New South Wales Court of Criminal Appeal CITATION : REGINA v MAROUCHE [2001] NSWCCA 500 FILE NUMBER(S) : CCA 60475/00 HEARING DATE(S) : 23 November 2001 JUDGMENT DATE : 23 November 2001 Regina PARTIES : v Fadal MAROUCHE JUDGMENT OF : Barr J at 1; Adams J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/2055 LOWER COURT JUDICIAL Sides DCJ OFFICER : COUNSEL : Mr P Byrne SC (Applicant) Ms E A Wilkins (Crown) SOLICITORS : Ross Hill & Associates (Applicant) S E O'Connor (Crown) LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CASES CITED: Cartwright v The Queen (1989) D17 NSWLR 243 R v Thomson and Houlton (2000) 49 NSWLR 383 DECISION : See paragraphs 23 and 28. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60475/00 BARR J ADAMS J FRIDAY 23 NOVEMBER 2001 REGINA v Fadal MAROUCHE JUDGMENT 1 BARR J: I will ask Justice Adams to give the first judgment. 2 ADAMS J: This is an application for leave to appeal from an effective sentence of twelve years with a non-parole period of eight years imposed on the applicant on 27 July 2000 in the District Court. 3 The applicant had pleaded guilty to the following offences on indictment and a further twenty-nine matters on a Form 1 which were taken into account in a sentence for count one. "Counts 1 and 2: Crimes Act s112(3) BES in circs of special aggravation (being armed with a dangerous weapon, namely a pistol) carrying a maximum penalty of 25 yrs Count 3: Crimes Act s112(2) BES with intent in circumstances of aggravation (being armed with a syringe containing Hepatitis C), maximum 20 yrs Count 4: Crimes Act s112(2) BES in circumstances of aggravation (being armed with a syringe containing Hepatitis C), maximum 20 yrs Count 5: Crimes Act s97(1) being armed (with a syringe) with intent to rob, maximum 20 yrs" 4 I need briefly to advert to the circumstances of the offences of which the applicant was convicted which were undoubtedly very serious, a description which is not controversial (and for present purposes I am extracting material from the reasons for sentence below). 5 Taking count one, the circumstances were these. Shortly before 11 am on 24 December 1999 the offender, whilst armed with a .22 calibre pistol which he had stolen two days earlier, broke into a house at Greenacre. In the hallway he confronted a seventy-nine year old woman. He pointed the pistol at her, yelled that he would kill her, and demanded her purse. He then ransacked her room. After becoming agitated he took hold of the victim, pushed her into the kitchen where she fell onto a table. She regained her balance and sat in a chair, crying and hyperventilating. When the victim regained her composure she went to the back door and called out for help. The offender seized her, threw her to the floor, and yelled that he would kill her. He stole $411 from her before disconnecting the phone and leaving the house. His elderly victim was traumatised. She suffers from osteoporosis and Paget's disease affecting her bones. She was in considerable pain as a result of the attack and a pre-existing shoulder injury was exacerbated. 6 As to count two, this occurred on the following day, after dark. The offender, again being armed with a pistol, entered a house in Wylie Park by kicking in a door at the back of the house. Once inside he confronted the elderly occupants, who were eighty-five and eighty-six years old. He demanded money whilst pointing the pistol at one of the victims. He was given $600. The offender left, leaving the elderly victims in shock. 7 In respect to counts three and five, they occurred in the early evening of the following day, 26 December 1999. The offender forced open the rear door of a house in Punchbowl, using a jemmy bar he had taken from a garage at the premises. The house was empty. He was armed with a syringe filled with blood infected with Hepatitis C. This break and enter gives rise to count three in the indictment. 8 A short time later a neighbour, who realised there was an intruder in the house, went to the premises and closed the rear door in an attempt to stop the offender from leaving. The offender pushed open the door with sufficient force to cause the neighbour to fall to the ground. The offender then produced the syringe and held it towards the neighbour, about two foot from his face, and demanded his wallet. The neighbour stood up and started to walk home. The offender followed and repeated demands for the wallet. However, the neighbour fended him off with a dishwashing rack and a broom. He ran away. These events give rise to count five. The neighbour suffered a number of minor grazes. 9 The offender then ran off through adjoining properties, ending up in a house with an eighty-year-old occupant. He knocked at the security door, and, when the occupant came to the door, he forced it open and entered the house. The occupant was forced to the floor, the offender held the syringe to her face and demanded cash and gold. He dragged her to her room and repeated his demand for cash before going to the bedroom where he stole about $250. The offender was inside the house for about ten minutes or so, breaking the telephone before leaving. The victim suffered abrasions to the right forearm, bruising to both shoulders and bruising to her breast. As he left through the front door, blood from the syringe was sprayed onto the wall, probably by accident, and he made an effort to clean it off before fleeing. This offence was the fourth count in the indictment. 10 The police arrested him in a nearby car park. He still had the items he had stolen from the last person he had attacked. He made admissions about the matters in counts four and five, but not as to count three. He admitted that he had filled the syringe with his own blood and that he knew he had Hepatitis C. 11 The matters on the schedule, which numbered twenty-nine, were all breaking and entering dwelling house offences. 12 There is no doubt, as I have said, that these offences were extremely serious and warranted heavy sentences. However, there were three material considerations that quantified the sentencing result. The first was that of the thirty-four matters in respect of which the applicant was being sentenced, he had volunteered his responsibility for twenty-nine of them. In the circumstances, these admissions were especially significant since it is uncontroverted that had he not made those admissions, the police could not have charged him. There was no evidence which even pointed to him in relation to those matters. 13 This is significant in a number of respects. One of the most important is that it promises well for rehabilitation in a man twenty-four years of age, and hence still relatively young. 14 The second material consideration is that he assisted the police by giving them information. I do not think it either desirable or necessary to set out the nature of that information in this judgment. The material was before his Honour by way of a submission of the Crown Prosecutor on the plea. That material showed a significant degree of assistance, although in respect to some of it, further inquiries were underway by the police. 15 It is obvious from what I have already said that the material that needed to be considered by his Honour was quite voluminous, and his Honour adjourned the proceedings to permit him to consider the sentence and prepare his reasons for it. These reasons are very carefully drafted, if I may say so with respect. However, they omit a reference to the assistance to the police. 16 Quite apart from the common law as stated in such decisions of this Court as Cartwright v The Queen (1989) D17 NSWLR 243, s23 of the Crimes (Sentencing Procedure) Act 1999 required his Honour to take this into account. Because of some other issues that have arisen in this case, it is perhaps desirable that I should refer to that provision. It reads - (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. … (3) A lesser penalty is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence." 17 To enable the exercise required by the section it is clear that a sentencing court must first consider, although it may not be required to actually quantify, the penalty that "it would otherwise impose", and then, having decided what lesser penalty should be imposed, must consider whether it is "unreasonably disproportionate to the nature and circumstances of the offence". 18 For myself, I do not consider that this statutory scheme imposes any different mode or procedure of sentencing to that which was required under the common law. Nevertheless, it does show that some process of distinct analysis is required to enable the statutory scheme to be appropriately applied, an analysis which at least in broad terms quantifies the penalty which would otherwise be appropriate, the lesser penalty which it is thought should be imposed, and then that result tested to see whether it was or was not disproportionate in the statutory sense. 19 The third significant consideration was the plea of guilty, which was for all practical purposes entered at the earliest time and which undoubtedly justified, in relation to the utilitarian benefit to the criminal justice system, the maximum discount. What will amount to the maximum discount in any particular case is, as the Court of Criminal Appeal points out in Thomson and Houlton (2000) 49 NSWLR 383, a matter for the judge in each particular case to determine, having regard to the circumstances as they are disclosed in the proceedings. 20 For myself, in the circumstances of this case, I would take as indicative the approach suggested by the 25 per cent discount, specified as the upper figure of the appropriate range, in what I might call the conventional case with a reasonable degree of complexity where the plea is entered into at the first opportunity. 21 I should mention that there were significant subjective matters to which his Honour adverted, that I do not think need to be mentioned at the present time. The offender had a number of prior convictions for dishonesty and drugs, the first being when he was but thirteen years old. More troubling, in September 1998 he was sentenced to twelve months imprisonment in relation to larceny and break and enter with intent to commit a felony. It follows that the first offence on the Form 1 schedule in this case was committed whilst he was on parole. Twenty-nine of the offences were committed whilst he was on bail. These are, as his Honour found, significant aggravating factors that must be reflected in the sentence imposed. 22 I have said enough to indicate that, the s23 consideration apart, his Honour's judgment to my mind was well within the sentencing range. The only real question in this appeal is whether it reflects sufficiently that consideration. I have no doubt that his Honour simply overlooked it, and I think that the explanation for this lies in the way the information came to him, that is in the course of oral submissions, and the fact that his Honour reserved for some time, to give considered reasons for judgment, in the course of which I think his Honour looked carefully at the documentary material, but unfortunately omitted to recall the information that had been given him by the Crown Prosecutor concerning the applicant's assistance to police. I consider that this omission was an error requiring a reconsideration of the sentence by this Court. 23 Bearing in mind all the matters to which I have adverted, and acknowledging the presence, as his Honour found, of special circumstances (not sought to be controverted by the Crown), I would make the following orders - I grant leave to appeal against the sentence. The sentence in relation to count one should be quashed and substituted therefor should be a sentence of seven years, to commence 26 December 1999. I would substitute a term of six and a half years imprisonment on the fourth count. The other sentences should be confirmed. I would impose a non-parole period of six and a half years, so that the earliest date upon which the applicant will be eligible for parole is 25 June 2006. 24 BARR J: I agree with the judgment of Adams J and with the orders which his Honour proposes. In the end, this application came down to a very narrow issue, its having been finally accepted by the Crown, I think, that his Honour had failed in the circumstances described by Adams J to take into account the assistance to the authorities that s23 of the Crimes (Sentencing Procedure) Act 1999 requires to be taken into account. 25 The submission put against a reduction in the sentence on that count was that to do so would involve a contravention of s23(3). Thus, it was said, any combination of sentences producing a head sentence lower than twelve years, or a non-parole period lower than eight years, would be unreasonably disproportionate to the nature and circumstances of the offences. 26 The offences were very serious, and the sentences which the Court proposes to substitute would not ordinarily be appropriate to reflect the objective seriousness. However, it is the policy of the law in this State, as I understand it, that when offenders give substantial assistance to the authorities, they receive sentences which would otherwise be seen as inadequate. 27 I do not think that the sentences proposed by Adams J are so low as to be unreasonably disproportionate to the nature and the circumstances of the offences, bearing in mind the matters I have mentioned. 28 The orders of the Court are as proposed by Adams 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.