWCCA 285 FILE NUMBER(S) : CCA 60284/01 HEARING DATE(S) : 24 July 2001 JUDGMENT DATE : 24 July 2001

PARTIES : Regina Wassim ELCHAMI JUDGMENT OF : Sully J at 32; Hulme J at 1; Newman AJ at 33

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Mahoney DCJ OFFICER :

COUNSEL : Crown: RA Hulme Respondent: JS Stratton SOLICITORS : Crown: SE O'Connor Respondent: DJ Humphreys

DECISION : See paragraph 30

IN THE COURT OF CRIMINAL APPEAL No: 60284/01 HULME J SULLY J NEWMAN AJ

Tuesday, 24 July 2001 REGINA -v- Wassim ELCHAMI

JUDGMENT 1 HULME J : This is an appeal by the Crown against concurrent sentences imposed by Judge Mahoney on 20 April 2001 whereby: (i) On a charge of aggravated robbery and taking into account two matters on a Form 1 the respondent was sentenced to imprisonment for five and a half years including a non-parole period of twelve months, and (ii) On a charge of robbery in company the respondent was sentenced to imprisonment for four years, including a non-parole period of twelve months. 2 The first charge was laid under s 95(1) of the Crimes Act and the second under s 97(1). Each charge carried a maximum penalty of twenty years imprisonment. The circumstances of aggravation particularised in the first charge were that the respondent "did use corporal violence on Jonathan Gray Tindall and deprive Jonathan Gray Tindall of his liberty". 3 The circumstances of the offences and other conduct of the respondent relevant to the determination of the appeal are as follows. 4 On the night of 30 October 1997 the respondent and two other persons attended a residential unit complex at Kirribilli seeking to meet up with Roderick Tindall. There they happened to meet up with Jonathan Tindall, who had attended the complex with a view to meeting his cousin. The respondent and those with him then physically assaulted Jonathan Tindall by grabbing him by the arms, forcing him to the foyer of the complex where they struck him a number of times with closed fists to his head area. They then forcibly restrained him and escorted him against his will to the Greenwood Hotel. In the course of the journey Jonathan Tindall was again punched a number of times and two of the persons produced knives. They took his wallet, threatened to kill him if he "fucked" them around and on arrival at the hotel sent him inside to contact his cousin and then return with his cousin outside. Jonathan Tindall was told that the three knew where he lived and if he did not return "all your family are dead". It was these events which were the subject of the first charge. 5 Inside the hotel Jonathan Tindall contacted police and his cousin Roderick. The respondent and his accomplices left the hotel and returned to the vicinity of the premises of Roderick Tindall. 6 Roderick Tindall left the hotel in company with two other men and went to his residence. He then sought to return to the hotel. As he did so, the respondent and his two accomplices approached them. There the three attacked Roderick Tindall and assaulted him by open-palmed pushes to his torso. One of the offenders also produced a knife and held it adjacent to Roderick Tindall's chest. Then a police car appeared on the scene. The respondent's accomplices ran away, but he was arrested. 7 At the police station the respondent gave his name as Voultsis Marinos. He participated in an ERISP, wherein he acknowledged a number of the circumstances to which I have referred but denied or asserted he could not recall the assaults or threats or the effective kidnapping of Mr Jonathan Tindall. He was charged and released. It is to be inferred the release was on bail. The respondent never answered to it. 8 The assault on Roderick Tindall was one of the offences listed on the Form 1. The explanation for this assault, apparent from what was said to the two cousins during the course of the incident and in the respondent's ERISP was a belief on the part of one or more of the respondent and his accomplices that Roderick Tindall had sold a contaminated Ecstasy tablet to a nephew of one of the three, the tablet leading to the nephew becoming extremely ill. 9 The respondent's second offence was on 9 January 1999 when he and a co-offender accosted a seventeen year old male. The respondent put an extendable baton against the victim's neck and said, "Give me all your stuff." Someone else also grabbed the victim around his neck and searched his pockets and took a mobile phone, a gold ring, a $50 note and a wallet. After removing a second $50 note from that, the wallet was dropped and the offenders ran away. 10 This offence occurred in Campsie, where the victim had had some slight acquaintanceship with the respondent. On 6 March 1999 the victim again saw the respondent. There was conversation, wherein the respondent said he would obtain the return of the victim's phone. Soon after the victim called the police, who arrested the respondent. On this occasion the respondent gave his name as Sam Karaf and later Wasim Chami, accompanying each of these names with an inaccurate birth date. Finally, he acknowledged his identity. The offence was committed in the sight, if not the presence, of friends of the victim. 11 The second offence on the Form 1 was of larceny. On 22 April 2000 the respondent asked a shop proprietor to whom he was known if he could borrow his mobile phone, put his own sim card in it and make a call. The shop proprietor agreed. The respondent walked up and down the street in front of the shop, apparently speaking on the phone, for some twenty minutes and then ran off. Later that day he was arrested and denied he had taken any phone. 12 The respondent's subjective circumstances are that he was born on 1 October 1974, the youngest child of a large immigrant and close-knit family. He left school at the age of sixteen, worked for two years as a roof tiler, and subsequently had some work as a sales assistant for a mobile phone company. He also seems to have worked for some time for one of his brothers in another business associated with phones and apparently is able to return there upon his release from custody. 13 His father died in about 1998 and, according to a psychologist's report tendered on his behalf, the respondent then became very depressed and began to use heroin to cope. Psychological tests resulted in a statistically significant score on a measure of depressive behaviour. 14 The respondent has been incarcerated since 22 September 2000 and a report tendered before Judge Mahoney said that he had been employed within the maintenance section of Parklea Correctional Centre, where he had carried out his duties "with minimal supervision and to a very high standard and had proved himself to be a very reliable and conscientious worker". 15 Judge Mahoney had before him pre-sentence reports of 17 July, 14 November and 13 December 2000. In interviews for the first report the respondent asserted that immediately after the robbery in company offence he completed a seven-day residential detoxification program in Young and had been free of heroin since. The report records one urinalysis screening of 11 July 2000 which showed no heroin in his system but otherwise indicated the respondent had a long-term illegal drug problem that remained unresolved. The respondent failed to provide the Probation Service with information to support his claim of participation in the detoxification program, despite requests to do so. 16 I should interpolate that material tendered in this appeal confirms that the respondent did in fact participate in such a program. 17 The report also records the respondent had claimed he was the only one living at home caring for his elderly sick mother - an account the respondent changed when it was discovered another brother was also living at home. 18 The second report records the respondent displayed some remorse but no insight to victim issues. The third report records that the respondent reconfirmed his abstention from heroin and cannabis use for nine months prior to 14 December 2000 and that he minimised his role in the commission of the offences. 19 The respondent gave evidence before Judge Mahoney. In the course of doing so he said he felt remorse for his victims and it was not him at the time of his offences - he was under the influence of heroin. He said he had been taking no illegal drugs while in custody and an offence committed on his antecedent report recorded as having occurred on 22 September related to amphetamines. Asked about the false identification he provided in 1997, he said, "I was scared, I acted out of character". 20 Demonstrably, that latter statement is wrong. Two false identities and false birth dates when arrested in relation to the robbery in company offence so demonstrate. Tending in the same direction are the number of aliases referred to in the respondent's antecedents. 21 In cross-examination before His Honour the respondent acknowledged that, despite a statement to the psychologist of being heroin-free since the participation in the detoxification program and his evidence about the incident of 22 September 2000, he had in fact been convicted of two offences relating to heroin during the period. These were possession of heroin on 24 May 2000 and self-administration on 22 September 2000. I would have thought that in totality the matters to which I have referred indicate that not one jot of credibility attached to anything the respondent said. 22 His prior record included an offence of throwing a missile in 1992; obtaining a benefit by deception and making a false instrument in 1994; one instance of offensive language and three incidents of resisting arrest, also in 1994. 23 On behalf of the Crown in this appeal it was submitted that:- (i) His Honour could not have given adequate weight to the need for deterrence; (ii) The sentences demonstrate that undue weight must have been given to the respondent's subjective features; (iii) There was error in his Honour having ordered the sentences to be served concurrently without any disclosed or adequate reason for that course, and in circumstances where the offences were completely discrete and committed at substantially different times; (iv) His Honour could not have given any weight to the fact that the respondent was on conditional liberty at the time of the commission of his last two offences, that conditional liberty arising out of the bail granted in respect of the first series of offences; (v) His Honour erred in having regard or giving weight to the sentence imposed on a co-offender. 24 It was further submitted that the non-parole periods imposed were so obviously manifestly inadequate that, whether or not discrete error in the respects to which I have referred is shown, some error must have occurred. 25 The view I take in respect of this last submission makes it unnecessary for me to canvas the individual criticisms to which I have reference though I should say that I take the view that many of them are made out. 26 The respondent's second offence of robbery in company was a serious offence. Insofar as the weapon used was a baton rather than a knife - the sort of offence canvassed in the guideline judgment in R v Henry - the appropriate sentence was one which was less than the bottom of the four to five year term referred to in that judgment. Nevertheless, conduct such as the respondent demonstrated on the occasion of robbery in company of a citizen going about his lawful business is something which cannot be tolerated. Even had it not been committed on bail, it merited a significant period in prison for someone who, as the respondent had, had some appreciable prior criminal record. 27 The respondent's earlier offence was far more serious. One can but imagine the terror which must have been felt by Jonathan Tindall when, in the dark, he was confronted by three men, punched, had knives held to him, effectively kidnapped and marched along the road, with death threatened to his family if he did not do as he was told. That offence, in my view, merited a penalty at least equal to, if not significantly higher than, the four to five years guideline indicated in R v Henry and a non parole period more or less in line with the usual proportion. This community can not be expected to tolerate the behaviour of thugs, as the respondent and his mates clearly were that night. 28 By comparison the non-parole period of twelve months which was fixed is so obviously inadequate that this court has no option but to interfere. Given the separation in time and nature of the offences, it was a case also where sentences at least partly cumulative should have been imposed, albeit issues of totality had to be borne in mind. 29 This Court's practice when allowing a Crown appeal is to impose a sentence which is either the minimum which should have been imposed by the court below or a sentence which is less than that minimum in recognition of the fact that a respondent to a Crown appeal is facing the jeopardy of sentence for a second time. Thus it should not be thought that the sentences which I propose are what I would have imposed at first instance. 30 In my view, justice will be done to both the Crown and the respondent in this case if the sentences imposed by Judge Mahoney are quashed and in lieu thereof the Respondent is sentenced as follows:- In respect of the second charge - that is of robbery in company - the respondent be sentenced to a fixed term of imprisonment of twelve months commencing on 22 September 2000. In respect of the charge of aggravated robbery and taking into account the matters on the Form 1 the Respondent be sentenced to imprisonment of five years with a non-parole period of two years, those terms to date from 22 September 2001. 31 The reason for fixing a fixed term and not specifying a non-parole period in respect of the first offence lies in the second sentence. Judge Mahoney found special circumstances and it has not been suggested that that finding was erroneous. Hence, I feel able to depart from the usual ratio between non-parole period and the full term in respect of the second offence. 32 SULLY J: I agree with the orders proposed by his Honour. I am in substantial agreement with his Honour's expressed reasons for these orders. 33 NEWMAN AJ: I agree with the orders proposed. 34 SULLY J: The orders of the Court will be as proposed by his Honour Hulme J.