R v Houri [2008] NSWCCA 327

New South Wales Court of Criminal Appeal

CITATION: R v Houri [2008] NSWCCA 327

HEARING DATE(S): 16 December 2008 JUDGMENT OF: Campbell JA at 29; Grove J at 1; Howie J at 30

EX TEMPORE JUDGMENT DATE: 16 December 2008

DECISION: Appeal allowed. Respondent resentenced.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Crown appeal - Fire set in store in order to make insurance claim when business failing - Offender's significant prior record - Sentences and order for suspension manifestly inadequate

LEGISLATION CITED: s 12 Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED : Alameddine v R [2006] NSWCCA 317

PARTIES: REGINA - Appellant Ralph HOURI (aka Samuel TENESELI) - Respondent

FILE NUMBER(S): CCA 2007/11325

COUNSEL: P Calvert - Appellant/Crown R Sweet - Respondent

SOLICITORS: S Kavanagh - Public Prosecutions Stojanovic Solicitors - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/0370

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 17 October 2008

IN THE COURT OF CRIMINAL APPEAL CCA 2007/11325

CAMPBELL JA GROVE J HOWIE J

16 December 2008 REGINA v Ralph HOURI (aka Samuel TENESELI) JUDGMENT 1 GROVE J: This is an appeal by the Crown asserting the manifest inadequacy of sentences imposed by Solomon DCJ in Sydney District Court. Between 12 and 19 August 2008 the respondent stood trial on an indictment charging dishonestly damaging property by fire and two counts of making a false statement with intent to obtain a financial advantage. The prescribed maximum penalties for those offences are 14 years and 5 years imprisonment respectively. 2 As he was entitled, the respondent did not give evidence at trial but, after conviction, he gave evidence and agreed that he now accepted that he "participated in the offence" of which he had been found guilty by the jury. On 14 October 2008 his solicitors had arranged for him to be examined by a psychologist Dr Rowe, who prepared a report which was tendered in evidence. The respondent had read the report and testified that it provoked an insight and a realization to him of why he committed the offences. 3 On 17 October 2008 his Honour imposed sentences of 12 months, 6 months and 3 months imprisonment in respect of the sequence of offences, all of which he suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. 4 In about August 2005 the respondent had negotiated the purchase of a business, which operated as a convenience store in Parramatta. He entered a lease with the owner of the premises (who was not the vendor of the business) and became obligated in respect of rent. On 2 November 2005 the respondent made a proposal to Australian Unity General Insurance for a business insurance policy which was accepted and a policy issued. The policy provided for a burglary cover of $30,000 and a fire cover of $55,000. Pursuant to the policy however, the latter was split into ingredients amounting to cover of $5,000 for stock, $20,000 for tobacco products and $30,000 for other store contents. 5 The business was not successful and the respondent fell into immediate arrears of rent and he renegotiated with the landlord. 6 The respondent was a user of the prohibited drug heroin. About one week prior to 27 December 2005 he spoke to David Burrell-Jones, a heroin addict from whom he occasionally obtained the drug. He asked him about "doing an insurance job" on the convenience store. The respondent agreed to pay him $10,000 to set fire to the store. Burrell-Jones enlisted George Lyras, another heroin addict, to assist him in return for a half share in the promised fee, which was to be sourced from an anticipated insurance payout. 7 The respondent obviously became aware of the intended participation of Lyras, and on the night of 26-27 December he drove both of them to a service station where Burrell-Jones purchased a can of petrol. The group then proceeded to the store at Parramatta. The respondent remained in the vehicle and the other two entered the store. 8 Burrell-Jones spread the petrol about the premises. Lyras proceeded to gather some cigarettes which he intended to take. There was a misunderstanding between them and Burrell-Jones ignited the petrol and Lyras became trapped in the resultant fire. His clothes became inflamed and naked and badly burned, he made an escape from the building. Burrell-Jones drove him to Westmead Hospital and loaned him a pair of shorts so that he could walk into the accident and emergency centre. Once Lyras had done this the other two left. The respondent was at the time riding in the passenger seat. Lyras was admitted to hospital and later transferred to Concord Hospital Burns Unit. 9 Burrell-Jones drove to Warwick Farm where he alighted from the vehicle and the respondent took over and drove himself home. 10 Burrell-Jones and Lyras were arrested and charged with dishonestly damaging property by a fire with a view to financial gain. They each pleaded guilty. Burrell-Jones appeared before Ellis DCJ at Parramatta District Court on 30 July 2007 and he was released upon entering a bond pursuant to s 9 of the sentencing legislation to be of good behaviour for 2 years. Lyras was dealt with in the Drug Court and on 28 February 2008 he was sentenced for this offence to a total term of 9 months with a non-parole period of 3 months. 11 It is important to note that, although the unintended injuries suffered by Lyras may have been available to him as a factor in mitigation: Alameddine v R [2006] NSWCCA 317, the suffering of those injuries by Lyras was no element of any offence for which the respondent stood for sentence, nor was it any element of the charges against him that human life was endangered. 12 The facts in relation to the false statement charges were similar in that in claim forms which the respondent was asked to complete by the insurance assessor he indicated in the negative to inquiry as to whether he knew who caused the loss. 13 These were far from being the respondent's first offences. Inter alia, in 1988 he was sentenced to 2 years 6 months imprisonment at Liverpool District Court for robbery. In March 2003 he was sentenced for offences of attempting to possess trafficable quantities of ecstasy and cocaine, to concurrent imprisonment consisting of a non-parole period of 2 years commencing on 5 March 2002 with a balance term of 1 year commencing on 5 March 2004. It can be observed that the current offences occurred within one year of expiry of those sentences. 14 In the proceedings after conviction his Honour referred to some of the content of Dr Rowe's report and expressed an anticipation that it might be submitted that the respondent's participation in the offences were as a result of the existence, in Dr Rowe's psychological opinion, of psychiatric conditions labelled as attention deficit disorder and a bi-polar condition or both of them. Following an exchange about this with counsel, and an adjournment, his Honour was informed that counsel had been instructed that "the offender admits his participation in the crime". The respondent then gave evidence and confirmed that he had given those instructions. 15 The respondent claimed that Dr Rowe's opinion was a revelation to him provoking, as I have remarked, an insight into his offending. It might also be observed that he had been interviewed by a probation and parole officer shortly before he saw Dr Rowe. That officer reported: "Mr Houri attempted to minimise his role in the offences, stating that he was not guilty of lighting the fire, and attempting to implicate others as the main offenders. He showed little insight into the causes of, nor effect of his offending behaviour on himself or his family." 16 It is, of course, literally accurate that the respondent did not light the fire, but in the circumstances that was scarcely a matter which mitigated the respondent's culpability. His Honour found that the applicant planned the fire and co-opted Burrell-Jones to light it. Although his Honour found that these were serious offences and noted the prescribed maximum penalties, after reciting some extracts from Dr Rowe's report he stated: "On considering the evidence pertinent to count 1 and considering the mental condition of the offender I regard the offence to be at the low end of the scale of objective seriousness for the offence. I now look to the objective seriousness of the offences contained in counts 2 and 3 of the indictment. I am not going to repeat the findings of Dr Rowe nor am I going to repeat what I said in relation to the evidence given by the offender. It is clear that the offender was not thinking rationally or clearly due to his mental conditions at the time of his completing the insurance claim forms. I regard the offences to be at the low end of the scale of objective seriousness for the offences." 17 With respect to those expressed views, any mental condition of an offender is subjective to that person and does not provide a factor of the objective seriousness of an offence. The offence was objectively serious. In any event, Dr Rowe had stated: "It is, in my opinion, important to emphasis (sic) that the precise nature of these mental illnesses has remained undiagnosed and untreated. I can only conclude that if Mr Houri's BD, ADD and substance abuse had been adequately treated using the regime which I have described above, he would not have committed the offences." 18 There is an apparency of a gap in logic in concluding that conditions of an undiagnosed nature would have in fact inhibited the commission of voluntary acts of criminality. The assertion, upon analysis, is in essence no more than a guess. 19 Ignoring the lenience which emerged upon the suspension of sentences the assessment of 12 months, 6 months and 3 months imprisonment failed by a considerable margin to reflect the objective seriousness of these offences. 20 It was argued, as had been canvassed at trial, that the $5,000 limit on insurance recovery for stock pursuant to the policy (after exclusion of tobacco and other store contents), when the loss of stock had been estimated at $30,000 showed a defect in reasoning which was at least supportive of Dr Rowe's views. As noted, the respondent himself did not give evidence at trial and in the post conviction proceedings when he did testify he did not reveal that he had any appreciation of the division in available recovery of the $55,000 for fire damage specified in the policy. 21 The respondent drew attention to the sentences received by the co-offenders. Lyras was dealt with in the Drug Court. The statutory framework for the operation of that Court distinguishes any imposition by it from any useful comparison with an offender dealt with according to the general law. Lyras would also have been entitled to have taken into account the burns injuries which he sustained unintentionally during the commission of the offence. The remarks of the presiding judge on final sentence in the Drug Court focussed essentially upon rehabilitation and the respondent can acquire no advantage by reference to the sentence received by Lyras. 22 Nor is the respondent's position relevantly comparable to that of Burrell-Jones. He agreed to, and in fact gave evidence at the respondent's trial. The respondent was the planner and the intended beneficiary of the so-called "insurance job". Burrell-Jones was, although criminally involved, at the level of hired help. The discrimination in their respective roles reveals a significantly greater culpability borne by the respondent. 23 His Honour found that full time imprisonment would cause extreme hardship to the family of the respondent. He described the situation of the respondent's severely handicapped 14 year old daughter as the relevant factor giving rise to this finding. By reason of his offending the respondent has previously been unavailable to assist with the care of his daughter. Although he received a non full time custodial sentence being 2 years periodic detention, for robbery in company in 1998 he was later required to serve full time custody for the drug offences which I have already mentioned. It is difficult to perceive how a repeat of a similar situation can be assessed as extreme. 24 The subjective matters upon which the respondent could draw fall far short of justifying the lenience in the sentences assessed in the District Court and the Crown contention that they were manifestly inadequate is made out and this Court should proceed to resentence. 25 Given, as his Honour had himself found, the absence of entitlement to leniency by reason of the respondent's prior record and giving such weight as is available for mitigation by reason of the subjective factors discussed, I would assess a sentence of 2 years imprisonment for the offence of damaging property by fire. That assessment is less than should have been imposed at first instance but reflects the restraint which is applicable when an offender is resentenced after a successful Crown appeal. On each of the offences of making a false statement, I would assess a term of 12 months imprisonment. It offers some insight into the self centred nature of the respondent's criminal conduct that, in the circumstances of injuries suffered by Lyras, he nevertheless continued to seek to pursue obtaining the financial benefit intended by the fraud. 26 I am unpersuaded that special circumstances provoke departure from the proportion between non-parole period and total sentence specified in the statute. The continued pursuit of the respondent's aims which constituted counts 2 and 3 would justify some cumulation of sentence although, in a sense, all three offences were part of the attempted execution of the one plan. I have concluded that it will meet the situation if the sentences on counts 2 and 3 are served concurrently with each other and with the first 12 months of custody being served in respect of count 1. The sentences on counts 2 and 3 will be fully served within the non-parole period set for count 1 and for that reason I set fixed terms in respect of them. 27 After conviction, the respondent was in custody from 19 August to 17 October 2008, that is 59 days. The sentences should commence on 18 October 2008 to take this previous custody into account. 28 I propose the following: