New South Wales Supreme Court CITATION : Regina v Ahmad [2005] NSWSC 848 HEARING DATE(S) : 04/07/2005, 23/08/2005 JUDGMENT DATE : 23 August 2005 JUDGMENT OF : Howie J at 1 DECISION : The offender is sentenced to 9 months imprisonment to commence on 23 August 2005 and to expire on 22 May 2006. The sentence is suspended upon the offender entering into a recognizance to be of good behaviour for the period of the sentence. CATCHWORDS : Criminal Law - Sentencing for Hinder police investigation Crimes Act 1900 - s 315 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 - ss 12, 21A(2) CASES CITED : R v Zamagias [2002] NSWCCA 17 PARTIES : Regina v Nidal Ahmad FILE NUMBER(S) : SC 2004/2347 T.R. Bailey - Crown COUNSEL : P. Doyle - Offender S. Kavanagh - Crown SOLICITORS : LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOWIE J TUESDAY 23 AUGUST 2005 2004/2347 REGINA v NIDAL AHMAD REMARKS ON SENTENCE 1 HIS HONOUR: The offender, Nidal Ahmad, pleaded guilty on arraignment before this Court to a charge contrary to s 315 of the Crimes Act that she, between 11 June 2002 and 15 July 2002, encouraged Walid Ahmad to avoid police investigators with an intention to hinder the apprehension of the said Walid Ahmad for the serious offence of feloniously slaying Mayez Danny. 2 The offender was committed for trial to this Court on a charge of accessory after the fact to murder. She pleaded guilty to the offence on which she was arraigned as soon as the Crown indicated that it was prepared to accept a plea to that charge. However, Mr Doyle, who appears for the offender, has acknowledged that there were some discussions in the Local Court at the time of the committal proceedings as to whether or not a less serious charge than the committal charge would be accepted by the Crown and by the offender. Therefore, Mr Doyle, quite candidly has indicated to the Court that he cannot make the submission that the plea of guilty was at the first reasonable opportunity. 3 However, there is clearly a utilitarian value to the Crown in the plea of guilty and it seems to me that the charge is an appropriate one, having regard to the conduct that the Crown alleges in support of that particular charge. In light of the history of the matter the discount should be about 20 per cent but it may be that the effect of the discount will be to alter the nature of the sentence that would otherwise be appropriate rather than the length of the sentence. 4 Of course, the offender could not be dealt with for the more serious charge because the Crown has now accepted a plea of guilty from the principal offender, her husband Mr Walid Ahmad, to manslaughter. So to some extent, the charge currently before the Court is as a result of the plea negotiations that have occurred between the Crown and her husband. 5 It is unnecessary to detail the circumstances in which the offence committed by the principal offender, that is her husband, occurred. He has, as I have indicated, pleaded guilty to manslaughter and is to be sentenced by me some time shortly hereafter, and I am about to hear the sentencing proceedings in respect of him. 6 It is sufficient to say that the principal offender, her husband, shot and killed another member of the Lebanese community following a disagreement that occurred between factions in that community in the Condell Park area where they lived. Friction arose as a result of an incident occurring some days earlier at a nightclub where there was an argument resulting in injury being inflicted upon a person belonging to one of the two factions that ultimately came to violent confrontations as a result of the incident at the night club. 7 The matter came to a head in circumstances where the Crown accepts now that the offender's husband killed the deceased in excessive self-defence. After the shooting the husband went into hiding. As to the offender's criminal conduct the Crown relies upon a number of phone calls between the offender and her husband which indicate that she had, at least, been misleading the police as to her knowledge of her husband's whereabouts and whether she was able to contact him. Therefore, she hindered the police in their investigation of the killing of the deceased by making it more difficult for them to locate the person they wanted to speak to in relation to the killing. That delay caused difficulties for the police in a number of ways set out in the agreed statement of facts. The offender was clearly encouraging her husband, and assisting him, to remain in hiding by supplying him with his needs and informing him of what the police were doing. 8 The offence is one that carries a maximum penalty of 7 years. It is an offence which could be dealt with in the Local Court, although I doubt that the particular offence that is before the Court was an appropriate one to be dealt with summarily, having regard to the serious nature of the indictable offence and to the effect of the offender's conduct upon the police investigation. 9 The offender is aged thirty. She was born in Lebanon, came to Australia with her husband after they married in 1997. The offender and her husband have three children of that marriage, they being now aged six, four and two years of age. The children live with the offender in a flat and she is their sole carer since her husband's incarceration. She receives financial assistance from the Centrelink organisation as well as from members of her family who pay her mortgage. No doubt, the fact that her husband is in custody in relation to the killing of the deceased has brought about considerable hardships for the offender in caring for the three children. 10 There is a pre-sentence report before me that indicates that the relationship is under some strain by reason of the offence committed by her husband, and the fact that he is in custody. There is little doubt however, that it was her relationship with her husband that gave rise to the commission of the offence. 11 One can understand the situation that arose where the offender, for various reasons, not the least the effect upon the children, would seek to assist her husband in avoiding the police. However, that is not to minimise the criminality involved by the offender in misleading the police and comforting her husband in his avoidance of them. It is objectively a serious offence, even though the charge against her husband is now manslaughter and not murder, and the nature of the offence being investigated by police is a significant factor when determining the seriousness of an offence under this particular section. 12 Mr Doyle, who appeared on her behalf, accepts that this was an ongoing offence over a relatively short period of time, and that is another matter that tends to indicate that this is a relatively serious instance of this type of offence. There is however no other aggravating feature under s 21A(2) of the Crimes (Sentencing) Procedure Act. 13 I have already sentenced one person for a similar offence arising from the incident of the shooting of the deceased by the offender's husband. That was a very much different offence than the present one. That was a case where the offender, Mr Hamzy, was present at the location at around about the time of the shooting, and on leaving the area, picked up a weapon that he found lying on the ground, took the weapon with him and later disposed of it in the bush so that the police could not investigate the circumstances of the shooting, and in particular, whether that firearm was involved. As it transpired, the firearm was not the weapon used to shoot the deceased or to inflict injuries upon another person who was also shot at the time of the incident. 14 In my view, the current offence is probably more serious than that of Mr Hamzy, it being over a period of time and more planned than was Mr Hamzy's criminal enterprise in simply picking up a gun that he located on the ground with the intention of getting rid of it. On the other hand, Mr Hamzy was acting through some loyalty to persons involved in the incident giving rise to the shooting, whereas, the offender in this particular case, no doubt, was activated by love as much as loyalty and her concern for her husband and her children if the police found him and prosecuted him for the shooting. 15 There is no doubt in my mind, that the offender is not generally a criminal. She is a mother who looks after her children as best she can in the circumstances in which she finds herself. Nor is there any doubt in my mind that she will not re-offend and the only real purpose of this sentencing exercise is firstly, to punish her for her criminal activity and secondly, to send a message to the community that persons must not act in the way that the offender did to hinder police in the investigation of serious criminal activity as was the case in this particular matter, even where the police investigation involves a loved one. 16 The offender has given evidence before me. She has stated, as she did to the Probation Officer, that she was unaware at the time of the commission of the offence that she was doing anything criminally wrong in attempting to assist her husband by interfering with the police investigation and she was not cross-examined on that evidence. Although that does not excuse her criminal behaviour, it certainly puts a complexity upon it somewhat different than might have been the case had she been aware that she was committing an offence at the time she was assisting her husband. 17 There is no suggestion by the Crown that I should require this relatively young lady of otherwise good character to serve a period of immediate custody. The Crown has submitted that the appropriate sentence to impose upon her would be a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act for the reasons that the offence is one that warrants a gaol sentence, and secondly, it would be a sentence that would have in the circumstances of this particular case a sufficiently deterrent effect. 18 In R v Zamagias [2002] NSWCCA 17 the Court of Criminal Appeal looked at the proper approach to be taken to sentencing in respect of suspended sentences. It was held that the Court must determine the sentence before deciding whether to suspend it. The Court indicated that a suspended sentence can be, in an appropriate case, a sentence which adequately reflects the criminality of the offender and can sufficiently act as a general deterrent. 19 Mr Doyle submitted that I should either place the offender on a good behaviour bond under s 9 of the Act or otherwise, if I thought that was an inappropriate sentence for both purposes of punishment and general deterrence, to impose upon her a community service order. 20 As I have already indicated, this is not a case where there is any suggestion that the offender is likely to re-offend in the future. The Probation and Parole Service see no benefit to her in supervision because there is nothing in her character, behaviour or circumstances that needs to be addressed by the Service. It does not seem to me to be an appropriate case to deal with the offender by a recognisance. That does not seem to me to be a sufficiently severe sentence to punish her for what she did, even accepting that it was unwittingly a criminal offence, and certainly, it would not have the appropriate general deterrent aspect. Nor does community service seem appropriate particularly in light of the young children for whom the offender is the sole carer. However, that fact is not sufficiently exceptional to permit me to refrain from imposing a custodial sentence if I otherwise thought it appropriate. 21 In my view, the appropriate sentence to impose upon the offender is one of a fixed term of 9 months imprisonment. That sentence is to be a fixed term because there is no purpose to the offender being granted parole. There is, as I have already indicated, not the slightest suggestion in the material that she is likely to re-offend. Nor is there any need for her to be on supervision or to have the assistance of the Probation and Parole Service. This fixed term seems to me to be the equivalent of a non-parole period that would otherwise be appropriate if I fixed a total sentence and a non-parole period. 22 It seems to me that the appropriate order to make in the circumstances of this particular matter, having regard to the fact that the Crown apparently accepts because it did not cross-examine her, that she was unaware that her conduct was criminal, is to suspend the sentence under s 12. It seems to me to also have the benefit of allowing the offender to continue caring for her children without imposing upon any other member of the community or community services. She can simply get on with her life as best she can while her husband remains in custody. It is an appropriate sentence to mark the criminality of her offending and provides in the circumstances of this case sufficient general deterrence. I have taken into account the plea and delay in sentencing in determining that it is appropriate to suspend the sentence. 23 Therefore, the offender is sentenced to a period of 9 months imprisonment. That sentence is to commence today, 23 August 2005, and is to expire on 22 May 2006. I have determined that there should be a fixed term for the reasons I have already given. The sentence is suspended upon the offender entering into a recognisance under the Act to be of good behaviour for the period of the sentence. I make no further conditions. ********** 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.