New South Wales Court of Criminal Appeal CITATION : Regina v Elfar [2003] NSWCCA 358 HEARING DATE(S) : 02/12/03 JUDGMENT DATE : 2 December 2003 JUDGMENT OF : Ipp JA at 37; Whealy J at 1; Davidson AJ at 38 DECISION : Appeal dismissed R v Qutami (2001) 127 A Crim R 369 CASES CITED : R v McGourty [2002] NSWCCA 335 R v Palu (2002) 134 A Crim R 174 at 185 PARTIES : Regina v Andrew Salim ELFAR FILE NUMBER(S) : CCA 60390/03 COUNSEL : Mr M. Grogan - Applicant Mr J. Stratton SC - Respondent SOLICITORS : Mr C. K. Smith - DPP Ms B. Duchen - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0270 FILE NUMBER(S) : LOWER COURT Shillington ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60390/03 IPP JA WHEALY J DAVIDSON AJ TUESDAY 2 December 2003 REGINA v Andrew Salim ELFAR Judgment 1 WHEALY J: This is a Crown appeal against a sentence imposed by his Honour Acting Judge Shillington QC at the District Court, Sydney on 22 August 2003. 2 On 1 April 2003 the respondent pleaded guilty to the following charge: That he between 23 November 2001 and 2 August 2002 at Sydney in the State of New South Wales did conspire with George Elfar and diverse others to dispose of stolen property, to wit, motor vehicles and other property, the property of diverse owners, before then stolen, the stealing of which amounted to a serious indictable offence, knowing the same to have been stolen. 3 The maximum penalty for the substantive offence, the commission of which was the object of the conspiracy, is twelve years' imprisonment. The conspiracy involved a large scale "re-birthing" of stolen vehicles in order that they could be sold overseas. 4 On 22 August 2003 at the Sydney District Court, the respondent was sentenced to imprisonment for three years and six months commencing on 1 August 2002 with a non-parole period of eighteen months expiring on 31 January 2004. 5 An appeal was lodged by the Director of Public Prosecutions on 25 September 2003. 6 At the sentence hearing, the sentencing judge had before him a statement of the facts relied upon by the prosecution. This contained full details of the telephone intercepts and of other evidence relevant to the proceedings. Secondly, there was material to show that the respondent had no relevant prior criminal history. Thirdly, there was a Probation and Parole Service pre-sentence report dated 4 June 2003. This provided the court with a number of sentencing options available to the sentencing judge if he saw fit to use them. 7 This report also contained a brief mention of the respondent's upbringing and his family situation. It referred to the fact that when the respondent had been in his first year at the University of Western Sydney, his father had directed him to cease studying and required him to assist in his smash repair workshop. There was also reference in this report to the respondent's statements to the parole officer that his role in the offence had been to disassemble the motor vehicles and run any errands that his father directed him to do. Further, the report referred to statements by members of his family that the respondent had been frightened of his father. Apparently there had been a number of attempts by him to leave home and cease working for his father but these had been unsuccessful. 8 These themes were taken up in a letter written by the respondent to the sentencing judge dated 30 July 2003. The letter is relatively brief and I shall quote part of it: "I was a student at the University of Western Sydney enrolled in Bachelor of Business Administration and Operations Management. My expectations to obtain a degree and ultimately have the opportunity to work in this field, was immediately put to an end. The cause of which was my father. My father is an adamant and repressive man, who's bricklike and ironfist approach resulted in me running away from home on three different occasions and forced me to suspend my studies indifinitely. My social life was mostly spent at home with my mother and younger siblings. My father, forced me in working for him, a job I detested. All the while hoping of resuming my education, but my ambitions were always oppressed. I'm the eldest of three children, I have a very close attachment with both my brother and sister, also equally the same with my mother. I care about the three of them very much. They were the reason why I persevered with my father and his autocratic manner. I always chose not to argue with my father, that assured me that I was free from being clobbered or verbally abused. Your honor, all the while I was in the opinion whilst working for my father, no matter what doubt I had, I convinced myself that father's don't lead their children astray. However I was proven wrong and found myself being incarcerated. Time eventually made me realize that what I had done was unacceptable, and I was nothing but a scape goat for my father. While he escaped punishment, I'm being imputated for his unpleasant practice." 9 The letter goes on to contain an apology to the community and to his family for what he had done. 10 There were two psychological reports. The second of these was from Anna Robilliard. It was provided by her after she had interviewed the respondent at Long Bay Gaol on 10 July and tested him on the following day. The results of the tests placed the respondent in the average range in relation to his intelligence. His personality was described as "depressed". In relation to his relationships with other people, the report found that he was a person who would have difficulty asserting himself against others; and as a person who had an empathic and trusting disposition. 11 Ms Robilliard took a history from the respondent. This revealed the background that the respondent's father had been imprisoned on charges involving like offences to the present when the respondent had been a youth. After the commission of these offences, the father had in fact, remained abroad in Jordan but eventually came home to face the penalty which was subsequently imposed on him by a New South Wales court. The father was sentenced to a minimum term of four years' imprisonment. He was ultimately released from prison when the respondent was in Year 11. The family then rented a property at Horsley Park and the respondent's father told his family that he was now making a living "buying and selling cars". It seems apparent, however, that, after release from prison, the respondent's father soon went back into the illegal enterprise of re-birthing cars for transport to Jordan and elsewhere. 12 A young male cousin who was then aged about twenty had been living with the family at Horsley Park at the time. He had been assisting the respondent's father with his illegal business. In the middle of 2001, when the respondent was about to finish his first term in a business course at the University of Western Sydney, his cousin's visa expired and he was then deported. At that point, the respondent's father insisted that his son join him in the criminal business enterprise. From the beginning of 2002, according to this history, the respondent admitted to working full time for his father. He said that his father always told him what to do. This involved driving cars, dropping them off to clients, stripping cars and collecting money. He said that he was never paid a salary, although his father would give him "a couple of hundred dollars every now and then." 13 In this history the respondent described a difficult relationship with his father. The respondent described his father as a very aggressive man who would, on occasions, beat him physically. 14 In June 2002 the respondent and his father went to Jordan. Eventually, the respondent returned to Australia but his father did not. The respondent was arrested shortly after he arrived back in Australia and has remained in prison ever since. His father has never returned to Australia. Nor, it seems, does he intend to do so. 15 In conclusion Ms Robilliard said: "Andrew did not attempt to blame anyone for his offences although understandably he has a very negative opinion of his father and no longer wishes to be known as George Elfar's son. He appears to be doing his best to make constructive use of his time in custody and plans to enquire about the possibility of continuing his studies by correspondence. He has constructive goals for his future and has the positive attributes of sound intelligence and disposition." 16 There was an earlier report from a clinical psychologist, Terry Smith. This report repeated, in greater detail, the history of the relationship between the respondent and his father with a particular emphasis on the violence perpetuated on the respondent from time to time throughout their relationship. At page 2 the following appears: "In October 2001 Mr Elfar said his father demanded he "learn the trade because he had no-one he could really trust…my cousin was sent back to Jordan and my father wanted a person who would do what he said and not ask questions…I knew then it was a stolen car racket…he taught me to strip cars and if I refused then I knew I was in real trouble…if you knew my father then you would know not to go against him or his wishes…our custom is very strong with loyalty to the family…it was not possible for me to go to the police…I got fed up with him and three times I left home and went to my grandmother's…he came and got me, slapped my face, locked me in my room and then forced me back to work." 17 The respondent expressed his contrition and remorse for his involvement in the criminal enterprise to Mr Smith on a number of occasions and these statements are recorded in the report. In his conclusion Mr Smith said: "The prognosis of Mr Elfar seems to be for his own choosing. To date he has not had the opportunity to develop an adult path. He argues that had his life been determined by himself then he would still be living with his family and completing a university course. He feels that with the absence of his father from his life coupled with family support and his own ambitions he will be in the position to constructively build any lifestyle he so chooses. He has adequate insight, personal adjustment and self controls to manage his affairs. He has the ambition to return to his studies and to develop a career in business. The experience of being incarcerated has profoundly impacted on him. Thus, all the ingredients are present for him to live a positive lifestyle. The question arises as to his susceptibility to his father's influence should he re-contact him. At present he seems to be son incensed with the consequences of his father's involvement in the family's life that some confidence is had about his ability to resist his demands." 18 There is no need for me to detail other favourable material placed before the sentencing judge as it is mentioned in his remarks on sentence. I turn now to those remarks. 19 His Honour found that the Crown statement of facts disclosed a large criminal conspiracy involving the theft of motor vehicles and their re-birthing and subsequent sale in Australia and overseas, in particular in Jordan and Lebanon. His Honour described the details of the conspiracy and said that the value of stolen motor vehicles involved somewhere in the vicinity of $1.229 million. As to the respondent's involvement in the conspiracy, his Honour said that the telephone intercepts suggested that the respondent was an active and responsible member of the criminal group. His Honour also noted that if important decisions had to be made the respondent turned to his father, George Elfar, for instructions. 20 The sentencing judge then recounted the respondent's subjective circumstances. He referred to the absence of prior convictions, the respondent's youthfulness, the fact he was eighteen at the time of the offence; and the fact that he was required by his father to leave university in 2001 and assist his father in the criminal activity. He referred to the respondent's letter which had been placed before the court and summarised its contents. He referred also to the psychological reports and briefly to their conclusions. He said that the reports confirmed "the history of the respondent". 21 His Honour then referred to references which had been received from the President of the Australian Jordanian Society and the Anglican chaplain at Long Bay. After considering these matters his Honour said this: "His solicitor, Ms Duchen, submits that he deserves a full discount of his sentence, bearing in mind his early plea of guilty, the likely length and expensive trial if a not guilty plea had been entered. She also points to his youth. He was 18 years of age when he first became involved in this offence and 19 when he was arrested after his return from Jordan. Secondly, that his criminal activity was due to the duress of his father. I see no reason, in that regard, that should not be accepted. I have received his father's antecedents which are significant. Thirdly, that this is his first time in prison. Fourthly, his good prospects for rehabilitation. Fifthy, his mother is now on a pension living in this country and she, in the absence of her husband overseas, has been placed under additional financial pressure which, if the prisoner were able, would, he says, be able to make some attempt to assist. He is serving his sentence under protection because of threats of blackmail and I have taken all of these matters into account. I have taken into account his age, which I regard as significant, and I find there are, in that regard, special circumstances. He has been in custody since 1 August of last year. The sentence which I impose is one of three and a half years imprisonment with a non-parole period of 18 months which is to date from 1 August 2002. Due to special circumstances, his date for release on bail will commence from 21 January 2004." 22 It seems to me his Honour's decision was probably not correctly transcribed. It should refer to 31 January 2004. I have no doubt his Honour said the respondent would be eligible to be released to parole on that date, rather than the reference to bail referred to in a written document. Nothing turns on the error in the transcription. 23 I turn now to consider the Crown submissions. The Crown has emphasised that the conspiracy to which the respondent admitted being a participant involved property valued in excess of $1.2 million. The conspiracy was active, so far as the respondent's involvement was concerned, for about eight to nine months. Secondly, the Crown emphasised it was a matter of significant criminality. With that submission I would respectfully agree entirely. It is apparent from the remarks on sentence, the Crown said, that his Honour had full regard to the subjective factors favourable to the respondent. It appears that his Honour had accepted without reservation the accounts recorded in the various reports and other material tendered before him, notwithstanding that the respondent did not give direct evidence of those matters. 24 The Crown referred to two decisions of this court – R v Qutami [2001] 127 A Crim R 369 and R v McGourty [2002] NSWCCA 335. In the latter of these cases Wood CJ at CL said, at paragraph 24: "So far as I can see, there was no factual basis for the finding made by his Honour beyond a self-serving and untested statement made by the respondent to the psychologist. Recently this court has criticised the practice of placing material of this kind before sentencing judges in an attempt to minimise the objective seriousness of a crime otherwise apparent on the face of the record: Regina v Qutami [2001] NSWCCA 353, at para 58 and 59 per Smart AJ, and at para 79 per Spigelman CJ. I wholeheartedly agree with the criticism offered in that case. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his/her criminality, then it should be done directly and in a form which can be tested." 25 The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports – (R v Palu per Howie J with whom Levine J and Heydon J agreed (2002) 134 A Crim R 174 at 185). In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so. 26 The Crown submissions on this appeal may be summarised as follows: first, the sentencing judge accepted two major components of the respondent's case on the basis of hearsay material and in circumstances where the respondent himself did not give direct evidence in relation to those matters. Secondly, the sentencing judge simply gave too much weight to the respondent's subjective circumstances and failed, in that regard, to give balanced consideration to the gravity of the offence and the need for general deterrence. As a consequence, the Crown has argued, the sentence is manifestly inadequate. 27 There is, however, a problem for the Crown in relation to the first submission. The Crown was represented throughout the sentence hearing. The transcript records that, when the hearsay material was tendered, there was no objection taken to it. There was no qualification expressed as to the way in which the sentencing judge might use the material. The Crown did not, at any time suggest that there was any dispute as to the assertion that the respondent had been, in effect, coerced into the criminal enterprise by the force of his father's personality and his position as family leader. Nor was there any dispute raised with the proposition that the respondent had expressed remorse and contrition on a number of occasions in relation to his involvement in these serious criminal activities. Moreover, at one stage, the solicitor appearing for the offender indicated her willingness to call the offender's grandmother to give evidence of her observations of the behaviour of the offender's father towards him. The respondent's grandmother was then present in court with an interpreter available to translate her evidence. His Honour, however, indicated that, for his part, he did not require to hear from the witness in view of the material in the statements. More importantly, the Crown made no demur to the proposition that the sentencing judge might accept the statements in the material before him, without hearing direct evidence on the issue. Additionally, the Crown did not express any wish to test the available witness in cross-examination on any matter relating to the issue. 28 While sentencing judges are required in general to act with caution and employ a sound level of judicial scepticism when confronted with statements in reports or other material which are not supported by an offender's evidence, I do not think it is open to the Crown to complain of appellable error in this court if its representative in the court below has not plainly taken up a disputant position, either when the material was tendered or when submissions were made. This is even more so when, as here, the Crown had raised no objection whatsoever and made no submissions in opposition to the documentary material or its hearsay contents. 29 In some situations, the evidence placed before a sentencing court will be so inconsistent, so contrary to common sense and the agreed facts that, even without Crown intervention, adverse submission or opposition, it will be quite apparent to the sentencing judge that little or no weight should be given to the material. The duty of the sentencing judge will be plain in such a situation. There will be a need for the sentencing judge to inform the parties of his preliminary attitude to the tendered material and to invite submissions and provide the opportunity for further evidence. Absent satisfaction, the judge will be entitled to, and should exercise considerable caution in placing reliance on the material. In many cases, only very limited weight, if any, will be given to the material. When, as happened here, however, there was a consistent body of coherent credible evidence, admittedly of a hearsay kind, supporting the existence of genuine exculpatory factors, it will be necessary for the Crown to state that it disputes the position revealed in that material and to say why that is so. 30 In this regard this case was perhaps an unusual one. This was so because of the consistent nature of the material and its inherent credibility. Nevertheless, there was not one suggestion made that the sentencing judge should reject the material, or treat it as of little value because of the absence of direct evidence from the respondent. If the Crown wished to take an adverse position in that regard during the sentence hearing it needed to do so clearly and explicitly. 31 Because of the Crown's failure to take that position in the rather unusual circumstances of this matter; and because of its tacit acceptance that the sentencing judge might reliably act on that material, there is, in my view, no substance in the first point of the argument. 32 As to the second point, there is no doubt the sentence imposed was a very lenient one indeed. But, for the reasons I will give, I am not satisfied his Honour fell into error and imposed a sentence that was manifestly inadequate. 33 First, the respondent was entitled to a generous discount for the early plea. The trial was likely to have been both lengthy and comple. There was a strong element of utilitarian value involved in the plea. The Court was entitled to recognise that the plea facilitated the administration of justice. Secondly, the respondent's level of participation in the conspiracy, although high, was tempered by two considerations. There was the clear fact that he became involved only during the nine month period between the end of November 2001 and the beginning of August 2002. The enterprise had been on foot since at least December 2000. In fact, the respondent was brought into the venture only when his cousin's visa expired and he was required to leave Australia. The other consideration is an important one. It was his father who was undoubtedly the principal in the overall criminal enterprise. It was his father who coerced him into the business. It was his father who forced him to leave university against his wishes. It was his father who directed and instructed him throughout the enterprise. Although it might be said the offender could have stood up to his father and refused to cooperate with him, there seems little doubt that, in practical and realistic terms, having regard to the offender's youth, his position in the family and the dominance of his father's status as an overbearing patriarch, there was no real prospect of an act of independent insubordination. The sentencing judge correctly said that he regarded the father's criminal history as significant in this regard and I believe that it was. Moreover, the offender received little in the way of financial gain from his involvement in the conspiracy. 34 These considerations were prominent matters, appropriate to be taken into account in assessing the respondent's level of criminality. As I read his Honour's remarks on sentence they were regarded by him as important and significant matters in relation to setting a head sentence. In addition, there was a powerful case for special circumstances. The offender was a very young man with no criminal record. He had good prospects of rehabilitation. He had demonstrated remorse and he had specifically accepted responsibility for his own actions. Additionally he was on protection in prison, although I note that there was no specific evidence as to the consequent level of hardship involved. The combination of these matters brought his Honour to a permissible conclusion that there were special circumstances. This finding found expression in the eighteen month non-parole period he set within the sentence structure. 35 It needs to be said that the offence to which the respondent pleaded, was a particularly serious one. The community, rightly, expects that appropriate punishment will be meted out to those engaged in the theft and re-birthing of motor cars for resale in Australia and overseas. There is, as well, no doubt a need for punishment to reflect and encourage a high level of general deterrence. That said, I do not consider, despite the lenient sentence imposed, that the sentencing judge here lost sight of these important considerations. The sentence he imposed, having regard to the respondent's attenuated level of criminality and his strong subjective case, especially his youth, was within range, albeit at the very edge of the range. 36 I would propose that the appeal be dismissed. 37 IPP JA: I agree. 38 DAVIDSON AJ: I agree. 39 IPP JA: The order of the court will be the appeal is dismissed. ********** Last Modified: 12/23/2003 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.