New South Wales Court of Criminal Appeal CITATION: Regina v Diab [2005] NSWCCA 341 HEARING DATE(S): 6 September 2005 JUDGMENT DATE: 28 September 2005 JUDGMENT OF: at 1; Grove J at 2; Smart AJ at 3 DECISION: Leave to appeal granted. Appeal against sentence dismissed. CATCHWORDS: Multiple dishonesty offences - errors in application of s 21A of Crimes (Sentencing Procedure) Act - insufficient allowance for special circumstances - despite errors no lesser sentences warranted in law Crimes (Sentencing Procedure) Act 1999. LEGISLATION CITED: Criminal Appeal Act 1912. R v di Gregorio [2004] NSWCCA 9 R v Street [2005] NSWCCA 139 R v Suaalii [2005] NSWCCA 206 CASES CITED: R v Tadrosse [2005] NSWCCA 145 R v Tobar [2004] NSWCCA 391 R v Way (2004) 60 NSWLR 168 PARTIES: Regina v John Diab FILE NUMBER(S): CCA 2005/1043 (A) G Bashir COUNSEL: (C) J Bennett (A) S E O'Connor SOLICITORS: (C) S Kavanagh LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/0168 LOWER COURT JUDICIAL OFFICER: Delaney DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1043 CCAP MCCLELLAN CJ AT CL GROVE J SMART AJ Wednesday, 28 September 2005 Regina v John DIAB 1. McCLELLAN CJ AT CL: I agree with Smart AJ 2. GROVE J: I agree with Smart AJ. 3. SMART AJ: John Diab seeks leave to appeal against the following sentences in respect of these offences: Count Date of Offence Sentence of Imprisonment offence 1 29/10/03 Break and enter Fixed term of 1 year 6 months from 17/5/04 to 16/11/05 with intent to steal 2 10/12/03 Enter building Fixed term of 1 year from 17/11/04 to 16/11/05 with intent to steal 3 10/12/03 Larceny Fixed term of 6 months from 17/11/04 to 16/5/05 4 4/4/04 Break and enter Non-parole period of 1 year 9 months from 17/3/05 to 16/12/06 Balance of term of 12 months from 17/12/06 to 16/12/07 with with intent to steal taking into account one count of larceny 4. The applicant was in custody, bail refused from 15 Apr 04 to 17 Sep 04 and from 20 Oct 04 onwards. With the concurrence of counsel the judge commenced the initial sentence from 17 May 04 to reflect the period spent in pre-sentence custody. The applicant was sentenced in total to fixed terms and a non-parole period of 2 years seven months and a total sentence of 3 years seven months. 5. About 9.50 pm on 29 October the applicant entered the premises of AV Jennings, builders, at Baulkham Hills. A lady who was working back heard some noise and went to investigate. He claimed that he was a cleaner `and was going to get the vacuum cleaner, walked away and left the building. Later, it was discovered that three panels had been removed from the ceiling and the door had been jemmied. Blood was located at the scene and the DNA extracted from the blood and was positively identified as that of the applicant. 6. On the evening of 10 December 2003 the applicant entered the premises of Oracle Australia at North Ryde and stole 4 laptop computers. He was picked up on CCTV footage and the T-shirt he was wearing on that occasion was found in his bedroom. 7. On 4 April 2004 at Meadowbank the applicant entered the premises of Kaz Technology by forcing the front door of the building with a long bladed screwdriver. He attempted, unsuccessfully, to force open an interior door. On this 4th count the judge took into account a further offence of larceny committed at Seven Hills on 24 January 2004 when he stole a pair of Asics running shoes. 8. The judge considered the offences to be serious and said "They would in my opinion, individually looked at, be less than mid range." 9. The judge held: "… these offences were part of a studied course of criminal behaviour and require that the court impose the strongest penalty in relation to specific deterrence as well as general deterrence" 10. The applicant was born on 28 October 1972. His criminal history begins in 1988. From then he has been before the courts in almost every year only 1992, 1998 and 2004 being excepted and often more than once in the same year. There have been many dishonesty offences, malicious damage offences and breaches of recognisances. He has been fined, placed on bonds, required to perform Community Service and sentenced to periodic detention, gone to prison full time for short periods for not serving his periodic detention and for short periods for various offence. On 18 March 1999 he was sentenced to a fixed term of 1 year for using an offensive weapon and to a minimum term of 2 years and 6 months with an additional term of 2 years with conditions for aggravated break and enter and commit felony in company. On 11 April 2003 he was sentenced to imprisonment for 1 year with a non-parole period of 6 months for committing a s.114 offence having a previous conviction. The applicant's record was a poor one and gave him no help on sentencing. 11. As to the applicant's personal circumstances it appears that his parents were strict and that his father hit him almost weekly for punishment, that his father hit his mother during childhood a few times and that this scared the applicant. He had a very unhappy period at his first school being targeted by one of his teachers and wrongly blamed for misconduct. He transferred to another school and eventually completed his School Certificate with average grades. 12. When aged about 15 he became rebellious, ran away from home, stayed out without permission and associated with delinquent peers. He had a series of occupations, periods of unemployment and periods in prison. He obtained work in the construction industry in 2003. From about June 2003 he worked for Mr Dean Moore as a gyprocker and was a good worker. Mr Moore said that he would employ the applicant on his release from custody. 13. Mr Moore said that about 6-8 months previously he noticed a change in the applicant. Although paid "good money" the applicant was running out of money very quickly. The matter was before the court on a number of occasions and the judge noted that Mr Moore had come to court on each occasion to indicate his support. 14. The applicant did not reveal a gambling problem which he had until about the time when he came before the court. He told the psychologist that the problem began about October 2003. He said that his fellow workers spent monies on the poker machines and he did likewise. This quickly escalated in that he would spend all of his wages on gambling. He did not tell his family or his girlfriend. His gambling continued until his incarceration. His recent offending behaviour was motivated by a need to obtain money. 15. The psychologist thought the applicant would need ongoing therapeutic assistance to achieve his aim of not gambling. The judge accepted that the applicant had a gambling problem and that his consequent need to obtain money led to him committing the offences. 16. The applicant told the psychologist that he began consuming alcohol at fifteen and thereafter turned to smoking cannabis on a daily basis between 17 and 27 years of age. He had experimented with other drugs. 17. The judge took the view that although the applicant's past history was not encouraging as to rehabilitation the applicant believed he could be rehabilitated and his partner, his employer and his family were prepared to support him. The judge thought that the applicant was prepared to try and rehabilitate himself and I infer that he thought there was some prospect of success even at this stage of his life. 18. The judge took into account the applicant's remorse and contrition. 19. The applicant looked after his mother who was generally in poor health and ill as his father was deaf and unable to do so and his brothers lived away from home. 20. Appeal Ground 1 reads: The learned sentencing erred in his application of s.21A Crimes (Sentencing Procedure) Act 1999. The applicant contended that the judge had approached the task of assessing the applicant's criminality by weighing the aggravating factors in s.21A(2) and the mitigating factors in s.21A(3). Following listing the aggravating factors which he found to be present the judge stated, "on the other side, the mitigating factors to be taken into account which led me to the conclusion, as I stated before, that these offences were less than mid range…" The judge listed those factors. That is not an acceptable way to assess the offender's criminality . A broader approach is required : Way (2004) 60 NSWLR 168 at [80] – [82]. 21. The applicant submitted that the judge's application of s.21A was erroneous in that : a) He stated that he did not differentiate between the offences when finding aggravating factors to be present. This is not a case where the aggravating factors he mentioned applied to all offences. He was on parole at the time of the first offence but not the others (TPP 5-6 of 20/10/04). The approach taken was incorrect. Aggravating factors are often offence specific : Tadrosse [2005] NSWCCA 145 at [22] – [23]. b) He listed the aggravating factors which he had taken into account without giving reasons to explain why he found that several features were present : Tadrosse at [21]. In some cases the aggravating factors will be obvious and no elaboration will be needed. c) One of the aggravating factors mentioned was vulnerability of the victim. The judge gave no reasons as to this and there were no facts to support such a finding as to any of the offences which involved stealing property or an intent to do so from commercial premises. d) The judge found it to be a factor of aggravation that the crimes were part of a series of criminal acts. There were multiple offences and the applicant was to be sentenced for each offence. The principle of totality had to be applied. The approach taken was erroneous : Tadrosse at [28] – [29]. 22. The applicant submitted that by virtue of the judge erroneously aggravating or increasing the finding of criminality on the applicant's part, a lesser sentence was warranted in law. 23. Appeal Ground 2 reads: The sentencing judge erred in failing to give effect to his finding of special circumstances 24. The judge said that a number of the special circumstances could be shortly stated: (i) it is likely that the sentence will be accumulated (ii) he required rehabilitation from gambling problems (iii) the applicant has expressed the desire to be rehabilitated and requires a longer period of supervision on release 25. The judge found that the applicant's history suggested that if he was not given the appropriate supervision, he may become institutionalised. 26. As earlier appears the sentences were, in some instances, partially cumulative. The applicant pointed out that the non-parole period of 2 years 7 months was 72% of the total head sentence. The applicant submitted that while finding special circumstances existed and imposing a sentence on the last count to reflect this finding, the judge overlooked the effect of the partial accumulation of the other three sentences which resulted in a failure to give effect to the finding of special circumstances. The applicant relied on the decisions of this Court in R v Street [2005] NSWCCA 139 at [37] – [39], R v Suaalii [2005] NSWCCA 206 at [25] – [26] and R v Tobar [2004] NSWCCA 391 at [33] – [39]. 27. The essential thrust of the Crown's detailed submissions was that the sentences imposed and the accumulation were modest, that the applicant was treated with considerable leniency and that the various errors made by the judge as to the application of s.21A of the Crimes (Sentencing Procedure) Act 1999 had no more than marginal, if any, effect on the sentences imposed. That submission is correct. The sentences imposed were lenient. 28. The Crown pointed out that as to the 4th count, the balance of the term of 12 months represented about 57% of the non-parole period, clearly, in excess of the one third contemplated under the statute. The Crown submitted that the judge intended to give effect to his finding of special circumstances by adjusting the statutory ratio in respect of the one offence for which there was to be a non-parole period. It also submitted that the judge took great care to assess the totality of the applicant's criminality and arrive at sentences both as to duration and structure, that would provide the punishment and at the same time facilitate the applicant's rehabilitation. The Crown submitted that the judge cannot be said to have overlooked or failed to give effect to his finding of special circumstances. 29. The Crown argument as to special circumstances would have carried greater weight if the only special circumstances which the judge had found was the accumulation of the sentences. On that basis the combination of the fixed terms and non-parole period would have been entirely explicable and apt. It is the reference to other special circumstances such as rehabilitation from gambling problems and his desire to be rehabilitated and the fear and risk of him becoming institutionalised which have led to my being unable to accept the Crown argument on this aspect of the sentences. 30. The Crown submitted that although the psychologist refers to pathological gambling, there is no more than a hint of addiction and that it would seem that for a defined and relatively short period the applicant engaged in gambling, lost and sought to recover his losses through these crimes. The first of them was committed when the applicant, already burdened with an extensive criminal history, was on parole, a matter of aggravation of some significance requiring greater weight being given to general and specific deterrence : R v di Gregorio [2004] NSWCCA 9 at [58]. 31. The evidence as to gambling was not as extensive as the courts have seen in many other cases; it frequently covers a longer period. Nevertheless, the applicant's gambling appeared to be total. I would not be prepared to reject the psychologist's assessment that the applicant's gambling was pathological. 32. The Crown's concluding submission was that notwithstanding the errors identified no lesser sentence is warranted in law : s6(3) of the Criminal Appeal Act 1912. 33. The post sentence affidavits filed on behalf of the applicant reveal that he works well when given direction and that he has also attended weekly counselling meetings to deal with his gambling. His mother continues to be ill. 34. Decision The applicant's extensive criminal history means that weight has to be given to specific and general deterrence. The sentences imposed reflect considerable leniency and their partial accumulation softened their impact. For the criminality revealed the fixed terms and the non-parole period were lenient. There was also leniency in the accumulation. Notwithstanding the errors, a court could not impose lesser sentences. No lesser sentences were warranted in law. 35. Because of the errors leave to appeal should be granted but the appeal should be dismissed. I propose the following orders : 1. Leave to appeal granted 2. Appeal against sentences dismissed. ********** 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.