R v DERBAS [2003] NSWCCA 44

New South Wales Court of Criminal Appeal

CITATION : R v DERBAS [2003] NSWCCA 44 HEARING DATE(S) : 19 February 2003 JUDGMENT DATE : 5 March 2003

JUDGMENT OF : Hulme J at 1; Bell J at 42; Shaw J at 43 DECISION : Leave to appeal granted; Appeal dismissed

PARTIES : Regina Shadi DERBAS FILE NUMBER(S) : CCA 60181 of 2002 COUNSEL : Crown: DML Woodburne Appellant: SJ Odgers SC SOLICITORS : Crown: SE O'Connor Appellant: Murphy's Lawyers

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0067 FILE NUMBER(S) : LOWER COURT Blanch CJDC JUDICIAL OFFICER :

- 12 - IN THE COURT OF CRIMINAL APPEAL 60181/02

HULME J BELL J SHAW J

Wednesday 5 March 2003 R v Shadi DERBAS Judgment 1 HULME J: This Applicant for leave to appeal pleaded guilty to a charge:- For that he on or about 17 July 1998 at Punchbowl in the State of New South Wales did tamper with and dispose of a motor vehicle… with intent to hinder the discovery of evidence concerning a serious indictable offence committed by another person. 2 On 26 March 2002 Justice Blanch, Chief Judge of the District Court sentenced the Applicant to imprisonment for 5 years including a non-parole period of 3 years, both such periods to commence on 11 July 2001. The offence charged arises under Section 315(1)(b) of the Crimes Act and carries a maximum penalty of 7 years imprisonment. 3 The essential ingredients of, and which led to, the Applicant's offending were as follows. The Applicant had stopped a car he was driving at traffic lights outside the Five Dock hotel. Two persons were having an argument on the footpath with a third person attempting to mediate. There were verbal exchanges between a Mr Rossini, one of the occupants of the car driven by the Applicant, and one or more of the persons on the footpath. One of the persons on the footpath began fighting with Mr Rossini who then alighted from the car. A second passenger then alighted and fired shots from a .22 calibre revolver fatally wounding two of the persons on the footpath and wounding, but not as seriously, the third. 4 The person who fired the shots re-entered the car and, after some difficulty, Rossini did also. The Applicant drove off. When he arrived at his home he was informed that his car had come up on a scanner which someone was presumably using to access police messages. The Applicant then directed two persons present to go to the ends of the street to look for police and ordered that the car be moved under the carport so it could not be seen by helicopters. Once the car was under the carport the Applicant said "I can't lose the car. We'll degrease it to get rid of fingerprints and saliva". He then directed one of his associates to procure degreaser and then the car was sprayed and wiped down inside and out as directed by the Applicant. 5 On the Applicant's instructions there was some tampering with the ignition steering lock and door locks in an attempt to make the car look as though it had been stolen and then on the instructions of the Applicant the vehicle was driven to Roselands, left there and reported as stolen. Another person was despatched to chauffeur back the person who had been given the task of taking the car to Roselands. As a result of the cleansing of the car, the police were unable to obtain any fingerprints or DNA material from the vehicle and no arrests were made until 17 September 1999 after information was received from Mr Rossini. 6 Originally the Applicant was charged with being an accessory after the fact to murder but that charge was dropped and that to which he pleaded guilty instigated in February 2001. A trial was fixed for 3 December 2001 and it was on that day that the Applicant indicated he would plead guilty. Prior to that there had been some indication he was considering his position. Blanch J observed that the involvement of others would have created difficulties for the Applicant to plead guilty early and said that there should be a discount for his plea not only for the saving of court time or willingness to facilitate the course of justice "but also because the plea can be taken as an expression of his contrition". 7 His Honour also took into account the fact that in the incarceration which the Applicant had endured prior to sentence he had been in a "one out cell" with consequent hardship and loss of benefits. The Applicant had been in custody since 2 August 2000. Some of that period His Honour attributed to the commission of other offences for which the Applicant had been sentenced but by backdating the sentence to commence on 11 July 2001 gave the Applicant credit for 8 months and 15 days imprisonment prior to sentence. It was in light of the totality of the Applicant's custody that His Honour found special circumstances and reduced the non-parole period below the statutory ratio. 8 The Applicant was born in 1973, is married and has an infant. Blanch DCJ recorded he has the support of his immediate and extended family, that his school reports were positive and background reports would support a finding he was living a reasonably respectable life, had settled down and was working. His Honour recorded that a pre-sentence report – prepared in July 2001 in consequence of the charge of possession of a firearm without a licence indicated that the Applicant was "significantly a victim in many ways" in respect of the matter for which he stood for sentence. His Honour concluded that the Applicant had "got into the trouble that he is in in this case because of a sense of misguided loyalty to his friends". His Honour recorded also that the background reports gave some real hope that when the Applicant was released from custody, he had the capacity to not re-offend. 9 In this Court a number of matters were advanced on behalf of the Applicant. It was accepted that the offences the investigation of which was hindered were about as serious as possible but it was submitted that the Applicant's conduct should be considered also in light of the fact that there was other evidence available to the police and indeed sufficient to result in the person who fired the shots being convicted of murder in respect of the deaths which ensued. It was submitted that "the course of justice was not significantly affected by the Applicant's actions … while the police investigation may have been hindered to some extent, the course of justice was not". 10 It was pointed out to counsel during the course of argument that there was no evidence which would permit any real judgment as to the significance of the Applicant's conduct. In consequence it was agreed that the Court could have access to the remarks on sentence of Greg James J when he sentenced the person who had fired the shots. His Honour's reasons make it apparent that the Crown case linking that person with the shooting depended largely on the evidence of Mr Rossini and that the defence case included suggestions that it was Mr Rossini who was responsible for the shooting and evidence that the Accused before Greg James J was elsewhere at the time of the shooting. 11 In these circumstances it is not of any significant weight that eventually the principal offender was prosecuted to conviction. It is a reasonable, if not a strong, possibility that had the Applicant not taken the steps he did, DNA, fingerprint or other evidence would have been available to assist the authorities firstly, in proving the Accused before Greg James J was in the car at about the time, secondly, in at least knowing who was in the car, thirdly, in apprehending one or more of them and fourthly, in seeking evidence such as clothing or gunshot residue. Such residue could possibly have put the identity of the person who fired the shots beyond the possibility of reasonable argument. As it was, the conviction for the shooting would seem to have depended on the fortuitous circumstance that, somehow or other, Mr Rossini came forward. 12 Furthermore, it is a reasonable inference that the conviction before Geg James J will in due course be challenged in this Court. Given that, inter alia, the transcript of proceedings before Greg James J is not before this Court, I am obviously in no position to form any judgment on whether any such challenge will or is likely to succeed but it certainly cannot be said that a conviction which depends largely on the evidence of another person involved in the fight and on the same side as the Accused, is impregnable from attack, a fortiori if, as the Court was informed, that person had the benefit of an indemnity from the Crown. 13 In making the remarks I have, I do not forget that, apparently, Mr Rossini and the Accused before Greg James J left, no doubt unintentionally, mobile phones at the scene. However there was nothing before this Court to suggest that the phones were registered to them or otherwise provided proof of their identity. 14 A second point advanced was that: "The sentencing Judge failed properly to take into account the stressful circumstances in which the Applicant found himself through no fault of his own… It is likely that the Applicant would have been traumatised by the incident and fearful that his presence at the scene might implicate him in the shootings." 15 I can accept that the circumstances are likely to have been stressful and there is nothing to suggest that the Applicant had any warning of what was to occur. However, he gave no evidence during the sentencing proceedings. There is no evidence of what his knowledge or belief was on the topic of whether those in the vehicle with him were or were not aggressive, inclined to be provocative, violent or carried weapons. Absent such evidence one would not be justified in concluding that the stressful circumstances in which the Applicant found himself were "through no fault of his own". 16 The suggestion that "it is likely that the Applicant would have been traumatised" is also unsupported by the evidence of the person in the best position to know, viz. the Applicant, and the presence of mind apparent in the thoroughness with which he attended to the tasks of cleaning, and otherwise distancing himself and his associates from, the vehicle. 17 It was next submitted that the sentencing judge failed properly to take into account the fact that the offence was committed on the spur of the moment. Certainly there was no substantial premeditation. On the other hand the Applicant's offending was not momentary. The activities to which I have just referred and detailed earlier in these Reasons involved the organisation of a number of other persons and must have taken an appreciable amount of time. In any event Blanch J's account of the circumstances of the Applicant's offending makes it impossible to accept that his Honour was not fully conscious of the absence of premeditation. 18 It was said that the sentencing Judge failed properly to take into account the motivations of the Applicant. The only direct evidence of this was the Applicant's statement "I can't lose the car. We'll degrease it to get rid of fingerprints and saliva" although it is a legitimate inference that he was also concerned to avoid either his acquaintances or himself being implicated in the shooting. Once regard is had to the conduct and evil against which s315 is directed, a topic to which I refer in more detail below, I do not regard any of these motivations as significantly mitigating his offence. 19 It was further submitted that a reference by his Honour to the offence falling "towards the top end of the scale" is indicative of error. It was submitted that if His Honour was saying that absent subjective considerations, the offence justified the maximum penalty, the matters to which I have referred show that the offence did not. On the other hand if His Honour was indicating by the word "towards" that the maximum penalty was not justified, the sentence imposed was manifestly excessive once one had regard to the subjective considerations. 20 So far as the subjective considerations are concerned, attention was drawn to the following matters:- 1. The plea of guilty. 2. Blanch DCJ's statement that "there should be a discount for his plea, not only for the saving of Court time … but also because the plea can be taken as an expression of contrition. 3. Blanch DCJ's statement that the Applicant was "in a difficult position" so far as pleading to the charges (is) concerned. 4. The Applicant's criminal record was only minor. 5. The Judge's finding that the offence was committed out of a "sense of misguided loyalty". 6. What was said to be acceptance by Blanch DCJ "that the Applicant's prospects of rehabilitation are good". 7. That the conditions of the Applicant's imprisonment are unusually severe. 21 I shall attempt to deal with these matters seriatim. The plea was given on the morning fixed for the trial. Thus it did not justify a discount for its utilitarian value other than one at or close to the lower end of the appropriate range. The fact that the Applicant may have been considering his position prior to that is irrelevant to the plea's utilitarian value. 22 The statement that the plea "can be taken as an expression of contrition" is in my view an error by Blanch J favourable to the Applicant. In Holloway v McFeeters (1956) 94 CLR 470 at 477, Dixon CJ pointed out that "an inference may be made only as the most probable deduction from the established facts, (and) it must at least be a deduction which may reasonably be drawn from them." Elementary rules of logic and legal reasoning do not disappear just because the particular proceedings require judges to impose sentences. 23 A plea of guilty is consistent with contrition. It may be inspired by contrition. But it may also be only the result of a desire to obtain the benefit of the discount in sentence normally given for such a plea. It may be inspired by other factors. It may be inspired by a combination of these. But when a plea of guilty is entered only when, or shortly before, a trial is due to commence, it seems to me impossible in the absence of other evidence pointing towards contrition, to infer, as more probable than not, that contrition is one of the factors that has inspired the plea. Here there were no other evidence. 24 The fact that the Applicant may have been in a difficult position – because pleading guilty would have been an indication of acceptance of guilt on the part of his friends or associates – is irrelevant so far as the utilitarian value of the plea is concerned. It may be an explanation why, consistently with contrition, the plea was not entered earlier but does not argue for any finding of contrition or in any other way for a lighter, rather than a heavier sentence. Indeed, although in this Court I would not be disposed to draw any positive conclusion to this effect, sticking to his friends may indicate that the Applicant's values vis-a vis the law and society were, at the time, still not what they should have been. 25 The Applicant's record was not minor or one which argued for any leniency. He was born in April 1973. In or before April 1991 he committed offences described on the antecedent report as "unlic(enced) driver" and "state false name and abode". In or before March 1993 he committed the offences of stealing a motor vehicle and possessing implements (for housebreaking or other illegal activity). 26 Other offences on his record were subsequent to the commission of the offence for which he was being sentenced but they were no less relevant as indicating his attitude to the law and his prospects of rehabilitation. On 29 October 1998 he was charged with, and in due course convicted of, having goods reasonably suspected of being stolen in or on premises. In January 1999 he was charged with, and in due course convicted of, 2 counts of having personal custody of goods reasonably suspected of being stolen. An appeal resulted in the compensation which the Applicant had been ordered to pay, being reduced to $7,000. In August 2000 he was charged with, and in due course convicted of, unauthorised possession of a firearm and ammunition. For the first of these offences he was sentenced to imprisonment for 3 years with a non-parole period of 14 months, both periods commencing on 2 August 2000. 27 Nor do I see in Blanch J's finding that the offence was committed out of "a sense of misguided loyalty", anything which significantly mitigates the seriousness of the Applicant's offence. In that regard it is appropriate to consider the terms of the statutory provision against which the Applicant offended. So far as is relevant they are:- 315(1) A person who does anything intending in any way to hinder: (a) the investigation of a serious indictable offence committed by another person, or (b) the discovery of evidence concerning a serious indictable offence committed by another person, or (c) the apprehension of another person who has committed a serious indictable offence. is liable to imprisonment for 7 years. (3) It is not an offence against this section merely to refuse or fail to divulge information or produce evidence. 28 Although undoubtedly there will be some who commit offences under the section for reward or because of threats or because of some mere antipathy towards authority, many offenders will be those who are motivated by some feeling of loyalty to "another person" who has committed a serious indictable offence. Such conduct and motivation is part of the evil or undesirable conduct against which the section is directed and although a motivation of reward may be thought to be more deserving of censure, the need for general deterrence of offenders motivated by loyalty is likely to be greater. 29 So far as the Applicant's prospects of rehabilitation are concerned, Blanch J did not say that they were "good". What his Honour said was:- "The background reports do give some real hope that when he is released from custody he has the capacity to settle down in the community and not commit any further offences. He certainly demonstrated that sort of capacity in the past and he has the sort of support that he will require to do that in the future. Those matters become relevant also when assessing the non-parole period which is to be fixed. … " 30 Thus nothing has been shown to suggest that Blanch J erred unfavourably to the Applicant in the weight his Honour gave to the Applicant's subjective circumstances. Did his Honour err otherwise in his reference to the offence being "towards the top end of the scale"? In my view he did not, at least in a way which is unfavourable to the Applicant. There was the magnitude of the serious indictable offences to which the Applicant's conduct related. There was the magnitude of his efforts in hindering. There was the success of those efforts in the sense that the Police apparently were deprived of any evidence from the vehicle about its occupants. Counsel for the Applicant suggested that a worst case, or at least one worse than the Applicant's was one which would have included premeditation and/or hindering in return for reward. I agree that those factors would tend to aggravate an offence. However, I am by no means satisfied that the Applicant's offence did not come within a worst category so as to render him liable to the maximum penalty for which Parliament has provided. Certainly, Blanch J did not exaggerate when he described the Applicant's offence as "towards the top end of the scale". Nor, if his Honour was indicating that the offence was not "at" the top of the scale, does it seem to me that the sentence was manifestly excessive once one had regard to the Applicant's plea and the other subjective considerations. These were not strong. 31 It was however submitted that the Judicial Commission statistics (from July 1995 to June 2002) showed that the sentence was excessive. These showed that of 14 offenders against s315(1)(a), 5 offenders against s315(1)(b), and 1 against s315 (1)(c), not one had been sent to prison. Of 19 offenders convicted of being an accessory after the fact to murder – an offence which carries a maximum penalty of 25 years imprisonment, 3 had been sentenced to periodic detention and only 9 had been sent to prison. Of these 9, 7 had sentences of 3 years or less imposed on them, one was sentenced to 4½ years and one to 8 years imprisonment. The highest sentence imposed after a plea of guilty was that of 4½ years. 32 The Court was not provided with details of any of these offenders or of their offences but, given that there is, while not a large, a reasonable number of offenders reflected in the figures, it was submitted that the statistics argue for an appreciably lower penalty than Blanch J imposed. Of course some of the offences, particularly those against s315(1) may have been relatively minor offences of their type but being an accessory after the fact to murder normally involves substantial criminality. 33 On the other hand the place of such statistics must be recognised. In the first place they tend to be self perpetuating in that as soon as the first few cases suggest a particular figure or range, other judges are urged and there is a tendency to follow that figure or range. If that early figure or range is wrong, the fact that it is later often followed does not make it right. Secondly, the statistics in the main reflect the decisions of first instance judges and while there is authority that their decisions must be regarded with respect – Ferrer-Esis (1991) 55 A Crim R 231 at 237; Griffiths v R (1976-1977) 137 CLR 293 at 310 (although it seems to me that Barwick CJ was directing attention to the circumstances of individual cases rather than to patterns or general standards) - for this Court to simply follow patterns of sentencing in the District Court is, as has been submitted in the past, "to allow the tail to wag the dog". The number of cases which come before this Court, the extent of argument and consideration of principle which occurs, places it in a better position to determine proper standards of sentencing than the judges of the District Court, whose decisions are often made quickly and in the course of a busy case schedule. 34 Thirdly, the statistics but represent the application by other judges, rightly or wrongly, to particular offenders and fact situations which come before them. It seems to me far preferable in this Court to consider the proper sentence in a particular case in the light of the statutory provision and the established principles of sentencing. The statistics provide a check, but they should not be allowed to govern the process. As to limitations on their use, see R v Bloomfield (1998) 44 NSWLR at 734; R v AEM Snr, KEM, MM [2002] NSWCCA 58 at [116]. 35 Fourthly, in that the statistics in relation to offenders against s315 suggest that the appropriate penalty for an offence against the section is a punishment which does not include imprisonment, - a nonsense in the case of the Applicant – those statistics are of no assistance whatsoever. In this case none of the statistics persuade me that the decision of Blanch J was manifestly excessive. 36 The Court's attention was also directed to sentences imposed on 2 persons said to be co-offenders. It was submitted that one of these sentences provided an indication that the sentence imposed by Blanch J was wrong and by reference to the second, it was submitted that the principle of parity required that the sentence imposed by Blanch J be reduced. One of these cases was the decision of Backhouse DCJ in R v Naseam El-Zeyat (5 October 2001). The charge against El-Zeyat was not materially different from that with which the Applicant was charged, El-Zeyat's involvement having been apparently as one of 2 persons who, under the Applicant's direction, degreased the car and then drove to Roselands to bring the driver dumping the Applicant's car back. El-Zeyat was almost 18 at the time and had virtually no employment record. He did, however have a moderate criminal record, including assaulting a police officer in the execution of his duty, carrying a cutting weapon, driving a conveyance without the consent of its owner and some undescribed offence for which, at the time of sentence before Backhouse DCJ, he was serving a period of imprisonment which had about 4 months to run. Her Honour, after saying that there was a need for general deterrence for offences of that kind, and that El-Zeyat's offence was a serious one, sentenced him to imprisonment for 12 months including a 6 months non-parole period, directing that the periods commence at or about the time of her sentence. Her Honour thus imposed an effective custodial sentence of an extra 2 months. 37 An appeal by El-Zeyat to this Court against his conviction was allowed for reasons of no present relevance. Hence the case does not raise issues of parity but, as has been said, it was relied on as an indication that a much lower sentence on the Applicant was appropriate. My response to that is that I just find her Honour's sentence incomprehensible as a proper reflection of s315 and the fundamental principles of sentencing. It is impossible to reconcile her Honour's remarks about the need for general deterrence with the sentence she imposed. It is also the sort of sentence which demonstrates that too much reliance should never be placed on the Judicial Commission statistics in which, but for the successful appeal, the sentence would presumably at some time have figured. 38 The second decision to which the Court's attention was directed was the sentencing by Blanch J on 27 March 2002 in R v Mohamed Rustom. His offence was, with intent to pervert the course of justice, informing police that Mr Derbas' car had been stolen. The offence was against s319 of the Crimes Act and carried a maximum penalty of 14 years imprisonment. 39 According to the remarks on sentence of Blanch J, Mr Rustom was telephoned by his friends and told "if the police come around, tell them the car has been stolen." and had no greater degree of knowledge. His Honour described the offence as one falling at the bottom of the scale and having regard to a period of almost 4 months Mr Rustom had spent in jail, imposed a 3 year good behaviour bond. 40 The circumstances of Mr Rustom's offence are so different from those of the Applicant that no issue of parity arises. 41 Thus I see no basis for concluding that the sentence imposed on the Applicant was manifestly excessive. Given the length of the sentence, I would grant leave to appeal, but I would dismiss the appeal. 42 BELL J: I agree with Hulme J. For my part I do not join in the criticism of the approach taken by the judge to the sentencing of the juvenile offender Naseam El-Zeyat. Although dealt with according to law, he was a juvenile at the date of the commission of the offence. It was not part of the Crown case that El-Zeyat was aware of the nature of the serious indictable offence in respect of which he hindered the discovery of evidence. 43 SHAW J: I agree with Hulme J. **********