New South Wales Court of Criminal Appeal CITATION: Azouri v R [2007] NSWCCA 3 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 18/01/2007 JUDGMENT OF: Adams J at 18, 20; Howie J at 1; Price J at 19 EX TEMPORE JUDGMENT DATE: 18 January 2007 DECISION: Application for leave to appeal against sentence is granted but the appeal is dismissed. CATCHWORDS: Criminal Law - Break, enter and steal from bank - Discount for plea of guilty and assistance of almost 60 per cent - whether adequate - whether periodic detention order should have been made. LEGISLATION CITED: Crimes Act 1900 - s 112(1) Firearms Act 1996 - s 40(1) CASES CITED: R v Mostyn (2004) 145 A Crim R 304 R v Sukkar [2006] NSWCCA 92 PARTIES: Milad Azouri v Regina FILE NUMBER(S): CCA 2006/2584 COUNSEL: N. Noman - Crown C. Nash/D. Kang - Applicant SOLICITORS: S. Kavanagh - Crown Ford Criminal Lawyers - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0326 LOWER COURT JUDICIAL OFFICER: Walmsley DCJ LOWER COURT DATE OF DECISION: 09/06/2006 IN THE COURT OF CRIMINAL APPEAL 2006/2584 ADAMS J HOWIE J PRICE J THURSDAY 18 JANUARY 2007 Milad AZOURI v R Judgment 1 HOWIE J: The applicant was sentenced in the District Court by Judge Walmsley SC ("the Judge") for an offence of break, enter and stealing contrary to section 112(1) of the Crimes Act 1900 and an offence of not keeping ammunition safely contrary to section 40(1) of the Firearms Act 1996. In respect of the first offence, he was sentenced to a non-parole period of 15 months with a balance of term of one year to date from 9 June 2006. In respect of the ammunition offence he was sentenced to a fixed term of one month commencing on 9 June 2006. The applicant is to be released to parole on 8 September 2007. He seeks leave to appeal against those sentences. 2 As will be seen shortly the applicant confessed his criminal offending to police and pleaded guilty to both charges in the Local Court. He also gave assistance to the police by nominating his co-offender, by assisting in obtaining evidence against him and by undertaking to give evidence at his trial. As a result of the plea of guilty and the assistance given and offered the Judge reduced what he considered to be an otherwise appropriate sentence of six years to that which he imposed. This is a reduction in percentage terms of about 60 per cent for both the plea and assistance. The Judge did not indicate what proportion of the discount was for future assistance. 3 There are two grounds of appeal being, firstly, that the Judge failed to give appropriate weight to the assistance provided by the applicant and, secondly, that the sentence is manifestly excessive. In written submissions it was accepted that, on its face, the sentence was not manifestly excessive, but it was submitted that it became so when consideration was given to the assistance provided to police and other subjective circumstances of the applicant. The ultimate submission is that the Judge should have ordered that the sentence should be served by way of periodic detention. 4 In brief the facts are that the applicant and his co-offender, Rod Gonzales, stole a very large amount of money, $560,321.40 from the National Bank. They were able to enter and gain access to the bank's safe at the Marrickville branch using a key and access codes obtained by Gonzales because of his employment with a security firm, Brinks Security. The applicant also had some understanding of the bank security arrangements because of his previous occupation with a security firm. The original plan was that the applicant would enter the bank wearing a Brinks uniform, gain access to the safe and leave with the money. 5 On 4 April 2005 the applicant drove to Gonzales' home, purchased a wig, and returned to the house where the two dressed in Brinks uniforms. The applicant wrote the codes on his forearm and put the key in his pocket before they left the premises shortly before 6 pm. The applicant entered the bank and once inside found that the layout did not accord with the description provided by Gonzales. There was a door that he was unable to open and so he left the bank. Gonzales then entered the bank while the applicant waited outside. He accessed the night-safe by using the relevant codes and removed the money. 6 They returned home and split the money, the applicant receiving $180,000. He later disposed of the key and the bank bags. He purchased a BMW motor vehicle for $19,000 and also travelled to Lebanon with the proceeds of the theft. When he returned to Australia, Gonzales assured him that the police knew nothing. Police investigations had, by that time, failed to identify the persons who had committed the offence. 7 However, both the applicant and Gonzales had come under suspicion. On 8 December the applicant agreed to meet police in order to be served a summons to attend the New South Wales Crime Commission in relation to the offence. The applicant informed police that he wished to provide them with information and ultimately entered into a recorded interview. In January 2006 he made a statement to police admitting his involvement in the offence and nominating Gonzales as his co-offender. He agreed to assist police by wearing a listening device on one occasion when he spoke to Gonzales. 8 During a search of the applicant's premises the police discovered in the garage a large canvass bag that contained a large amount of ammunition for shotguns and rifles. This incident gave rise to the ammunition offence. 9 The applicant has no prior criminal record. He was born in Lebanon in October 1979 and came to Australia in 1990. He became an Australian citizen in 1995. His mother and siblings returned to Lebanon after the applicant's parents' marriage broke up. He maintains contact with his family in Lebanon and his father who resides in Australia. The applicant married in 1997 and has three children aged between six weeks and five years. At the time of the offence he was working as a sales manager for a telecommunications company and also cleans carpets. 10 The applicant told a psychologist, who prepared a report for the sentencing court, that he met Gonzales at a gym and learned of his criminal activities. He said that he was seduced by the chance of obtaining money to ease his financial pressures. He described feeling elevated levels of guilt, withdrawal, anxiety and depression following the offence. He expressed fears for himself and his family from Gonzales. There is nothing in the psychiatric report that impacted significantly on the task before the Judge. 11 The applicant gave evidence at the sentencing hearing. He said that he had met Gonzales while the applicant was working in the security industry. He stated that he knew he had large amounts of money and suspected he obtained it illegally. Gonzales asked the applicant if he wanted to become involved. He said that at the time he was under financial pressure: "just paying bills on time and just the usual things that people have". He said that he wanted to buy a new car for his wife. The applicant conceded in cross-examination that he had initiated discussions with Gonzales about obtaining money. He also conceded that there had been no threats made against him since he had spoken to Gonzales at the police behest. 12 The first ground of appeal asserts that the Judge failed to give full weight to the applicant's assistance. Reliance is placed on what is said to be a failure of the Judge to mention the fact that the applicant was to give evidence at the co-offender's trial, a failure to indicate that the applicant was to serve his sentence in harsher conditions and the danger to the applicant's family. Much weight is placed upon the confession made to police in circumstances where, although the police may have had suspicions about the applicant, they had no hard evidence against him. 13 In my opinion this ground has not been made out. It is not suggested that the starting sentence chosen by the Judge of six years was excessive, nor could it be. This was a planned offence involving the knowledge and expertise of both the applicant and the co-offender from their involvement in the security industry. It involved disguising themselves and entering the bank posing as security guards. The offenders intended to obtain a very large sum of money from the bank's safe and this is what occurred. It was clearly an offence of greed so far as the applicant was concerned. Large sums of money cannot be accounted for and are still outstanding. Of the $180,000 that the applicant said he received, he had at the time of sentence repaid $65,000. We have been informed today however, that the applicant has - or it has been paid on his behalf to the New South Wales Crime Commission, the amount of money that, according to the Crime Commission, is the value of the proceeds of the crime received by the applicant. 14 The applicant accepted that he voluntarily became involved in the theft and approached Gonzales to allow him to participate. The maximum penalty for the offence is 14 years and this is an instance of the offence being in the upper range of criminality. 15 As has already been pointed out, the applicant received a combined discount of about 60 per cent. In my opinion that was overly generous. The ultimate sentence of 15 months non-parole period is, in my view, inadequate as reflecting the objective seriousness of the offence. In my view the applicant is fortunate in the finding of special circumstances as the pre-sentence report indicated that there was nothing that required the attention of that service. The Judge found special circumstances existed by reason of the fact that it was his first time in custody and that the applicant will find prison more difficult as a result of informing on his co-offender. There was no evidence to support that finding if what his Honour meant was that the applicant was going to be subject to a more harsh prison regime. It has been held by this Court on more than one occasion that it should not be assumed that an informer will be subject to a harsher prison environment then other prisoners: R v Mostyn (2004) 145 A Crim R 304. 16 There is no evidence that Gonzales posed any particular danger to the applicant or his family. The threat made was general and, although Gonzales must be aware that the applicant is to give evidence against him, there is no suggestion that he has further threatened the applicant or his family. There was no evidence before his Honour and there is no evidence before this Court to suggest that the applicant would have to be placed in protection. In R v Sukkar [2006] NSWCCA 92 it was held by McClelland CJ at CL and myself that it would be exceptional for a combined discount of more than 40 per cent to be granted where there was no evidence that the offender was going to be treated more harshly in custody. In the present case the Judge was entitled to give a more generous discount by reason of the applicant's voluntary confession, but a discount by almost two-thirds was unwarranted. 17 It follows that in my opinion both grounds of appeal cannot be made out. The sentence, as I've already indicated, was an extremely lenient one, there were arguably errors made by the Judge in the applicant's favour and any lesser sentence would be, in my view, inadequate to the point of error. The application should, therefore, be allowed but the appeal should be dismissed. 18 ADAMS J: I agree. 19 PRICE J: I agree with Justice Howie. 20 ADAMS J: In light of the impending trial, although this judgment has been delivered in this Court, it is clear that it ought not to be further published for the purposes of the trial and it will not go onto the internet until after the trial. 21 NASH: Thank you, your Honour. 22 ADAMS J: I will adjourn. 15 March 2007 23 NOTE: The trial of the co-accused concluded on 05/02/2007. ********** 15/03/2007 - Additional paragraph added. - Paragraph(s) 23 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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