EL-KHEIR v REGINA [2007] NSWCCA 280

New South Wales Court of Criminal Appeal

CITATION: EL-KHEIR v REGINA [2007] NSWCCA 280 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10 September 2007

JUDGMENT DATE: 10 September 2007

JUDGMENT OF: Mason P at 1; Adams J at 24; Smart AJ at 25

EX TEMPORE JUDGMENT DATE: 10 September 2007

DECISION: Leave to appeal granted but appeal dismissed

CATCHWORDS: CRIMINAL LAW – Appeal against sentence – severity – where custodial sentence imposed – plea for suspended sentence – alternative sentences – factors to be taken into account – where criminality agreed – relevance of crime being motivated by drug dependency – disparity – co-offenders – where lesser criminality alleged – Crimes Act 1900, s 313

LEGISLATION CITED: Crimes Act 1900

PARTIES: Nedol EL-KHEIR Regina

FILE NUMBER(S): CCA 2007/3233

COUNSEL: Applicant: Warwick R Ward Respondent: M Barr

SOLICITORS: Applicant: None Respondent: S Kavanagh, Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/3114

LOWER COURT JUDICIAL OFFICER: Sides QC DCJ

LOWER COURT DATE OF DECISION: 13 June 2007

IN THE COURT OF CRIMINAL APPEAL CCA 2007/3233

MASON P ADAMS J SMART AJ

Monday 10 September 2007

Nedol EL-KHEIR v Regina Judgment

1 MASON P: The applicant pleaded guilty to a charge of doing an act with the intent of perverting the course of justice. The offence carries 4 years under the Crimes Act 1900, s313. On 13 June 2007 Judge Sides QC imposed a sentence of one year four months to commence that day. There was a non-parole period of eight months imprisonment. 2 The indictment charged that the applicant encouraged Adnan El-Kheir to pay money to an unknown third party with intent thereby to pervert the course of justice. 3 The facts are in small compass. Adnan El-Kheir is the cousin of the applicant. In about March 2005, it became known that he was suspected by police of being involved in a number of armed robberies. There was a Police Task Force and listening devices were installed in premises occupied by Adnan El-Kheir and his family. A number of members of the family were attempting to assist him by manufacturing false alibis. 4 There was an article in a newspaper relating to an armed robbery at a credit union. This was one of the offences that the police suspected that Adnan El-Kheir had been involved in. Members of his family had been interviewed by the police. In that context the applicant came up with the idea, through an intermediary who was his father's best friend, to arrange for the matter to be "fixed" prior to Mr El-Kheir being charged. Intelligence gathered through a listening device indicated that El-Kheir could expect to pay between $6,000 and $7,000 for the charges that he was facing to be fixed. 5 The applicant spoke to a person called "Ray" over the telephone discussing with him the fixing of those charges. There was more than one call made to this person and there was more than one conversation between the applicant and Adnan El-Kheir where the issue was discussed. Over the days covered by the charge, 15 and 16 March 2005, the applicant continued to promote his role as a fixer to his cousin and re-assured him about the charges. 6 The applicant was charged initially with conspiracy to pervert the course of justice. That charge was laid in 2005. In March 2007 he pleaded guilty to the offence as charged in the indictment to which reference has already been made. 7 The attempt to pervert the course of justice never came to fruition and no money was ever paid to the offender. Nevertheless, the seriousness of the offence is indicated by the maximum penalty provided by Parliament. 8 The written submissions raised four grounds of appeal, namely: 1) The sentence imposed is too severe given the agreed criminality in the agreed facts; 2) Inadequate consideration to a section 12 suspended sentence by his Honour when options of community service were not available for drug dependants; 3) A co-accused was sentenced to a section 12 bond with apparently greater level of criminality; and 4) Inadequate attention was given to the "boasting", "big-noting" or 'Walter Mitty' factor of the case, especially in the context of a modest criminal history." 9 The learned sentencing judge determined that the plea of guilty entered at arraignment entitled the applicant to a discount of 20 per cent less than the sentence that otherwise would have been imposed. There is no challenge to this assessment. Nor is there a challenge to the sentencing judge's consideration of the subjective features relevant to this offender. For that reason, I mention them only briefly. 10 The applicant came to Australia from Lebanon when aged 15. He had a difficult and traumatic upbringing. He is now aged 31, and married to a supportive wife with four children. The sentencing judge took into account the fact that the applicant has small children who are dependent on him. 11 The judge considered but rejected the submission that the sentence should be suspended. He was of the view that this would not appropriately reflect the subjective gravity of the offence. 12 A plea for a suspended sentence was the centrepiece of the applicant's submissions in this Court. In developing the written submissions, counsel for the applicant laid particular emphasis upon the fact the applicant was motivated by the need for money to support a drug habit, as distinct to having an intent to undermine the proper functioning of the judicial system. 13 It seems to me that this submission raised a false dichotomy in an attempt to mitigate the offence. The conduct to which there has been a plea of guilty has, as its gravamen, the professed interference with the proper functioning of the legal system in return for a payment of money. The integrity of the criminal justice system depends upon its proper functioning, among other things, upon a well-founded general consensus that it is not capable of being interfered with by the payment of money to stall or oil the processes. Those who offer to do so in return for money are therefore striking at the heart of the judicial system and their intended acts though directly motivated by money have that consequence. 14 As to the grounds of appeal developed within the written submissions, I will deal with grounds 1 and 2 together. The facts which have been recounted reveal conduct going beyond mere preparation that falls within the heart of this serious offence. The applicant was, it appears, putting into train steps designed to interfere with the proper processes of justice and he has indicated that he was doing it on the basis of extracting money from the person for whom his help was being offered. 15 As summarised in the helpful written submissions on behalf of the applicant, the proposal that was being discussed between the applicant and his cousin was essentially: "You give me money - my powerful mate Ray will take care of everything." 16 I have indicated already that the sentencing judge considered the question of a section 12 suspended sentence. It was not overlooked. I agree with the reason that his Honour gave for rejecting that option. 17 One basis upon which the matter was pressed below and that feeds into the third ground of appeal is that one of the people said to have been the co-accused with the applicant was given a section 12 bond. The person involved is Ms Jennifer Anderson. She had been charged with two offences and had pleaded guilty. The offences were concealing serious offences (for which a two-month sentence was imposed) and conspiracy to pervert the course of justice (for which a non-parole period of 18 months, that sentence being suspended pursuant to section 12(2), was imposed). 18 The offender in that situation is the spouse of Adnan El-Kheir. The series of offences she concealed involved failing to bring information to the attention of the police concerning a robbery at a credit union alleged to have been by her common-law husband, Adnan El-Kheir. The conspiracy to pervert the course of justice charge related to the creation of a false alibi for her husband in relation to the same robbery. 19 What is significant about this sentence that is claimed to engage the principle of parity, is that Anderson had already spent six months and 20 days in custody in relation to the two offences to which she pleaded guilty, a period not far distant of the non-parole sentence imposed upon the applicant. Additionally, the sentencing judge dealing with Anderson took into consideration that she was looking after three children, including a baby who had to be placed in the custody of grandparents, when she was in custody. 20 The fourth ground of appeal is one about which nothing was said in oral submissions and is a little difficult to understand in the context of the matter that was developed in the oral submissions. The written submission to the effect that inadequate attention was given to the boasting or big-noting factors of the case seems to lie ill with the oral submission that the applicant was involved in the offence, but doing it in order to gain money to feed his drug habit. 21 In any event, I don't consider that the sentencing decision is appealable on this fourth basis. The only evidence of so-called big-noting is in the probation and parole report, a matter to which the sentencing judge made specific reference. His Honour said "It notes that, in discussion with the probation officer … [the applicant] attempted to minimise his role by indicating he was big-noting himself, but nonetheless the author of the pre-sentence report accepted that the Offender accepted responsibilities for his actions." 22 In my view, whether or not the applicant was being entirely frank with the person from whom he was arranging to fix the process of the criminal law is ultimately neither here nor there. The fact is that he was taking active steps in that regard, apparently such that the person for whom he was dealing would have believed that he was serious about it. 23 In my view none of the matters that have been raised give reason to displace the sentence that has been imposed. I propose that leave to appeal be granted, but that the appeal be dismissed. 24 ADAMS J: I also agree. 25 SMART AJ: I agree. 26 MASON P: That is the order of the Court. **********