R v NAJEM [2008] NSWCCA 32

New South Wales Court of Criminal Appeal

CITATION: R v NAJEM [2008] NSWCCA 32

HEARING DATE(S): 16 October 2007

JUDGMENT DATE: 6 March 2008

JUDGMENT OF: Beazley JA at 1; Hulme J at 2; Latham J at 64

Allow the Crown appeal Quash the sentences imposed by Sweeney DCJ in respect of counts 1 and 2 DECISION: In respect of count 1, sentence the Respondent to imprisonment for a non-parole period of 4 years commencing on 7 September 2006 together with a further period of 3 years commencing on 7 September 2010 In respect of count 2 sentence the Respondent to imprisonment for a non-parole period of 3 years commencing on 7 September 2005 together with a further period of 1 year commencing on 7 September 2008 Record as the first date upon which the Respondent will become eligible for parole, 7 September 2010

PARTIES: Regina Mark Dean NAJEM

FILE NUMBER(S): CCA 2007/3149

COUNSEL: Crown: Mr G Rowling Respondent: Mr B Webb

SOLICITORS: Crown: S Kavanagh Respondent: Elias Tabchouri

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0866

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

- 19 - IN THE COURT OF CRIMINAL APPEAL 2007/3149

BEAZLEY JA HULME J LATHAM J

Thursday 6 March 2008 R v Mark Dean NAJEM Judgment 1 BEAZLEY JA: I agree with Hulme J. 2 HULME J: On 25 May 2007 the Respondent to this Crown appeal was sentenced by Sweeney DCJ on 3 counts, viz.- (1) That between 10 October 2004 and 9 December 2004 he conspired with Gabriel Zakhem, Adam Douglas Awit, Fouad Sassine and other persons to maliciously inflict grievous bodily harm upon Andrew Lyons with intent to do grievous bodily harm to Andrew Lyons. (2) On 3 December 2004 he possessed a prohibited pistol, not being authorised to do so, and (3) On 3 December 2004 he resisted Detective Senior Constable Hawkins in the execution of his duty. 3 The maximum penalty for count 1 is at large but the maximum penalty for the substantive offence of maliciously inflict grievous bodily harm with intent to inflict grievous bodily harms is, pursuant to s33 of the Crimes Act, 25 years. 4 The maximum penalty for the offence the subject of count 2 is, pursuant to s7 of the Firearms Act, 1996, 14 years imprisonment. Pursuant to s 54A et seq. of the Crimes (Sentencing Procedure) Act, that offence has a standard non-parole period of 3 years imprisonment. The maximum penalty for the offence the subject of count 3 is 5 years imprisonment. 5 The sentences imposed by her Honour were:- Count 3 - imprisonment for a fixed term of 6 months commencing on 7 September 2005. Count 2 – imprisonment for a non-parole period of 2 years from 7 September 2005 and an additional term of 1 year. Count 1 – imprisonment for a non-parole period of 2 years commencing on 7 September 2006 with an additional term of 3 years. 6 Thus the effective sentence imposed on the Respondent included non-parole periods totalling 3 years and an additional term of 3 years. 7 The circumstances of the Respondent's offending appeared in a statement of Agreed Facts. Accordingly, the Respondent's situation is to be approached on the basis of that evidence irrespective of whatever information may be before the Court in an appeal by Mr Elzakhem (sometimes referred to as "Zakhem"), whose sentences are the subject of another Crown appeal heard on the same day as the Crown appeal relating to this Respondent. In summary the circumstances of the Respondent's offending were as follows. 8 Zakhem was the owner of G & T Hairdressing Supplies Pty Ltd (hereinafter referred to as G & T). The company was involved in the importation and selling of hairdressing products. Following discovery by police that an organisation Beautopia was to be targeted by Zakhem for some retribution and that an Adam Awit (otherwise known as "Ellias") was involved, the latter's telephone was the subject of lawful inception. 9 On 1 and 2 December 2004 Najem and a co-offender Sassine conversed with Adam Awit and told him they had attended "Beautopia to light a fire at its premises and harm Lyons the owner but were unable to do so because the premises were closed and unoccupied." During an intercepted call Najem informed Awit that they intended to return to carry out the offences of 3 December 2004. 10 Also on 1 December police surveillance revealed Sassine's motor vehicle in the vicinity of Beautopia's premises and its 3 occupants walking nearby. 11 On the evening of 3 December two police officers posing as employees of Beautopia occupied its premises. At about 9.25 that night Sassine's vehicle parked nearby. Another co-offender Duncan dressed in a dark jumper with the hood pulled over his head, and Najem entered a rooftop carpark above Beautopia. Najem was armed with a fully loaded 9mm CZ semi-automatic pistol and took up a position as a lookout on the rooftop. 12 Duncan moved to outside the front of the premises and appeared to be making observations. He walked back to the rooftop carpark and then returned to the front of Beautopia. He was holding in his hand a shortened .22 calibre bolt action rifle loaded with a magazine. Duncan approached the front door which was open, but a steel security door remained locked. Duncan knocked, one of the police officers, Detective Sergeant Phillips approached, and Duncan asked him "Do you own the Rav 4" (a vehicle of this description was parked nearby). Shortly after this Duncan discharged a shot towards Detective Sergeant Phillips' leg, the shot just missing a knee. Duncan then fled. 13 At about the same time Najem was sighted on the rooftop carpark and was called upon by the police to stop, but ran off pursued by the police. He climbed over a railing fence and jumped down a distance of some 6 to 8 m being apprehended soon after landing. The fully loaded pistol was located on the ground next to him. Sassine, who was the getaway driver, was arrested after trying to drive around a police vehicle. 14 Judge Sweeney drew the inference that Najem was to receive some benefit from a sum of $10,000 that had been provided by Zakhem to Vincent Awit (another conspirator) although her Honour was unable to quantify the amount. Her Honour also drew the inference that Najem knew that Duncan was intending to use the rifle in the attack. While accepting that Najem's role was serious, her Honour described his role as at the lower reaches of the conspiratorial heirarchy 15 So far as the second offence is concerned, her Honour said that the fact the pistol was loaded and in Najem's possession at the scene of the carrying out of the conspiracy, and available for use, led to the conclusion that that offence was in the middle range of seriousness. Her Honour said that she accepted the distinction made by the Crown that the situation was different from one where a pistol is simply under a bed, unloaded. 16 Her Honour assessed that the third offence was at the low end of those constituting resistance to a police officer. In fact no evidence was put before her Honour as to the extent of the resistance or indeed, apart from the Respondent's plea, as to the fact of resistance. Subjective circumstances 17 Najem was born in November 1980. His antecedent report records that in November 2001 he was fined and disqualified for driving whilst his licence was suspended. In June 2002 he was fined for offences of driving an unregistered and uninsured vehicle whilst disqualified, driving a vehicle displaying a misleading number plate and being in possession of a motor vehicle suspected of being stolen. The period of disqualification was increased. In March 2003 he was fined for a similar series of offences and again the period of disqualification increased. He was also placed on a 2 years s9 bond at that time. In February 2004 he was sentenced to 12 months periodic detention, a sentence confirmed on appeal when it was ordered that the sentence should commence on 24 July 2004. In May and October 2005 respectively, he was charged with and convicted of larceny and maliciously damage or destroy property.