REGINA v EID [2003] NSWCCA 211

New South Wales Court of Criminal Appeal

CITATION : REGINA v EID [2003] NSWCCA 211 revised - 4/11/2003 HEARING DATE(S) : 15/07/2003 JUDGMENT DATE : 14 August 2003

JUDGMENT OF : Sheller JA at 1; James J at 2; O'Keefe J at 51 DECISION : Appeal allowed only in respect of non-parole period

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - drug offences - special circumstances LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 PARTIES : REGINA v Shadi EID FILE NUMBER(S) : CCA 60083/2003 COUNSEL : A Cook - Applicant D Howard - Respondent SOLICITORS : D Humphreys - Applicant SE O'Connor - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3268 FILE NUMBER(S) : LOWER COURT SIDES DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60083/03

SHELLER JA JAMES J O'KEEFE J

Thursday 14 August 2003 Regina v Shadi EID Judgment 1 SHELLER JA: I have had the benefit of reading in draft the reasons for judgment of James J with which I agree. Like his Honour, I was favourably impressed by Ms Ghazi's evidence. 2 JAMES J: In this application Shadi Eid applied for leave to appeal against a sentence imposed on him in the District Court on 19 September 2002 by his Honour Judge Sides QC for an offence of robbery committed on 1 May 2002, to which he had pleaded guilty. His Honour sentenced the applicant to a term of imprisonment for four years commencing on 1 May 2002, being the date on which the applicant had been arrested soon after having committed the offence, with a non-parole period of three years. Robbery is an offence under s 94 of the Crimes Act, for which the maximum penalty is imprisonment for fourteen years. 3 There was no dispute on the hearing of this application about the objective facts of the offence. The following statement of the facts of the offence is derived from his Honour's remarks on sentence. 4 On the afternoon of 1 May 2002 the victim of the offence was driving a vehicle in a suburb of Sydney. The victim stopped the vehicle at traffic control lights at an intersection. The applicant approached the victim's stationary vehicle and pointed to his wrist. The victim, believing that the applicant wanted to know the time, wound down the driver's window of the vehicle and told the applicant the time. The applicant told the victim to get out of the vehicle. 5 In his statement made to the police the victim said that the applicant had said to him "get out of the car before I hurt you". In the proceedings on sentence the applicant gave evidence that what he had said to the victim was "get out. I don't want to hurt you". In his remarks on sentence his Honour did not resolve this conflict, apparently considering it unnecessary to do so, as, on either version, what the applicant had said to the victim conveyed a threat to the victim. 6 Before the victim could wind up the window of the vehicle, the applicant thrust his hand through the open window and removed the key from the ignition. The victim got out of the vehicle and the applicant entered the vehicle and drove it away. 7 The victim reported the robbery to police. Later that afternoon police officers observed the victim's vehicle being driven by the applicant. The applicant became aware that he was under police surveillance and he increased the speed of the vehicle. The police pursued the speeding vehicle driven by the applicant. After police had pursued the vehicle for a number of kilometres, the vehicle being driven by the applicant collided with a median strip and then another vehicle. The applicant got out of the vehicle and ran. He was pursued by police on foot. The applicant managed temporarily to elude the police officers but he was located by a police dog and arrested. After he was arrested the applicant was interviewed by police in an electronically recorded interview, in which he made a number of admissions. 8 In both the interview on 1 May 2002 and in his evidence given in the proceedings on sentence the applicant said that he had committed the offence because of a drug debt. The account given by the applicant was that certain persons, who he declined to identify but who he indicated had been his previous drug suppliers, had left with him some item, which he declined to identify but which he said was worth about five or six thousand dollars, but a member of his family, his mother, had found the item and destroyed it. After the persons who had left the item with the applicant had demanded the return of the item, the applicant had had to tell them that the item had been destroyed. Those persons had then told the applicant that he should pay off his debt arising from the destruction of the item entrusted to him, by stealing cars nominated by those persons. 9 In the proceedings on sentence Judge Sides expressed concern about what appeared to him to be an inconsistency between answers given by the applicant in the interview on 1 May 2002 and evidence given by the applicant in the proceedings on sentence, about when it was that the alleged drug debt had been incurred. In his remarks on sentence his Honour found that the item had been given to the applicant while he was on bail for other offences at some time between 27 March 2001 and 5 September 2001 but the demand for the return of the item had not been made, until within a month before the applicant was arrested for the present offence. 10 His Honour found that the applicant could have paid off at least part of the debt, by selling furniture which he had purchased in anticipation of his forthcoming marriage, using money given to him for this purpose by his mother. His Honour said in his remarks on sentence that he could understand why the applicant would have found that method of raising money unpalatable but commented that the applicant had chosen another way to pay off his debt, which involved inflicting financial loss on another person by engendering fear in the victim of the robbery. His Honour accepted an assertion by the victim in his statement that at the time the offence was committed the victim "was scared for his life". 11 In his remarks on sentence his Honour noted some of the subjective circumstances of the applicant. The applicant was born on 4 December 1975. He had left school, without having obtained the School Certificate. After leaving school he had had some casual, unskilled jobs but had been unemployed for significant periods. 12 The applicant was to have been married on 17 May 2002 but the wedding had been cancelled as a result of the applicant's arrest. However, his relationship with his fiancée had continued and she still intended to marry him, after he was released from prison. 13 In his remarks on sentence his Honour found, importantly, that the applicant had had a long standing history of polydrug abuse. 14 The applicant had what his Honour described as a significant criminal history. This criminal history included inter alia the following entries. In 1994 the applicant had been convicted of being an accessory after the fact to armed robbery with wounding. In April 1996 he had been sentenced to imprisonment for four years for an offence of armed robbery in company. On 4 October 1999 the applicant had been placed on an eighteen months good behaviour bond for possessing a prohibited drug. In February 2000 he had been sentenced to imprisonment for two months for possession of a prohibited drug. 15 On 5 September 2001 the applicant had been sentenced to imprisonment for two years with a non-parole period of eight months on four charges of supplying a prohibited drug. As the applicant had already served the non-parole period fixed, the applicant had been released on parole immediately after he was sentenced, without returning to custody. The applicant was on this parole when he committed the present offence. His Honour rightly regarded the fact that the present offence had been committed while the applicant was on parole as a circumstance of aggravation. The applicant's criminal history disclosed that the applicant had breached parole on earlier occasions as well. The criminal history also disclosed that he had committed offences in breach of recognisances to be of good behaviour into which he had entered. 16 On 9 August 2002, the first day of the proceedings on sentence, the applicant gave evidence that, although he had previously abused illicit drugs, he was not using illicit drugs at the time he committed the present offence. The applicant gave evidence that, to assist him in overcoming his addiction to heroin, two naltrexone implants had been inserted in his body, the first in about November 2001 and the second only about two weeks before he was arrested on 1 May 2002. 17 On 9 August 2002 the applicant gave further evidence that, as a condition of his parole, he had undergone analyses of samples of his urine and "my urine analysis came back clean with the exception of two". The applicant said that one of these two exceptions was because he had taken Panadeine Forte, which contains some kind of opiate, and only one of the exceptions was because he had used an illicit drug. 18 By the time the proceedings on sentence were resumed on 19 September two pre-sentence reports prepared by a probation and parole officer had been received by the Court. 19 In one of the pre-sentence reports the probation and parole officer said:- "It is understood that Mr Eid is currently in receipt of naltrexone implants to assist his choice to not use heroin. Treatment beginning prior to being placed in custody. The offender informed this Service that it is his intention to continue such treatment". 20 The sentencing judge commented, in relation to this part of the pre-sentence report, that it was phrased in a very cautious fashion and did not refer to any material independent of the applicant that he had in fact received any naltrexone implant. However, it would appear from his Honour's remarks on sentence that his Honour did accept that the applicant had received two naltrexone implants. 21 In the same pre-sentence report the probation and parole officer stated that in October 2001 the applicant had admitted using heroin. The pre-sentence report continued:- "Mr Eid failed to report on that date (16 October 2001). On 18 October 2001 the offender informed this Service that he had used drugs since the last contact. He was instructed to report on 19 October 2001. On 19 October 2001 he reported to this Service and was instructed to submit to urinalysis within twenty-four hours and admitted to daily marijuana use. The offender was instructed to report to this Service on 3 December 2001: he failed to do so. A letter was sent directing him to report on 12 December 2001. On 6 December 2001 results of the urine test were positive to opiates and possibly Codeine. On 7 January 2002 results from urine testing were 'no drugs detected'. On 8 April 2002 the offender was directed to undergo urine testing and provide results to this Service. He failed to do so 22 April 2002. Urine submitted for testing on 9 February 2002 indicated that the 'sample' was 'not urine'. The results of urine testing on 15 April 2002 indicated a positive result for opiates/morphine and that the urine sample may have been 'diluted'. When interviewed on 23 April 2002 Mr Eid admitted to having used illicit drugs. He was directed to submit to a another urinalysis within the week: he failed to do so. It is understood that no further drug testing took place prior to Mr Eid being placed into custody for these matters on 1 May 2002". 22 In his remarks on sentence his Honour said that it was difficult to reconcile the account which had been given by the applicant in his evidence on 9 August 2002 with the contents of the pre-sentence report. 23 A further matter dealt with by the sentencing judge in his remarks on sentence was a submission made on behalf of the applicant that he had the support of his family and his fiancée. 24 His Honour would appear to have accepted that the applicant had the support of his family. 25 In the proceedings on sentence the applicant gave the following evidence:- "I've been on heroin for a long time. I was an addict for a period of ten years where nothing mattered but heroin. I met a girl, incredibly she turned my life around and in a way I owe my life because even though I'm in a bit of trouble right now, there is a big possibility where I would have been in a lot more trouble than what I am …" 26 In his evidence in the proceedings on sentence the applicant credited his fiancée with having been instrumental in his decision to have naltrexone implants inserted in his body. 27 His Honour noted in his remarks on sentence that the Probation and Parole officer who had prepared the pre-sentence reports had spoken to the applicant's fiancée. The applicant's fiancée was not in court for the proceeding on sentence but an explanation was given of why it had been impossible for her to attend court. 28 In his remarks on sentence his Honour noted that the applicant's fiancé still intended to marry him, when he was released from custody. His Honour then said, "the fiancée told the probation officer that the offender was not a user of illicit drugs. This is blatantly not the case". 29 His Honour continued:- "I note also that she has been unable to visit him because Corrective Services staff have barred her from doing so. If she was being genuine, in telling the probation officer that the offender was not using illicit drugs, then, it seems to me, that she was not facing the reality that was presenting to her. The other possible alternative is, that she was seeking to mislead the probation officer. I do not gain a great deal of confidence, so far as this Offender's rehabilitation is concerned, from the fact that he might receive on-going support from his fiancée". 30 His Honour concluded that the applicant's prospects of rehabilitation were poor and that there was no basis for a finding of special circumstances. 31 The only ground of appeal filed on behalf of the applicant was that the sentencing judge erred in his assessment of the relevant facts and circumstances on the issue of whether there were special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act. 32 It was submitted on behalf of the applicant that the sentencing judge had made a mistake in saying in his remarks on sentence that the applicant's fiancée had told the Probation and Parole officer who prepared the pre-sentence reports that the applicant was not a user of illicit drugs. What the Probation and Parole officer in fact said in her pre-sentence report was that she (that is the fiancée) stated that she was not a user of illicit drugs. The Crown conceded that the sentencing judge had made this mistake. 33 It was further submitted on behalf of the applicant that, on the basis of his mistaken finding about what the applicant's fiancée had told the Probation and Parole officer, his Honour had found that, either the applicant's fiancée was not facing reality or she had been seeking to mislead the Probation and Parole officer, and on either view the fiancée would not be likely to assist in any rehabilitation of the applicant. His Honour had then taken this finding into account, in concluding that the applicant's prospects of rehabilitation were poor and that there was no basis for making a finding of special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act. Furthermore, as the applicant's prospects of rehabilitation were relevant, not only to determining whether there were special circumstances within s 44(2), but were also relevant to determining what total sentence should be imposed, the exercise by his Honour of his sentencing discretion had miscarried generally. 34 In my opinion, these submissions made by counsel for the applicant are well founded and should be accepted. His Honour made a mistaken finding of fact and this mistaken finding of fact was then taken into account by his Honour in concluding that the applicant's prospects of rehabilitation were poor and the applicant's prospects of rehabilitation were relevant to both the total sentence to be imposed and whether there should be a finding of special circumstances. It is, accordingly, necessary for this Court, in the exercise of its own discretion, to determine what sentence should be imposed and in particular whether any lesser sentence should be imposed and whether it should find that there are special circumstances. 35 When this Court finds that an exercise by a primary judge of his or her sentencing discretion has miscarried and this Court has to exercise its own sentencing discretion, this Court can take into account evidence of what has happened since the original sentencing. In the present case the Court received an affidavit by the young woman who is the applicant's fiancée and she was cross-examined on her affidavit by the Crown Prosecutor. 36 In her affidavit the applicant's fiancée Fatima Ghazi said that she is twenty-three years old. She works as an administrative assistant at a public hospital. She had been addicted to cannabis and heroin but has not used any illicit drug since December 1999. She has no criminal history apart from a driving offence. 37 She met the applicant in April 2001 and became engaged to be married to him in about the middle of 2001. The wedding was fixed for 17 May 2002 but was not held because the applicant had been arrested and refused bail. 38 The applicant admitted to Ms Ghazi that he had a drug problem. She encouraged the applicant to have naltrexone implants inserted in his body, because it would not then be necessary for the applicant to take oral medication. The naltrexone implants were inserted in the applicant's body in November 2001 and April 2002. Ms Ghazi said she was disappointed and upset when the applicant told her that he was still using drugs but "I never expected him to be able to beat the habit immediately after all the years he had been using heroin". 39 In her affidavit Ms Ghazi offered explanations of why she had been barred from visiting the applicant in prison. 40 Ms Ghazi said that in late 1999 or early 2000 she had attempted to visit another prisoner, who was a boyfriend of a friend of hers. At the prison she was subjected to a pat-down search of her body, which she found "very confronting". She refused to allow a police officer to search her car. She later received a letter notifying her that she was barred from visiting prisons for twelve months. 41 In about September 2002 when Ms Ghazi was visiting the applicant she was told that there was a "red flag" against her name and that she would not be permitted to visit the applicant. 42 In late November or early December 2002 Ms Ghazi drove a car to the prison where the applicant was an inmate. She took her brother, who was to deliver a suit to the applicant. At the gate of the prison she was told by police that she would have to consent to a search of her vehicle, if she wanted to proceed into the prison. She consented to a search of the vehicle. She said in her affidavit that, unknown to her, her sister who was also in the vehicle had a small amount of cannabis in a bag in the vehicle. The bag also contained some items belonging to Ms Ghazi. When the cannabis was found by police Ms Ghazi told police that she had been unaware of the cannabis, her assertion was supported by her sister and police issued a caution to her sister. However, Ms Ghazi later received a letter from the Department of Correctional Services notifying her that she was barred from visiting Correctional Centres for twelve months. Since then Ms Ghazi has not visited the applicant but has regularly communicated with him by telephone or by letter. 43 Ms Ghazi was subjected to a testing cross-examination by the Crown Prosecutor. In cross-examination it emerged that Ms Ghazi had not been aware of the debt the applicant had owed until after the applicant was sentenced by Judge Sides, that she had not been aware of the extent to which the applicant had used illicit drugs from his release from custody on 5 September 2001 up to this year or of the extent to which results of tests of samples of the applicant's urine had been unsatisfactory. Ms Ghazi was also challenged on her evidence about why she had been barred from visiting Correctional Centres. 44 In general I formed a favourable impression of Ms Ghazi and I would be prepared to accept her evidence. I accept that it is likely that she will endeavour to influence the applicant not to use illicit drugs. 45 Earlier in this judgment I summarised the objective facts of the offence and the subjective circumstances of the applicant. I take into account the evidence given by Ms Ghazi on the hearing of this application. I take into account the relevant provisions of the Crimes (Sentencing Procedure) Act. 46 In my opinion, the total sentence of four years imposed by Judge Sides is, notwithstanding Ms Ghazi's evidence, an appropriate sentence and is the sentence which I, in the independent exercise of my own sentencing discretion, would impose. 47 The remaining question is whether there should be any finding of special circumstances. The submission on behalf of the applicant that there should be a finding of special circumstances was based squarely on the applicant's relationship with Ms Ghazi. 48 It was submitted by the Crown, with some force, that the applicant had committed the present offence, after he had met Ms Ghazi and had become engaged to be married to her and within a few days of the date set for the wedding. After meeting Ms Ghazi and becoming engaged to be married to her, the applicant had nevertheless continued to use illicit drugs and he had been less than frank in disclosing to Ms Ghazi the extent to which he was using illicit drugs or the extent to which he had failed to pass urine tests. 49 I have nevertheless formed the opinion that there should be a finding of special circumstances, on the basis of Ms Ghazi's relationship with the applicant, her intention to marry him and her intention to assist him in endeavouring to overcome his drug addiction. In particular, I accept the following matters. Ms Ghazi has experience of taking drugs herself and has overcome her own drug addiction. She was instrumental in having the naltrexone implants inserted in the applicant's body, to assist him in overcoming his addiction to heroin. She still intends to marry the applicant and communicates with him while he is in prison, as often as she can. There will be a greater prospect of her being able to assist the applicant to overcome his drug addiction, if she is living with him, than at present, when he is in custody and she communicates with him only by letter or telephone. 50 In my opinion, leave to appeal should be granted; the sentence of four years imposed by Judge Sides should be confirmed; the appeal should be allowed in respect of the non-parole period set by Judge Sides and in lieu thereof I would set a non-parole period of two years eight months commencing on 1 May 2002 and expiring on 31 December 2004. The first date on which the applicant would be eligible for release on parole would be 31 December 2004. 51 O'KEEFE J: I have read the draft of the judgment prepared in this matter by James J in which he has comprehensively set out the facts and the arguments advanced. I agree with what James J has said in that regard and adopt it. However, I am unable to agree with his conclusion and the orders proposed by him. In my opinion neither the sentence imposed, nor the non-parole period fixed, by the District Court Judge (the Judge) should be interfered with. 52 The Judge found that the offence that the applicant had committed was "a serious example of robbery". I agree. The applicant chose to deprive the victim of the car of which he had use, and which belonged to his employer. Its value far exceeded the debt that the applicant claimed was due to his drug associates. The debt was said to be five to six thousand dollars ($5,000 -$6,000). The value of the car was $26,000. It was wrecked in circumstances in which the applicant sought to avoid apprehension. A good deal of damage was done to the property of other people in addition to that done to the car of the victim. The admissions made by the applicant indicated that it was not just one car that he was supposedly being forced into stealing by his drug associates, but "cars". This does not sit well with the asserted debt and its alleged source. Nor does it bode well for the future. There is nothing to indicate that like pressure will not be applied to him in the future in respect of the very same debt that he alleges remains outstanding. The scepticism of the Judge in relation to such debt was well justified. The applicant had declined to nominate: (i) the person or persons to whom the debt was owed;