New South Wales Court of Criminal Appeal CITATION: SLEIMAN v R [2008] NSWCCA 117 HEARING DATE(S): 19 May 2008 JUDGMENT DATE: 2 June 2008 JUDGMENT OF: James J at 1; Hislop J at 49; Hoeben J at 50 DECISION: Grant leave to appeal against sentence. Dismiss the appeal against sentence. CATCHWORDS: CRIMINAL LAW - Sentencing - no question of principle LEGISLATION CITED: Crimes (Sentencing Procedure) Act Crimes Act CASES CITED : R v Fidow [2004] NSWCCA 172 PARTIES: SLEIMAN, Fadi v R FILE NUMBER(S): CCA 2007/4929 COUNSEL: I A Todd (Applicant) J Dwyer (Crown) SOLICITORS: Nicopoulos & Associates (Applicant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/21/0395 LOWER COURT JUDICIAL OFFICER: Sweeney DCJ LOWER COURT DATE OF DECISION: 26 October 2007 IN THE COURT OF CRIMINAL APPEAL 2007/4929 JAMES J HISLOP J HOEBEN J MONDAY 2 JUNE 2008 SLEIMAN, Fadi v R Judgment 1 JAMES J: Fadi Sleiman applied for leave to appeal against a sentence imposed on him in the District Court by her Honour Judge Sweeney on 26 October 2007 on a charge of maliciously damaging property. Her Honour imposed a sentence of a non-parole period of 18 months commencing on 26 October 2007, the date of sentencing, and expiring on 25 April 2009 and a balance of the term of six months. 2 Maliciously damaging property was an offence under s 195(1)(a) of the Crimes Act for which the maximum penalty was imprisonment for five years. There was no standard non-parole period. Facts of the offence 3 In the proceedings on sentence there was an agreed statement of facts and the applicant also gave evidence. The following statement of the facts of the offence is derived from her Honour's statement of the facts of the offence in her remarks on sentence, which was itself derived from the statement of agreed facts and the evidence given by the applicant in the proceedings on sentence. 4 The applicant was the sole director of a company which carried on business as a vehicle smash repairer. A manager was employed to conduct the business. 5 The owner of a Mercedes-Benz vehicle, having noticed deep scratch marks to the paint work of the vehicle and having been instructed by the comprehensive insurer of the vehicle to have it repaired, took the vehicle to the applicant's business to be repaired. 6 The owner of the vehicle was dissatisfied with the work done to the vehicle by the applicant's business and, after an assessment by a representative of the insurer of the quality of the repair work done by the applicant's business, the owner took the vehicle away from the applicant's business to another vehicle repair business. 7 On the evening of 5 December 2005 the owner of the Mercedes-Benz drove it to his home and parked it in a garage at the home. That night another vehicle was also parked in the garage. 8 On the night of 5 December 2005 police intercepted telephone calls between the applicant and a man named Mohamed Nahle. It was apparent from the telephone calls that the applicant had recruited Nahle to do damage to the Mercedes-Benz vehicle. 9 In the telephone calls the applicant gave Nahle instructions about damaging the vehicle. Nahle, calling from the garage at the home, asked for instructions about which of the vehicles in the garage he was to damage. In a subsequent telephone call Nahle reported to the applicant that he had damaged the vehicle and asked for payment for what he had done. The applicant told Nahle to come to the applicant's business premises the following day, when he would be paid. 10 The next morning the owner of the Mercedes-Benz vehicle discovered that it had been extensively damaged. In her remarks on sentence her Honour summarised the damage as deep scratches on the bonnet, all side panels, all doors, the roof and the lid of the boot and some form of liquid had been applied to the bonnet, the front quarter panel and front bumper bar, causing the paint work to change in colour and bubble. 11 The insurer of the vehicle arranged for the vehicle to be repaired by another repairer and in the proceedings on sentence sought compensation in the amount of $18,299.43, being part of the costs of the repairs. Her Honour made a compensation order in this sum. 12 In her remarks on sentence her Honour commented on the objective facts of the offence as follows:- "The facts of the offence strike me as indicating a serious offence of particularly callous criminality in taking this kind of action over a business dispute, to damage the vehicle the subject of the dispute, and also in distancing himself from the actual hands-on work by recruiting Mr Nahle, a younger person of not great intelligence who was perhaps susceptible to being recruited to do such work for a small sum of money because of his addiction to drugs." 13 Earlier in her remarks on sentence her Honour had interpolated, in her statement of the facts of the offence, that she had previously conducted a hearing for the sentencing of the co-offender Nahle but, at the time of sentencing the applicant, had not yet sentenced Nahle. In that part of her remarks her Honour said:- "Mr Nahle is a young man presently twenty-five, and at the time of the offence was a person addicted to drugs, and is also a person not of great intelligence. I say that because it seems to me that Mr Sleiman took advantage of his knowing Mr Nahle to recruit Mr Nahle to perform the actual damaging work and therefore distance himself from performing the actual hands-on work." 14 The sentencing judge accepted that at the time of committing the offence the applicant had been depressed and subject to stress in his business. Subjective features 15 In her remarks on sentence the sentencing judge noted some of the subjective features of the applicant. 16 At the time of committing the offence the applicant was in a stable de-facto relationship. There are two children of the relationship, who were aged 7 and almost 3 at the time the applicant was sentenced, both of whom have health problems. The applicant was the sole bread winner in the family, being employed up to the time of sentencing as a panel beater in another business. The applicant's partner suffers from chronic depression and anxiety. Her Honour accepted that there would be hardship for the applicant's family, if he was imprisoned, although her Honour noted that both the applicant and his partner have siblings in Australia. 17 The applicant had a criminal history, which was not extensive. However, he had been charged with offences of obtaining money by deception committed in December 2004 and he had been on bail for those offences at the time he committed the present offences. On 1 December 2006 the applicant was sentenced to a suspended term of imprisonment for one of the offences of obtaining money by deception, the other offences being taken into account on a form pursuant to Div 3 of Pt 3 of the Crimes (Sentencing Procedure) Act. Judge Sweeney rightly regarded the fact that the applicant had been on bail for other offences when he committed the present offence as an aggravating factor. 18 Her Honour allowed a discount of 15 per cent for the applicant's plea of guilty, which was not an early plea of guilty, and no complaint was made on this application about the amount of the discount allowed by her Honour. 19 Her Honour accepted that the applicant was remorseful. Submissions in the sentence proceedings 20 In her remarks on sentence the sentencing judge dealt with a number of submissions which had been made to her by counsel for the applicant. 21 A submission had been made that there had been a delay in sentencing the applicant, because his case had been tied to that of the co-offender Nahle, who had also been charged with a number of unrelated offences, on some of which he had stood trial. The sentencing judge found that there had not been "an inordinate delay" in the sentencing of the applicant. 22 A submission had been made that the offence could have been dealt with in the Local Court. Initially, the applicant had been charged with a more serious offence and he had been committed for trial in the District Court on that more serious charge. Her Honour thought it was "borderline" whether the charge under s 195 could have been appropriately dealt with in the Local Court, when regard was had to the seriousness of the facts of the offence. 23 The sentencing judge rejected a submission that a penalty other than a term of imprisonment could be imposed, on the grounds that there was a need for the penalty to give effect to the sentencing purpose of general deterrence and there was no mitigating factor, objective or subjective, which would warrant the imposition of a penalty more lenient than imprisonment. Grounds of appeal 24 There were four grounds of appeal against sentence. It is convenient to take the more specific grounds first, retaining the numbering in the notice of appeal. 2. The sentence imposed displayed disparity with that imposed on the co-offender Nahle. 25 As noted earlier in this judgment, the sentencing judge, at the time of sentencing the applicant, had conducted a hearing for the sentencing of the co-offender Nahle for the same offence of maliciously damaging property and for a number of unrelated offences but had not yet passed sentence on Nahle. A copy of the remarks her Honour made when she did sentence Nahle on 1 December 2006 are included in the appeal papers. 26 Apart from sentencing Nahle for the offence of maliciously damaging property, her Honour also sentenced Nahle for several offences of armed robbery, an offence of stealing and several offences of supplying prohibited drugs. 27 In sentencing Nahle her Honour took the course of making the sentence she imposed for the offence of maliciously damaging property the first of the sentences to commence and she imposed a sentence for that offence of a fixed term of imprisonment of 18 months commencing on 22 February 2007. Her Honour then set sentences of fixed terms of imprisonment of 18 months or two years commencing on 22 August 2007 or 22 August 2008 for other offences, the last of these sentences expiring on 21 February 2012. Her Honour set a sentence containing a non-parole period and a parole period for one of the offences of armed robbery, consisting of a non-parole period of two years commencing on 22 February 2010 and a parole period of three years commencing on 22 February 2012. 28 This ground of appeal was based on what was submitted to be a lack of parity between the sentence imposed on the applicant of a non-parole period of 18 months and a balance of the term of six months and the sentence imposed on the co-offender of a fixed term of imprisonment of 18 months. 29 I am unable to agree that the two sentences demonstrate a lack of parity. The sentence of a fixed term of imprisonment of 18 months imposed on the co-offender was equal to the non-parole period of 18 months imposed on the applicant. There would have been no point in setting a parole period in the sentence imposed on the co-offender, because the parole period would have been subsumed in the fixed terms of imprisonment imposed on the co-offender for other offences. It is a common sentencing practice when sentencing for a number of offences to impose a series of fixed terms of imprisonment and then impose a final sentence consisting of a non-parole period and a period during which the offender would be eligible for release on parole. 30 In my opinion, the conclusion that the sentence imposed on the applicant and the sentence imposed on the co-offender did not display any lack of parity, is not affected by the circumstance that part of the sentence imposed on the co-offender was made concurrent with other sentences imposed on the co-offender. 31 I would reject this ground of appeal. 3. The sentencing judge erred in making a factual finding not open to her. 32 This ground of appeal was based on the two parts of the sentencing judge's remarks on sentence which I have already quoted, in which her Honour referred to Nahle's age, his lack of intelligence and his drug addiction and said that the applicant had taken advantage of Nahle. 33 It was submitted on behalf of the applicant that there was no evidence of these matters in the agreed statement of facts or in any other evidence in the proceedings for the sentencing of the applicant. 34 It was not suggested that any of these matters was untrue. Her Honour had apparently derived her knowledge of them, from having presided at the trial of Nahle and from having conducted the sentence hearing for Nahle. 35 What was submitted on behalf of the applicant was that there had been a denial of procedural fairness, in that the sentencing judge had taken into account facts of which there was no evidence in the proceedings for the sentencing of the applicant and as to which counsel for the applicant had not been given any opportunity of being heard. 36 I accept that the sentencing judge should not have had regard to matters of which there was no evidence in the proceedings for the sentencing of the applicant and as to which counsel for the applicant had not been given any opportunity of making submissions. 37 However, I do not consider that this Court should find that the matters complained of had any material effect on the sentencing process. It was clearly open to her Honour to find that the applicant had recruited Nahle to do the actual acts of damaging the vehicle, that the applicant had recruited Nahle so as to distance himself from the commission of the offence and that the applicant gave, and Nahle looked to the applicant to give, instructions about the commission of the offence. Nahle was clearly adjudged by the applicant to be a suitable person to carry out what the applicant wanted to be done. Whatever the subjective qualities of Nahle were which made Nahle a person adjudged by the applicant as suitable, do not appear to me to be material. On the evidence which was available in the proceedings on sentence her Honour could properly conclude that the applicant had taken advantage of Nahle. 38 I would reject this ground of appeal. 4. The sentencing judge erred in not finding special circumstances. 39 It was submitted on behalf of the applicant that there were a number of features of the case which would have supported a finding of special circumstances, including that the applicant had not previously been in custody and that he was the sole earner for his family but the sentencing judge had failed to refer to special circumstances in her remarks on sentence. 40 I do not consider that this ground of appeal should be upheld. The sentencing judge was not asked in the proceedings on sentence to make any finding of special circumstances. None of the circumstances pointed to by counsel for the applicant, either singly or in combination, are sufficiently compelling to require a finding of special circumstances. 41 In its submissions the Crown referred, appropriately, to the warning given by the Chief Justice in R v Fidow [2004] NSWCCA 172 against excessive finding of special circumstances by sentencing courts. 42 I would reject this ground of appeal. 43 I will now turn to the first ground of appeal:- 1. The sentence imposed was manifestly excessive. 44 It was submitted on behalf of the applicant that, if the sentencing judge had allowed a discount of 15 per cent for the utilitarian value of the plea of guilty, as her Honour said she had, her Honour's starting point, before allowing the discount, would have been close to 2 ½ years, that is half the maximum sentence for the offence. 45 It was submitted that little loss or damage had ultimately resulted, because the vehicle had been repaired and a compensation order had been made by the sentencing judge. The sentencing judge had accepted in her remarks on sentence that the applicant had made an offer to make restitution but his offer had not been accepted. 46 Counsel referred to subjective features of the applicant which, it was submitted, should have moderated the penalty to be imposed. Counsel pointed to her Honour's view that the case was a "borderline" one for being dealt with in the Local Court. It was submitted that her Honour had given too much emphasis to the sentencing purpose of general deterrence and had not sufficiently considered the sentencing alternatives to full-time imprisonment. 47 In my opinion, the sentence imposed by her Honour could not be held to fall outside a proper exercise of her Honour's sentencing discretion. The offence involved planned and organised criminal activity, in which another person was recruited by the applicant and directed by the applicant to do the actual acts constituting the offence, so as to distance the applicant from the commission of the offence. I agree with her Honour's characterisation of the offence as displaying "particularly callous criminality". An important aggravating factor was that the offence was committed while the applicant was on conditional liberty. 48 I would reject this ground of appeal and, as I have rejected all the grounds of appeal, I would, while giving leave to appeal against sentence, dismiss the appeal against sentence. 49 HISLOP J: I agree with James J. 50 HOEBEN J: I agree with James J and the orders he proposes. ********** 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.