Regina v Ibrahim [2005] NSWSC 1028

New South Wales Supreme Court

CITATION : Regina v Ibrahim [2005] NSWSC 1028

HEARING DATE(S) : 04/07/2005, 30/09/2005

JUDGMENT DATE : 30 September 2005

JUDGMENT OF : Howie J at 1

DECISION : The offender is sentenced to imprisonment for 17 months with a non-parole period of 12 months. The sentence is suspended upon condition that the offender enter into a bond to be of good behaviour for the period of the sentence.

CATCHWORDS : Criminal Law - Sentencing for Hinder Police Investigation

Crimes Act 1900 - s 315(1)(a) LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 - ss 12(3), 43

R v Ahmad [2005] NSWSC 911 CASES CITED : R v Dib [2003] NSWCCA 117

PARTIES : Regina v Hassan Ibrahim

FILE NUMBER(S) : SC 2004/2345

T.R. Bailey - Crown COUNSEL : J. Doris - Offender

S. Kavanagh - Crown SOLICITORS : Galloways Solicitors - Offender

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

FRIDAY 30 SEPTEMBER 2005

2004/2345 REGINA v HASSAN IBRAHIM

REMARKS ON SENTENCE 1 HIS HONOUR: On 4 July 2005 the offender Hassan Ibrahim pleaded guilty to a charge that between 11 June 2002 and 15 July 2002 he encouraged Walid Ahmad to avoid police investigations with intent to hinder the apprehension of the said Walid Ahmad for the serious indictable offence of feloniously slaying Mayez Danny. This is an offence contrary to s 315(1)(a) of the Crimes Act and carries a maximum penalty of imprisonment for seven years. 2 The offender is the fourth person to be sentenced by me following an incident in Greenacre in suburban Sydney during which Ahmad shot and killed Danny. Two of those persons, one being Ahmad's wife, were sentenced for hindering the police investigation of the killing of Danny. Each received a gaol sentence, although in one case the sentence was ordered to be served by periodic detention and in the other the sentence was suspended. 3 The facts can be stated very briefly for present purposes. The events leading up to the killing have been set out in the sentencing remarks in respect of Ahmad at [2005] NSWSC 911 and it is unnecessary to repeat them again in any detail. It is sufficient to note that the killing arose out of a conflict between two groups within the Lebanese community that resulted in a large number of men, including the offender, gathering in Claremont Avenue, Greenacre on 10 June 2002. During that hostile confrontation Ahmad shot Danny after the latter had himself discharged a firearm wounding Ahmad's uncle. After the killing the crowd dispersed and Ahmad went into hiding. As he was leaving the scene Mr Hamzy picked up a pistol lying on the ground and later disposed of it in the bush. That act gave rise to a charge of hindering the investigation of the shooting and Hamzy was ultimately sentenced for that offence. 4 While Ahmad was in hiding from the police, he was in telephone contact with both his wife and the offender. With full knowledge of what had occurred they independently gave him encouragement to avoid the police. The offender was in frequent contact with Ahmad over the period from the killing until 15 July when Ahmad was arrested. On occasions the offender Ahmad gave advice as to what he should do in order to avoid the police including on one occasion hiding out in a caravan park on the South Coast. 5 The offender accepts that by his acts the police investigation was compromised by the delay in arresting Ahmad for a period of about a month after the killing. The delay had an impact upon the police use of forensic and ballistic aids to investigate the shooting and discouraged other persons from coming forward with information. As a consequence a relatively simple straightforward investigation became an expensive and difficult one. 6 The offender was originally charged with being an accessory after the fact to murder. After considerable delay in the proceedings reaching this court Ahmad pleaded guilty to a number of offences including manslaughter and this offender pleaded guilty to the hinder charge. I have been informed that during the course of the committal proceedings the then solicitor for the offender spoke to the solicitor representing the Crown. It was then suggested that his client might be prepared to plead guilty to the charge he now faces rather than the more serious offences for which he was before the court. That suggestion was rejected by the Prosecutor. After a short time following the offender's committal to this court the Crown reconsidered its position determined to abandon the committal charges and proceed on the present offence and shortly thereafter the offender was arraigned and pleaded guilty. 7 It has been argued forcefully by Mr Doris that I should accept that the plea of guilty was at the first reasonable opportunity and give the offender the benefit of the full discount for the utilitarian value of the plea. It seems to me, however, in the light of the whole of the course of the proceedings and the fact that the plea came almost three years after the event that the appropriate discount is one of 20 per cent, the same as I gave to Mrs Ahmad. The authorities, particularly the case of R v Dib [2003] NSWCCA 117, make it clear that the utilitarian value of the plea is not decided simply on the basis of when the first reasonable opportunity to plead guilty arose. 8 The delay here between the offence and the sentence is considerable and is a matter to be taken into account. The offender has been living under the threat of a gaol sentence for over three years and no doubt this has impacted on his ability to live a normal life in the community. There is material in the presentence report that indicates that this had caused some difficulty between his wife and himself. I do not otherwise believe that the delay has disadvantaged him. 9 The offender is now aged 40 years. He has a criminal record dating from March 1984 when he was before the Childrens Court for an offence of assault occasioning actual bodily harm. He was discharged on entering into a good behaviour bond. He was before the court on two further occasions in 1984 and on each appearance was sentenced for an offence of assault occasioning actual bodily harm and each time sentence was deferred. He appeared on charges of offensive behaviour in 1985 and 1988 and fined. In 1991 he was in the District Court on two charges of assault occasioning actual bodily harm and sentenced to terms of imprisonment to be served by way of periodic detention. I note that eventually he was breached for failure to complete that sentence when it was dealt with by way of dismissal via section 556A of the Crimes Act. In 1993 he was fined in the Local Court for offences of offensive behaviour and hinder police. He was fined in 1995 for three charges of possession of drugs and other items. In 1997 he was fined for using a false instrument. 10 He has spent some periods in custody, bail refused on various charges. He was in custody in relation to a charge arising in the present matter between 5 December 2002 and 4 March 2003. That clearly is a matter to be taken into account in determining what sentence to impose upon him for the offence before the Court. 11 The offender was born in Lebanon and came to this country with his parents at the age of six years. Despite difficulties for the family as a result of his father's behaviour in leaving the family at one stage to return to Lebanon and his father's gambling problems, there are strong and supportive relationships between the offender, his mother and his siblings. The offender, from an early age, took the role of a "father figure". He was married in 1994 and has two children, although he has been separated from his wife for the last 18 months. The wife apparently has been concerned about the offender's involvement with a motorbike club and his associates. 12 The offender is illiterate and has worked for much of his adult life as a bouncer because of his skills in the martial arts. Much of his criminal associations and later offences stem from his involvement in the Kings Cross area. However, he ceased that type of employment about five years ago and in more recent times has been involved in a partnership in a construction company. It appears from the presentence report that there is some conflict in the offender's mind about his relationship with the motorbike club and some of what might be considered his less desirable associates. Those matters have not been resolved as yet. He was involved in a serious motor vehicle accident in 2000 as a result of which he suffered a serious injury to his leg that still causes him pain and has limited his physical abilities. 13 There was some suggestion made from the Bar Table that he may require a further surgical intervention but there is no material before me so that I could take that factor into account in determining the appropriate sentence. The offender's sister gave evidence before me in his absence when I was considering refusing him bail for his non-attendance before this Court and because of his failure to attend the Probation and Parole Service for the preparation of a report. That material indicates that the offender is still troubled by pain and depression resulting from the injuries he suffered in a motor vehicle accident. 14 The offender has given an account of the offence to the probation officer that indicates that although he is prepared to plead guilty to the offence and thereby acknowledge, at least formally and legally, his commission of the offence, he does not truly accept that he did anything wrong and has no remorse for his conduct or appreciation of the seriousness of his behaviour. That is a matter of considerable concern in determining issues such as the likelihood of re-offending and the prospects of rehabilitation. 15 There are matters in the presentence report of concern in evaluating the prospects of rehabilitation of the offender given his associates, the persona he wishes to present to the community and the reputation that he is apparently happy to enjoy within the circle of people in which he moves. 16 As I have indicated, it is these matters that have finally caused his wife to separate from him notwithstanding her love and regard for him as a husband and father. However, she is concerned to shield herself and her children from this other side of his life that he is not so far been prepared to abandon. I am not prepared to find on the balance of probabilities that there are good prospects of rehabilitation or that he is unlikely to offend in the future. However, his criminal record is not such that it should be used to indicate that either the protection of the public or personal deterrence are matters that need to be reflected in the sentence. 17 I want to make it perfectly clear, as I did during the course of the submissions by his counsel, that I am not sentencing him by reason of his associates or the reputation that apparently he enjoys in some areas of the community. 18 The offence is a serious one, notwithstanding the actual conduct of the offender falls at the very lower end of the scale of offending under the section, because he knew that the police were seeking to investigate the unlawful killing of another person. The offending occurred over a period of about a month and consisted of a number of criminal acts. Unlike the offence of Mr Hamzy, it cannot be viewed as an instantaneous reaction to a situation that presented itself. Although it was not conduct as serious as concealing or destroying evidence, the hindering had a deleterious impact upon the police investigation in a real and practical sense. 19 As I indicated when sentencing Ahmad's wife, the offence is one that could be dealt with in the Local Court and perhaps would have been appropriately been before that court other than for the seriousness of the offence being hindered. I doubt that Mr Ahmad needed much encouragement to remain away from the police. But, as I indicated to his counsel, the fact that a fleeing offender is not alone, is clearly a matter which will encourage him to remain at large. 20 It is in my view a matter that requires a gaol sentence to be imposed notwithstanding that the criminality is very much at the lower end of the type of conduct that would be embraced by the offence. In fact Mr Doris who appeared for the offender conceded as much. In my view the criminality of the offender is more serious than that of Mrs Ahmad notwithstanding that I accept that there were aspects of her conduct which were more serious than the offender's. She was prepared to offer actual assistance by way of providing clothes and was prepared to mislead the police as to her contact with her husband. 21 However, the difference in the motivation of Mr Ahmad's wife, and that of the offender to assist Ahmad, are matters of very significant distinction in assessing the culpability of each of them for their criminal conduct. Mrs Ahmad was moved by her concern for the welfare of her husband and children. I accepted her evidence that she did not realise that it was a criminal act to assist him. Further, Mrs Ahmad's subjective circumstances were much more to her advantage than are those of the offender both generally and so far as her prospects of further offending are concerned. 22 In my view the sentence must have a very significant degree of general deterrence and only a gaol sentence will reflect both that factor and the objective seriousness of the offence. The Probation and Parole Service does not believe that it can assist the offender by supervision. In its view there is no aspect of his life that can be addressed by the Service. The simple fact is that the offender is old enough and has sufficient experience to make his own decisions about how he spends his life. If the separation from his wife and children will not alter his attitudes and associations, I cannot see how any amount of counselling, or assistance, professional or otherwise, might do so. 23 The appropriate sentence, in my view, should be 20 months. I acknowledge that that is considerably more than that imposed on Mrs Ahmad. But it reflects the difference in the criminality between the two and their differing subjective circumstances. Mrs Ahmad had the advantage of prior good character and she had the care of her three children without the support of her husband who had been in custody for a very considerable period. She showed real remorse and contrition and there is absolutely no likelihood of her re-offending in any way again. She found herself before this court being sentenced for a serious criminal offence simply because she happened to be married to a man who kill another human being. 24 The offender is unsuitable for periodic detention partly because of health issues arising from his injury and partly because of concerns of safety for himself or others. It is somewhat curious that a person would be rejected from serving a sentence by way of periodic detention for these reasons, leaving a court the dilemma of imposing a full-time custodial sentence where both the injury and the threat of harm to the offender would have greater significance. However, as I indicated to Mr Doris, it is not a case of this court trying to find some sentence that the offender can serve. The simple question is whether, having determined on the appropriate sentence to be imposed upon the offender, can that sentence be served other than by way of full-time custody. It is significant in that determination that the offender has spent three months in custody in relation to the offence, that the offence occurred over three years ago and that he has been on bail since March 2003. 25 The major consideration in determining what order if any to make in relation to the serving of the sentenced is the question of parity. I am of the view that there would be a justifiable sense of grievance arising on the part of the offender if, by reason of the fact that he was found unsuitable for an order of periodic detention on the basis of his injury and fears for his safety, that he should be required to serve full-time custodial sentence when neither Mr Hamzy nor Mrs Ahmad were required to do so. The would be too great a disparity created between a full-time custodial sentence to be served by the offender and the substantial benefit given to Mrs Ahmad of an order suspending the sentence, notwithstanding the very different subjective circumstances and the differences in their criminality. 26 The Crown has conceded that in this case it would be appropriate, bearing in mind the difficulties that have arisen in relation to the sentencing of the various offenders, that I impose a sentence which I think is appropriate, but suspend it. With respect, that is a proper submission and I would have come to that view even had the Crown not made such a concession. 27 I intended to give the offender the benefit of the plea of guilty, but not by discounting the length of the sentence but by taking that fact into account when determining to suspend the sentence. It seems to be a matter that assists me to take that course in a case which is somewhat exceptional. There are no special circumstances requiring a variation in the ratio between the head sentence and the non-parole sentence. 28 The sentence should be one of 20 months with a non-parole period of 15 months, but reduced by 3 months for the time he has already served. 29 The sentence will be 17 months with a non-parole period of 12 months from today, with the non-parole period to expire on 29 September 2006, the date on which you are notionally, at least, to be released to parole. The sentence is suspended but you are required to enter into a good behaviour bond for the period of the head sentence. 30 HIS HONOUR: Let me make it quite clear to you that you are fortunate not to be returning to prison, do you understand? OFFENDER: Yes, sir. HIS HONOUR: To some degree it is not anything you have done that has brought about that result. You have been fortunate in the way matters have turned out. You should understand, however, that any future criminal offence, no matter how minor you might think it to be, will have the effect of bringing you back before this Court to consider whether or not that order of suspension should be revoked, do you understand that? OFFENDER: Yes, sir. HIS HONOUR: You should also understand that there is little discretion in a court to refuse to revoke the order of suspension notwithstanding that the offence you commit might not otherwise have sent you into full-time custody, do you understand? OFFENDER: Yes, sir. HIS HONOUR: Let me explain it to you; for example, by hitting somebody and causing that person some minor injury, you would not normally be sent to gaol, but that would be an offence which would cause this Court to revoke the suspended sentence, do you understand? OFFENDER: Yes. HIS HONOUR: And you would serve this sentence, do you understand? OFFENDER: Yes, sir. 4 OCTOBER 2005 31 Since sentence was passed it was realised that as the sentence was being suspended the date upon which the sentence commenced or the expiry date for the non-parole period should not have been specified; see R v Tolley [2004] NSWCCA 165 and section 12(3) of the Crimes (Sentencing Procedure) Act. 32 Pursuant to section 43 of the Crimes (Sentencing Procedure) Act, as the sentence is a penalty that is contrary to the law, the terms of the sentence have been amended by deleting both the commencement date of the sentence and the expiry date of the non-parole period. **********