New South Wales Court of Criminal Appeal CITATION : Regina v Mortada [2002] NSWCCA 152 FILE NUMBER(S) : CCA 60541 of 2001 HEARING DATE(S) : 25 March 2002 JUDGMENT DATE : 25 March 2002 REGINA PARTIES : v Khoder MORTADA JUDGMENT OF : Levine J at 1; Carruthers AJ at 19 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0763 LOWER COURT JUDICIAL Hock DCJ OFFICER : P Barrett (Crown) COUNSEL : R Toner SC (Applicant) SE O'Connor (Crown) SOLICITORS : Macedone Christie Willis (Applicant) LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: Regina v Henry (1999) 46 NSWLR 346 DECISION : See paragraph 18 - 1 - (Ex Tempore – Revised) [2002] NSWCCA 152 IN THE COURT OF CRIMINAL APPEAL 60541 OF 2000 LEVINE J CARRUTHERS AJ MONDAY 25 MARCH 2002 REGINA V MORTADA Khoder Judgment 1 LEVINE J: The applicant, Khoder Mortada, appeals against the sentences imposed upon him by her Honour Judge Hock in the Sydney District Court on 10 August last year. 2 The offences for with which the sentences were imposed were first, steal from the person as provided for by s 94 of the Crimes Act, 1900 with a maximum penalty of 14 years, and the second robbery in company pursuant to s 97(1) of the Crimes Act with a maximum penalty of 20 years. 3 The facts of each offence, the first of which occurred on 26 May 1999 and the second, 9 January 2000 are as follows (based upon her Honour's review of them). 4 On the evening of Wednesday 26 May 1999 the victim, Mark Ruthen, was drinking and playing poker machines in the Vegas Bar in Darlinghurst Road, Kings Cross. The offender was also present in that establishment but they did not know each other. There was a brawl between Mr Ruthen and other unknown people in which Mr Ruthen was injured and may have been unconscious briefly. Mr Ruthen was subsequently escorted from the premises by security staff of the Vegas Bar and was left standing on the footpath outside the bar. He was there approached by the offender who threatened him and demanded his wallet. Mr Ruthen took his wallet from his rear pocket and handed it to the offender. Mr Ruthen later told police that he had $170 in the wallet when he handed it to the offender. After taking the wallet from Mr Ruthen the offender walked quickly away up Darlinghurst Road in the direction of Kings Cross police station. Mr Ruthen saw a police car parked about seventy meters away in Springfield Plaza. He approached this vehicle and reported the incident to police officers in the car. 5 The police then took Mr Ruthen into Darlinghurst Road in an attempt to locate the offender. Shortly after turning into Darlinghurst Road Mr Ruthen pointed to the accused and told the police something. At this stage there were a large number of pedestrians in the vicinity. The driver of the police vehicle stopped it near the offender and an officer called on him to stop. The offender then ran away along Darlinghurst Road with the police in pursuit. The offender was apprehended by police a short distance away still in the Kings Cross area. Mr Ruthen's wallet was found by police on the roadway in Kellett Way about twenty metres from where the accused was arrested. At that time there were no other people in the vicinity. There was no money in the wallet when the police found it. The offender was arrested and taken to Kings Cross police station. He took part in an electronically recorded record of interview in which he claimed that he had come into possession of the wallet when he found it on the floor after the assault on Mr Ruthen by another man. When the offender was searched in Kings Cross police station he had in his possession a credit card belonging to Miss Karen Simpson. She had lost a handbag containing that card some time previously. That matter was the subject of the Form 1 offence. 6 In respect of the second offence, robbery in company, at about 2.50am on Sunday 9 January 2000 the victim, a Mr Rafiq, was at Kings Cross. There he met a Lebanese man called Salem. This man suggested that he and the victim go to Harry's Café de Wheels for a meal to mark the end of Ramadan. They walked a short distance together in Darlinghurst Road where they were met by the offender who was driving a BMW. Mr Rafiq and Salem got into the offender's car which he drove towards Woolloomooloo. However, the car turned right away from Woolloomooloo and Mr Rafiq questioned the route that they were taking. During this time the offender and Mr Rafiq spoke in Arabic. Mr Rafiq, who apparently is not fluent in Arabic, thought he heard the Arabic word for "gold" and therefore took off his gold bracelet and put it in his bumbag. The offender drove the car to Beare Park, Elizabeth Bay where he parked and alighted from the car. He then opened the door and ordered Mr Rafiq to get out. However, Mr Rafiq refused to do so. 7 The offender and Salem, having removed Mr Rafiq from the car, then proceeded to assault him. Salem put Mr Rafiq in a half Nelson hold. During the assault Mr Rafiq was punched and kicked and a gold chain was removed from his neck. His bumbag was also removed, this contained his gold bracelet which he had earlier put in the bag and it contained cash in new fifty dollar bills. Mr Rafiq was then bundled back into the car and the offender drove the car back to Kings Cross. During the assault Mr Rafiq had been calling for help and residents nearby had phoned the police. Mr Rafiq asked for the return of his property but the offender stoped the car at Kings Cross and told him to get out of the car. Mr Rafiq noted the registration number of the car and immediately reported the matter to Kings Cross police. A police car stopped the offender's car shortly afterwards near Sydney Airport. Mr Rafiq's mobile phone was found in the glove box of the car. The offender was searched and $400 in new fifty dollar bills was found in his possession. The accused was transported to Kings Cross police station in the police vehicle. After his arrival there police found a gold bracelet in the police vehicle. That bracelet was subsequently identified by Mr Rafiq as the one he had put in his bumbag before that bag was taken from him at Elizabeth Bay. Again a record of interview was conducted in which the accused agreed that he had been the driver of a car that Salem and the victim had got into the car at Kings Cross. He denied any wrongdoing and said he had tried to break up a brawl between Salem and Mr Rafiq at Elizabeth Bay. 8 The submissions on behalf of the applicant commenced with a proposition, the determination of which in the end will resolve in practical terms his application. That submission was to this effect: that her Honour, in relation to the pleas of guilty in the end allowed what she described as a 10 percent discount for the utilitarian value of the pleas. There seems to have been some issue as to whether any utilitarian discount was allowed, on the basis that the applicant pleaded guilty on the first occasion in the sense that, as I understand it, there was a plea before the committing Magistrate. When the matters came on before Luland DCJ there was a factual dispute. The applicant was permitted to change his plea with the outcome beneficial to him upon the adjustment, as I understand it, of the Crown case to produce an agreed statement of facts so that he was able to plead in April last year before Hosking DCJ to the two counts in the indictment which was accepted by the Crown in full discharge of the indictment. It was with that plea her Honour was concerned. For myself none of the history detracts from the availability of a plea at the earliest possible opportunity. 9 That discount, as I have said, was fixed at 10 percent by her Honour. Her Honour ordered, prior to imposing in relation to the steal from the person count, a fixed term of 6 months from 19 May to 18 November last year, which has now been served, and prior to imposing, in relation to the robbery in company, a term of 4 years of imprisonment commencing on 19 November last year and expiring on 18 November 2005, with a non-parole period of 2 years to commence on 19 November 2001 and to expire on 18 November 2003. 10 The end result, on examination of her Honour's quite thorough remarks on sentence, appears to flow from an allowance being made in respect of her Honour deciding to use, as Mr. Toner describes as the "old language", a head sentence and taking into account for that purpose assistance to the authorities in the nature of the applicant's custody. 11 The sentences I have just outlined also were the result of her Honour finding "special circumstances" constituted by the following: it is the first time the applicant has been in custody; the sentences her Honour was then about to impose were to be cumulated and what her Honour said were the prospects of rehabilitation. After stating those considerations her Honour merely said, "I propose to reduce the non-parole period". 12 Before returning to the nub of this application, namely, the discount allowed and how it can be perceived in the overall sentence as structured, I make the following observations. In relation to the submissions with respect to Regina v Henry (1999) 46 NSWLR 346, I am satisfied that the applicant does not fall within the Henry criteria, if such terminology can with facility be used in any real sense, by reason, inter alia, of the offences being aggravated by the applicant being on bail at the time of the commission of the robbery in company offence, when there was violence used in the form of kicking and punching, and the existence of some criminal history in the applicant. The resolution of this application does not in the end, in my view, depend upon any exclusive approach to Henry as a guideline judgment on a fact by fact, issue by issue, basis. 13 In relation to the question of assistance to authorities and the prospects of harsher custodial conditions, it seems perfectly clear to me that her Honour was sensible of those factors and took them into account. This is not an occasion to determine whether s 22 of the Crimes (Sentencing Procedure) Act, 1999, and its proper construction, ought not apply to the circumstances where the assistance was needed in the investigation or prosecution of a crime of which the applicant was very much a part, that crime taking place in a custodial situation. For present purposes her Honour sufficiently gave weight to it. 14 In coming to the ultimate resolution of this application, for myself, looking at the sentence in terms of error exposed generally, say for one matter to which I will come, this court is, as her Honour was, sensible of the provisions of s 23(3) of the Crimes (Sentencing Procedure) Act and is sensible of the features attending this applicant's breaches of the law whilst on bail and shortly after, in the first instance, being placed upon a community service order. 15 The point that has been made successfully for the applicant is that her Honour in allowing 10 percent for the plea of guilty for the utilitarian value of it, allowed a discount which, whilst it was always in her discretion, reflected error founded upon, in my view, a misunderstanding of the forensic history of the charge and the plea. Otherwise an analysis of the sentence imposed, particularly in relation to the non-parole period on its face, being 50 percent of the robbery in company sentence as distinct from some proportion of the four and a half years imposed, can be considered generous. The resolution of this application, acknowledging that area of error, will bring about a reduction in the sentence to be served by the applicant and it is a reduction which reflects overall, otherwise the matters her Honour properly took into account. 16 The resolution of this application has also been complicated by matters of mathematics. The starting point is to go to that figure in respect of which it can be said 4 years represents 90 percent. I am of the view one approaches sentencing in such circumstances on the basis that mathematical problems be resolved in favour of the applicant. On the basis that the figure reduced by 10 percent was that which I have mentioned, the application of the 20 percent discount which I consider to be appropriate, leaving aside the sentence in fact served, brings about a sentence of imprisonment for 3 years and 6 months. 17 That sentence will commence on 19 November 2001 and expire on 18 May 2005. Adopting mathematically as best one can a proportionate non-parole period the adjustment is to 1 year and 9 months to commence on 19 November 2001 and expire on 18 August 2003. 18 Thus it comes about I would propose that the application for leave to appeal be granted, the appeal be allowed in relation to the sentence of imprisonment imposed in respect of count 4, the robbery in company, but the sentence imposed by the learned sentencing judge be set aside, and that the sentence which I have elucidated be imposed in its stead. 19 CARRUTHERS AJ: I agree. 20 LEVINE J: The orders of the court will be those proposed by me. ********** 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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