New South Wales Court of Criminal Appeal CITATION: Sassine v R [2008] NSWCCA 146 HEARING DATE(S): 13 May 2008 JUDGMENT DATE: 30 June 2008 JUDGMENT OF: Beazley JA at 1; Johnson J at 2; McCallum J at 3 1. Leave to appeal granted. 2. Appeal allowed, in part. DECISION: 3. The sentence imposed by Sweeney DCJ in respect of count 1 is quashed. 4. In respect of count 1, the applicant is sentenced to imprisonment for a non-parole period of 3 years to commence on 1 September 2007 together with an additional term of 2 years. 5. I record as the first date upon which the respondent will become eligible for parole 31 August 2010. CATCHWORDS: CRIMINAL LAW - conspiracy offences - SENTENCING - purported duplication of sentence on counts on indictment and matters on Form 1 - special circumstances - parity - partial resentencing LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 CATEGORY: Principal judgment CASES CITED : Pearce v The Queen (1998) 194 CLR 160 R v Burke [2002] NSWCCA 353 PARTIES: Fouad Sassine (Applicant) Regina (Respondant) FILE NUMBER(S): CCA 2007/2961 COUNSEL: Mr B Cross (Applicant) Mr L Lamprati SC (Respondent) SOLICITORS: Mr S Kavanagh (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0861 LOWER COURT JUDICIAL OFFICER: Sweeny DCJ LOWER COURT DATE OF DECISION: 4 May 2007 - 12 - IN THE COURT OF CRIMINAL APPEAL 2007/2961 BEAZLEY JA JOHNSON J McCALLUM J 30 JUNE 2008 FOUAD SASSINE v R Judgment 1 Beazley JA: I agree with McCallum J. 2 Johnson J: I agree with McCallumJ. 3 McCallum J: The applicant seeks leave to appeal against the sentences imposed on him in the District Court on 4 May 2007 when he appeared for sentence after pleading guilty to an offence of conspiring to maliciously inflict grievous bodily harm with intent to do grievous bodily harm and offences of assaulting and resisting a police officer in the execution of his duty. Two other offences, namely assaulting and resisting a different police officer in the execution of his duty, were taken into account on a Form 1 at the request of the applicant pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. 4 The conspiracy offence is a common law offence for which the penalty is at large. However, it is generally considered that the statutory maximum penalty for the offence the subject of the conspiracy indicates the appropriate range. The statutory maximum penalty for maliciously inflicting grievous bodily harm with intent to do grievous bodily harm is 25 years imprisonment. The statutory maximum penalty for each of the offences of assaulting and resisting a police officer in the execution of his duty is 5 years imprisonment. 5 The sentencing judge imposed fixed terms of 12 months imprisonment commencing on 1 May 2007 for each of the offences on the indictment of assaulting and resisting a police officer. Those sentences were concurrent with each other. In respect of the conspiracy offence, her Honour made a finding of special circumstances and imposed a sentence of 5 years comprising a non-parole period of 3 years with a balance of term of 2 years. The sentence in respect of that offence was accumulated by 6 months on the two fixed terms and was to commence on 1 November 2007. Her Honour specifically took the Form 1 matters into account when dealing with the conspiracy offence. Circumstances of the offences 6 The sentencing judge relied on an agreed statement of facts together with some additional facts from other material tendered at the sentence hearing. The agreed facts, in summary, were that one of the co-conspirators, a Mr Zakhem, ran a business importing and selling hairdressing products. Mr Zakhem was in dispute with a Mr Lyons, a former business partner who had become a competitor in the same line of business. The conspiracy was to seriously injure Mr Lyons. Mr Zakhem instructed Mr Awit to arrange the assault. Mr Awit in turn instructed his nephew, Mr Elias, to make the arrangements. Mr Elias recruited three men including the applicant to carry out the assault. The applicant's role was to drive the two other men, Christopher Duncan and Mark Najem, to and from Mr Lyons' business premises, a shop named "Beautopia". 7 Two nights in a row the three men went to "Beautopia" but they were unable to carry out the assault because the premises were closed and unattended. In the meantime, police had become aware of the conspiracy and had commenced conducting surveillance. On the third night, two police posed as Mr Lyons and his employees at "Beautopia". The applicant drove Mr Duncan and Mr Najem to a nearby street. Mr Najem, armed with a pistol, went to act as lookout on a rooftop car park above the shop. Mr Duncan, armed with a shortened rifle, went to the front door where he spoke to the policeman who was posing as Mr Lyons, Detective Sergeant Phillips. Mr Duncan discharged the rifle towards Detective Phillips' legs and the shot narrowly missed his knee. 8 Mr Duncan and Mr Najem were pursued by police and arrested. The applicant was arrested after trying to drive his car around a police car blocking his exit. As police tried to remove him from the car, the applicant pushed them away and kicked out at them with his legs. He continued to struggle with two police officers, Detective Lewis and Detective Law, and all three men fell to the ground a number of times. 9 In an interview with police, the applicant said that he was to receive $1,500 for his part in "the job". 10 The sentencing judge was not satisfied beyond reasonable doubt that the applicant was aware the two co-accused were carrying guns. Her Honour declined to rely on that as a matter of aggravation. Her Honour also declined to rely on the fact that the conspiracy offence was part of a planned criminal activity as an aggravating factor, finding that the degree of planning involved was inherent in the formation of a conspiratorial agreement and should not be double counted as an aggravating factor. Her Honour made the same finding in respect of a third aggravating factor relied on by the Crown, namely that the offence was committed in company. 11 Her Honour stated that, objectively, the conspiracy offence was very serious. Her Honour expressed the view that agreeing to participate in serious violence on a stranger for personal gain is callous, serious criminality. Her Honour found that the applicant was in the lower reaches of the conspiratorial hierarchy. 12 As to the assaults on police in the execution of their duty, her Honour observed that those are serious offences that should include a significant element of general deterrence. The particular offences her Honour held were at the lower end of assaults as neither police officer suffered any injury. Her Honour held that the offences of resisting were in the "medium range" of resisting conduct. Circumstances of the offender 13 The applicant was eighteen years old at the time of the offences and twenty-one at the time of the sentence hearing. He had no prior criminal history. 14 A report from a psychiatrist tendered at the sentence hearing described the applicant's co-operation in a programme devised for him by the psychiatrist as poor. The psychiatrist attributed the applicant's failure to adhere to instructions to his state of mind, which the psychiatrist said was characterised by mental retardation. 15 The psychiatrist also referred to a history of substance abuse involving marijuana and amphetamine derivatives. 16 The sentencing judge set out the psychiatrist's report in considerable detail and recorded his opinion, in summary, that the applicant had a history and diagnosis of developmental delay and that his functionally compromised brain was more vulnerable to the effect of drugs. Her Honour noted the psychiatrist's view that the applicant's developmental delay is treatable and that abstinence from drugs was necessary to treating his poor impulse control, while noting that his condition compromises his reliability to attend appointments and treatment. 17 The sentencing judge accepted that the applicant's developmental delay or mental retardation which caused him to be easily led or influenced by others, and impulsive, may have caused him to become involved in the conspiracy more easily than a person of high intellectual functioning. Her Honour noted, however, that the applicant's level of intellectual functioning had not prevented him from participating in the community and maintaining employment. 18 Her Honour referred to the relevant authorities and concluded that the applicant's borderline retarded level of intellectual functioning with its attendant impulsivity moderated his moral culpability to "a slight to moderate extent rather than a great extent". Duplication of sentence 19 The first ground of appeal is that the sentencing judge erred: "in duplicating the sentences imposed for [the counts of assaulting and resisting police on the indictment] with the outcome of the matters taken into account on the Form 1." 20 As this ground was developed, the complaint was not so much one of duplication as of inadvertent additional accumulation. The four offences were all part of the one incident, resulting from the fact that the applicant both assaulted and resisted each of the two police officers who arrested him. The facts were that the applicant was in his car when apprehended by Detective Lewis and Detective Law. He struggled violently with both of them as they removed him from the car, pushing them away and kicking out at them with his legs. In the face of the obvious connection between those four offences, it complicated the sentencing process to have them divided between the indictment and the Form 1. 21 It is apparent from the remarks on sentence at page 26 that her Honour's intention was to effect some partial accumulation to reflect the fact that the acts of resisting and assaulting police entailed criminality separate from and additional to the criminality entailed in participation in the conspiracy. In respect of the two counts on the indictment, her Honour said "the assaults and resist arise out of the same acts although their elements are different and it is appropriate that those two sentences be concurrent with each other". Her Honour does not appear to have brought to mind, in that context, the matters on the Form 1. 22 In dealing with the two matters on the Form 1, her Honour noted that she was required to increase the sentence for the conspiracy offence to a greater sentence than would have been imposed if she were sentencing for that count alone. The sentence imposed for that count was accumulated by 6 months on the sentences imposed for the two other charges on the indictment. It follows that the effect of the sentences was that, in addition to the 6 months accumulation intended to reflect the additional criminality of assaulting and resisting police, there was some accumulation of the sentence for the offences against Detective Law (taken into account on the conspiracy count) on the sentence for the offences against Detective Lewis, and a total accumulation of more than 6 months. 23 Mr Cross, who appeared for the applicant, argued that that was inappropriate having regard to the principles in Pearce v The Queen (1998) 194 CLR 160. Owing to the level of generality of the facts before the sentencing judge in respect of the four offences involving the two detectives, it is difficult to ascertain whether in this case a single act was an element of each of two or more different offences involving the two police so as to attract the direct application of the decision in Pearce. Nonetheless, in my view, there is force in Mr Cross's submission. There is nothing in the facts to suggest a distinction between the acts that constituted the offences against Detective Lewis and those constituting the offences against Detective Law. 24 Further, there is nothing in the reasons of the sentencing judge to suggest that her Honour intended to accumulate any part of the sentences imposed in respect of the offences against Detective Lewis on the sentences imposed in respect of the offences against Detective Law. To the extent that there is any indication on that issue in the remarks on sentence, it is to the contrary. Nonetheless, having regard to the structure of the sentences imposed, they must entail some accumulation of that description, probably as a result of the way in which the offences were presented to the sentencing judge, which appears to have led her Honour into inadvertent error in that limited respect. The consequences of that aspect of the sentence are addressed below. Special circumstances 25 Ground 2 is that her Honour erred in not adequately taking into account her finding of special circumstances. The sentencing judge found special circumstances on the basis of the applicant's youth, the fact that it was his first time in custody and the need for him to receive treatment under supervision, as recommended by the psychiatrist, for treatable symptoms of his mental condition and drug use. In reliance on that finding, her Honour imposed a sentence in which the balance of the term of the sentence exceeded one third of the non-parole period in accordance with the provisions of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 26 It was submitted that the sentence produced an effective non-parole period of 65% of the total sentence (I note that the percentage properly calculated is in fact 63.6%). In the absence of a finding of special circumstances, the outcome of the ratio required by s 44 would have been a non-parole period of 75% of the total sentence. The gist of the applicant's complaint is that the extent of the variation was inadequate. 27 Separately, it was put that there was disparity between the percentage adjustment in the sentence imposed on the applicant and those imposed on the two co-offenders, Mr Najem and Mr Duncan which, it was submitted, were respectively 60% and 62.5%. 28 These arguments may be disposed of briefly. The judgment of the extent of the variation to the statutory ratio is one that involves the exercise of a broad discretion with which, absent error, this Court should not interfere. In my view, the extent of the variation achieved in the structure of the sentences in the present case was plainly open in the exercise of her Honour's judicial discretion. 29 Further, in my view, it cannot be said that the applicant has a justified sense of grievance in respect of the supposed disparity between the percentage of the total term represented by the non-parole periods of his own sentence and those of Mr Najem and Mr Duncan. All of the ratios are within a range of 3.6 percent of each other. The co-offenders were sentenced for different conduct on different evidence. Sentencing is not so precise an art as to warrant the conclusion that a smaller degree of variation was the only correct outcome. Parity 30 Ground 3 is that the sentencing judge erred in failing to observe parity requirements in relation to sentences imposed on co-offenders. This ground was to a large extent overtaken by the fact that, since the lodging of this appeal, there have been successful Crown appeals in respect of two of the co-offenders, Mr Najem and Mr Zakhem. Following the determination of those appeals, Mr Cross acknowledged that the only remaining basis for the argument (leaving aside the specific complaint as to disparity in the composition of the sentences discussed above) was the comparison with the sentence imposed on Mr Duncan. 31 Mr Duncan was armed with a shortened .22 calibre bolt action rifle with which he shot at the police officer posing as Mr Lyons, narrowly missing his knee. Further, when police announced their presence, Mr Duncan ran and turned to fire a shot towards a different police officer. He was caught by a police dog. 32 The significant feature of the sentences imposed on Mr Duncan was that he pleaded guilty to separate offences in respect of his possession of the firearm, the discharge of the firearm with intent to do grievous bodily harm to the policeman posing as Mr Lyons and the use of the firearm to prevent his lawful apprehension. In respect of the conspiracy offence, he was sentenced to a non-parole period of 3 years with a balance of term of 2 years, the same sentence as was imposed on the applicant. For the offence of shooting at the man he thought was Mr Lyons, he was sentenced to a non-parole period of 3 years with a balance of term of 2 and a half years. The sentence imposed for the use of the gun when he was being chased by police attracted an additional term of 2 years commencing at the expiration of the non-parole period for the conspiracy count, so that the total non-parole period was 5 years. 33 The applicant's complaint in respect of that sentence is that, despite the fact that Mr Duncan was armed and actually fired the weapon in an attempt to injure the person he believed to be the intended victim, the sentencing judge equated the criminality of the applicant on the conspiracy charge with that of Mr Duncan. That complaint ignores the separate offence, which resulted in an additional sentence, in respect of the use of the firearm. 34 Further, as already noted, the sentence imposed on the applicant for the conspiracy offence took into account the offences of assaulting and resisting Detective Law. It is a premise of the first ground of appeal discussed above that the sentence imposed on the applicant was increased on that account. In addition, as noted in the submissions for the Crown, Mr Duncan had the benefit of findings that he was recruited to the conspiracy at a late stage by the applicant, that his reward was to be the cancellation of a small gambling debt owed to the applicant and that his contrition was genuine. 35 In my view, a comparison between the sentences imposed on Mr Duncan and on the applicant for the conspiracy offence does not demonstrate that a reasonable person, looking at the circumstances of the case, would regard his grievance as justified so as to warrant the intervention of this Court. Undue severity of sentence 36 The remaining grounds of appeal were dealt with together in the applicant's submissions and it is convenient to adopt the same approach. The applicant submitted that the sentence imposed was unduly severe (ground 7) and, in particular, that the sentencing judge gave insufficient weight to the applicant's mental disability (ground 4), to evidence of remorse (ground 5) and to assistance given to police (ground 6). 37 With no disrespect to Mr Cross, who developed this submission carefully and in considerable detail, it amounted in substance to an invitation to this Court to exercise the sentencing discretion afresh. The weight to be given to the various factors identified in the submissions was a matter for the judgment of the sentencing judge involving the exercise of a broad discretion. The sentencing judge adverted to all of the matters identified by the applicant and, in a thorough and carefully reasoned judgment, gave them the weight which was appropriate in her Honour's view. No basis for interfering with the exercise of that discretion has been identified. 38 The objective seriousness of these offences cannot be ignored. Her Honour rightly took the view that participation in the planned offence of seriously assaulting a stranger in response to a solicitation by a business rival calls for a high degree of denunciation by the community. Outcome of the appeal 39 It remains to consider what should be the outcome of this appeal having regard to the discussion of ground 1 above. For that purpose, it is necessary to consider the operation of s 6(3) of the Criminal Appeal Act 1912, which provides: "On an appeal under s 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal" 40 In R v Burke [2002] NSWCCA 353, Sperling J, with whom Giles JA and Hidden J agreed, said in respect of the operation of s 6(3): " Another example of a special case would be an error which has a narrow and discrete effect on the result, such as, for example, an omission to make an order that the offender is to be released on the expiration of the non-parole period where the sentence is not more than three years. In such a case, the sentence is relevantly more severe than it should have been, in that the offender might be required to serve longer than the non-parole period contrary to law. The appeal would be allowed in such a case, and the error would be corrected by adding the necessary order without the need to re-sentence the appellant afresh, even if the appellate court would have imposed a different sentence were it re-sentencing the appellant afresh. Again, that would be the situation unless the sentence was manifestly excessive, in which case the sentence would be set aside on that ground and the appellant would be re-sentenced." 41 In my view, this is a special case of the kind described by Sperling J. The sentence is not manifestly excessive but an error has occurred which has a narrow and discrete effect on the result, namely, the inadvertent partial accumulation of the sentence imposed for the offences against one of the two detectives on the sentence imposed for the offences against the other detective taken into account with the conspiracy offence. That is an error which, in my view, may be corrected without the need to re-sentence the appellant afresh. Whilst it is not possible to ascertain the precise extent of the additional accumulation, in my view the appropriate result is to eliminate a third of the accumulation in the sentences imposed. 42 The orders I propose are: 1. That leave to appeal be granted. 2. That the appeal be allowed, in part. 3. That the sentence imposed by Sweeney DCJ in respect of count 1 be quashed. 4. In respect of count 1, that the applicant be sentenced to imprisonment for a non-parole period of 3 years to commence on 1 September 2007 together with an additional term of 2 years. 5. I record as the first date upon which the respondent will become eligible for parole 31 August 2010. ********** 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.