R v Mohammad Douar [2007] NSWCCA 123

New South Wales Court of Criminal Appeal

CITATION: R v Mohammad Douar [2007] NSWCCA 123

HEARING DATE(S): 26/04/07

JUDGMENT DATE: 10 May 2007

JUDGMENT OF: James J at 1; Rothman J at 41; Harrison J at 42

DECISION: Crown appeal dismissed in exercise of discretion

CATCHWORDS: CRIMINAL LAW - Crown Appeal against sentence - Criminal Appeal Act s5DA - Court's discretion - Appeal dismissed in exercise of discretion

LEGISLATION CITED: Crimes (Sentencing Procedure) Act Criminal Appeal Act

R v Bagnall & Russell (CCA unreported 10 June 1994) R v Chaaban [2006] NSWCCA 352 R v El-Sayed (2003) 57 NSWLR 659 CASES CITED: R v KS [2005] NSWCCA 87 R v O'Brien (NSWCCA unreported 10 June 1993) R v Waqa (2004) 149 A Crim R 143 R v Zamagias [2002] NSWCCA 17

PARTIES: R v Mohammad Douar

FILE NUMBER(S): CCA 2006/1641

COUNSEL: WG Dawe QC (Applicant) TA Game SC (Respondent)

SOLICITORS: SC Kavanagh, Solicitor for Public Prosecutions (Applicant) P Massey (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0521

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 24/04/03

IN THE COURT OF CRIMINAL APPEAL 2006/1641

JAMES J ROTHMAN J HARRISON J

THURSDAY 10 MAY 2007 R v MOHAMMAD DOUAR Judgment 1 JAMES J: This is an appeal by the Crown pursuant to s 5DA of the Criminal Appeal Act against a sentence imposed on the respondent which was reduced because the respondent undertook to assist law enforcement authorities, on the grounds that the respondent failed to fulfil his undertaking. The offence for which the respondent was sentenced was supplying 8.12 grams of a prohibited drug methylamphetamine on 28 July 2001. The respondent entered a plea of guilty to the offence. 2 On 24 April 2003 his Honour Judge Solomon of the District Court sentenced the respondent to a term of imprisonment of three years, with a non-parole period of two years three months, and ordered that the sentence be served by way of periodic detention. 3 After the sentence was imposed a complicated series of events occurred, including revocations of the order that the term of imprisonment be served by way of periodic detention, a rescission of a revocation order and the conviction of the respondent for further offences. It is unnecessary to go into the detail of these events. 4 The respondent sought to appeal to the Court of Criminal Appeal against the sentence imposed by Judge Solomon. On 22 December 2005 the reserved judgments of the members of the Court of Criminal Appeal were delivered. The Court of Criminal Appeal granted the respondent an extension of time in which to apply for leave to appeal against sentence, granted the respondent leave to appeal and allowed the appeal and remitted the proceedings to the District Court for the re-sentencing of the respondent in accordance with the Court of Criminal Appeal's judgment. 5 The ground on which the Court of Criminal Appeal allowed the appeal was that Judge Solomon in sentencing the respondent had made an order that the sentence be served by way of periodic detention, without first having considered the length of the term of the sentence which should be imposed. See R v Zamagias [2002] NSWCCA 17. The sentencing judge's omission to consider the length of the term of the sentence which should be imposed, before making an order that the sentence be served by way of periodic detention, had led to the imposition of a sentence which in the length of its term was manifestly excessive. 6 After the respondent's successful appeal to the Court of Criminal Appeal, the respondent came before Judge Solomon again for re-sentencing. 7 In remarks on sentence delivered on 10 March 2006 Judge Solomon noted that since he had first sentenced the respondent, the respondent had served 15 weeks of periodic detention and had served 43 days in custody after a revocation of the order for periodic detention. 8 His Honour devoted part of his remarks on sentence of 10 March 2006 to the subject of assistance provided and to be provided by the respondent to law enforcement authorities. 9 In 2004 the respondent had made statements to police giving an eyewitness account of a shooting and attempted murder on 8 May 2004 of a man named Michael Darwiche. In the statements the respondent identified the persons who had shot at Michael Darwiche as being three members of the Razzak family, whom the respondent knew and named. 10 In a letter placed before Judge Solomon on 10 March 2006 a high ranking police officer expressed the view that, without the assistance of the respondent, it would have been unlikely that the three persons named by the respondent would have been charged. 11 In his remarks on sentence of 10 March 2006 Judge Solomon also referred to an affidavit by the respondent which had been filed in the Court of Criminal Appeal in support of the respondent's appeal against the first sentence, in which the respondent had deposed to the fear he had for his own safety as a result of the assistance he had given. 12 His Honour concluded this part of his remarks on sentence by saying:- "Insofar as the assistance is concerned, it is of the highest order. A serious crime may have been solved with the assistance of the offender. The offender is prepared to give evidence. In addition, the offender's life is in jeopardy as a result of the assistance previously given and as a result of the assistance he will give. He is entitled to a discount of at least 50 per cent." 13 In his remarks on sentence Judge Solomon referred to the respondent's plea of guilty and found that the plea of guilty had utilitarian value and also evinced some contrition. 14 Judge Solomon accepted a submission by counsel for the respondent in the proceedings on sentence that an appropriate putative sentence would be a sentence of two years. Allowing a discount of 50 per cent would reduce the putative sentence to a sentence of one year. His Honour found special circumstances and divided the term of one year into a non-parole period of six months and a balance of term of six months. His Honour then made an order under s 12 of the Crimes (Sentencing Procedure) Act suspending the execution of the whole of the sentence. 15 His Honour did not in his remarks on sentence quantify the amount of the part of the discount for assistance which related to future assistance and he did not state any reason for suspending the sentence.