Regina v Makhoul [2004] NSWCCA 275

New South Wales Court of Criminal Appeal

CITATION : Regina v Makhoul [2004] NSWCCA 275 HEARING DATE(S) : 10/08/04 JUDGMENT DATE : 10 August 2004

JUDGMENT OF : James J at 1; Adams J at 34; Bell J at 35 DECISION : Leave to appeal against sentence granted - appeal against sentence dismissed

LEGISLATION CITED : Crimes Act Crimes (Sentencing Procedure) Act GAS v The Queen [2004] HCA 22 R v Fordham (1997) 98 A Crim R 359 CASES CITED : R v Girard [2004] NSWCCA 170 R v Henry (1999) 46 NSWLR 346 R v Postiglione (1997) 189 CLR 295 PARTIES : Regina v Tarek Makhoul FILE NUMBER(S) : CCA 2004/1753 CCAP (60147/04) COUNSEL : In Person - Applicant G Rowling - Crown SOLICITORS : - S Kavanagh - Crown

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0475 FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60147/04 JAMES J ADAMS J BELL J 10 AUGUST 2004 REGINA v TAREK MAKHOUL Judgment 1 JAMES J: Tarek Makhoul has applied for leave to appeal against a sentence imposed on him in the District Court on 19 August 2003 by her Honour Judge Hock, after a jury had found him guilty on one charge of robbery whilst armed with an offensive weapon, being a knife. Armed robbery is an offence under s 97(1) of the Crimes Act for which the maximum penalty is imprisonment for twenty years. For the offence of armed robbery Judge Hock sentenced the applicant to a term of imprisonment for five years with a non-parole period of two years six months commencing on 17 September 2003. 2 On 19 August 2003 Judge Hock also sentenced the applicant for an offence of receiving committed in 1998, to which the applicant had pleaded guilty. For this offence her Honour sentenced the applicant to a fixed term of imprisonment of ten months commencing on 17 May 2003. The applicant had been remanded in custody after the jury returned its verdict of guilty on the armed robbery charge on 23 May 2003 and her Honour, in making the sentence for the offence of receiving commence from 17 May 2003, also took into account a discrete period of six days of pre-sentence custody. In this application no challenge has been made to the sentence for receiving. It will be noted her Honour structured the sentences she imposed so as to make the sentence for armed robbery partly cumulative on the sentence for receiving, to the extent of four months. 3 The applicant was legally represented at the trial and was also legally represented in the proceedings on sentence. However, he has appeared for himself in this application for leave to appeal against sentence. 4 In her remarks on sentence Judge Hock stated the facts of the offence of armed robbery in a way which has not been the subject of any criticism by the applicant on this application. Her Honour said: "The facts giving rise to the first offence are that on 16 September 1999, the owner of Little Bay Cellars, a Mr Thomas Bamborough, was working alone in his store. At about 7.45pm, having no customers, he walked to the front door and looked out. He saw two figures about twenty metres away, both of whom were putting something on their heads. Mr Bamborough went back inside and a few seconds later he was confronted by two people, one of whom was the offender, who was wearing a balaclava and gloves and was holding a knife approximately 30 centimetres long. The offender told Mr Bamborough to give him the money. When he heard the voice, the victim recognised it as that of a regular customer. The offender prodded Mr Bamborough several times with the knife and demanded that he open the till which he did. The offender took all the notes out of the till, between $150 to $250 and put the tray containing the coins on the floor. A short time later, Ms Cheryl Blackburn arrived at the door of the shop to find it closed. Ms Blackburn had previously left to do a delivery for Mr Bamborough and had in fact left her young daughter to be minded by him. Ms Blackburn heard the offender say 'No we are closed'. Shortly after, the door opened and the two offenders ran off along Anzac Parade. Mr Bamborough ran outside and in anger threw a bottle of wine at the departing figures. The offender had, by this stage, removed his balaclava and when the bottle smashed he turned. Both Mr Bamborough and Ms Blackburn recognised him. The police were notified and at 2.30am on 17 September 1999 they attended the offender's unit but did not locate him. On 30 September 1999, police officers saw both offenders at a bus stop and they were arrested". 5 Her Honour commented as follows about the version of events which the applicant had unsuccessfully advanced at the trial: "During the trial there was no issue that the offender did indeed enter the liquor shop. The offender gave evidence that Mr Bamborough owed him money for alcohol he (the accused) had provided to him and mounted a defence of a claim of right. He denied he used a knife. Clearly the jury did not accept his version". 6 Having regard to the nature of the application for leave to appeal and the ground relied upon by the applicant, it is unnecessary to refer to the facts of the receiving offence. 7 In her remarks on sentence Judge Hock referred to the subjective circumstances of the applicant. He was born on 27 July 1966 and was, accordingly, thirty-seven years old at the time he was sentenced. He was born in Kuwait and came to Australia at the age of four. His father was authoritarian and physically aggressive. The applicant left school in Year 11 and was generally in employment as a machine operator until 1997. From 1997 he had been unemployed due to his increasing use of illicit drugs. He had begun using illicit drugs while still at school and by the age of twenty-four was using heroin on a daily basis. 8 In 1999, after he had been arrested and released on bail on the receiving charge, the applicant went to Lebanon and completed a drug rehabilitation programme there. He returned to Sydney in 2001 and was arrested at the airport. Her Honour accepted the applicant's evidence given in the proceedings on sentence that he had intended, on his return to Australia, to surrender to the authorities, in any event. After being in custody for six days the applicant was released on bail. While on bail he underwent a lengthy course of treatment for opiate dependency. Her Honour considered that the applicant's prospects of rehabilitation were reasonable, provided the applicant could adhere strictly to a rehabilitation programme. 9 In her remarks on sentence her Honour said that the offence of armed robbery committed by the appellant fell broadly within the common class of case described by the Chief Justice in para 162 of his Honour's judgment in R v Henry (1999) 46 NSWLR 346, the guideline decision for sentences for the offence of armed robbery - for which the Chief Justice said a sentence should generally fall between four and five years for the full term. However, the offence committed by the applicant was worse in some respects than the common class of case described in R v Henry , because the applicant was not a young offender with little or no criminal history and the applicant had not pleaded guilty. In addition, there were the circumstances of aggravation that the offence had been committed while in company and that at the time of committing the offence the appellant had been on conditional liberty, being on bail on the charge of receiving. 10 Her Honour took into account the delay which had occurred in completing the criminal prosecution of the applicant, while noting that much of the delay had been caused by the applicant's own conduct in going to Lebanon for two years. Her Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act on the basis of the partial accumulation of the sentences she was imposing and that the applicant would benefit from an extended period of supervision on parole. 11 In written submissions prepared by himself the applicant raised four grounds of appeal against the sentence for armed robbery. I will deal with these grounds in turn.