New South Wales Court of Criminal Appeal CITATION: Yousif v R [2010] NSWCCA 206 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 8 September 2010 JUDGMENT DATE: 8 September 2010 JUDGMENT OF: Hodgson JA at 1; Price J at 2; Fullerton J at 27 EX TEMPORE JUDGMENT DATE: 8 September 2010 DECISION: 1. Leave to appeal granted. 2. Appeal dismissed. CATCHWORDS: Criminal Law - parity - whether bail conditions required reduction in sentence LEGISLATION CITED: Crimes Act 1900 s 86(2)(a), s 99(2) Crimes (Sentencing Procedure) Act 1999 s 32 CATEGORY: Principal judgment Postiglione v The Queen (1997) 189 CLR 295 CASES CITED : R v Kollas [2002] NSWCCA 491 R v Fowler (2003) 151 A Crim R 166 R v Webb [2004] NSWCCA 330 PARTIES: Yousif Yousif Regina FILE NUMBER(S): CCA 2008/8445 COUNSEL: S J Odgers SC (Applicant) J Pickering (Respodent) SOLICITORS: Harb Lawyers (Applicant) S Kavanagh Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT JUDICIAL OFFICER: Berman DCJ LOWER COURT DATE OF DECISION: 25 September 2009 IN THE COURT OF CRIMINAL APPEAL 2008/8445 Hodgson JA Price J Fullerton J 8 September 2010 Yousif v R Judgment 1 HODGSON JA: I agree with Price J. 2 PRICE J: The applicant Yousif Yousif seeks leave to appeal against the sentence imposed by Berman DCJ in the District Court on 25 September 2009. Both the applicant and Sean Issa (Issa), a co-offender, had pleaded guilty to one count of aggravated kidnapping contrary to s 86(2)(a) Crimes Act 1900 with an offence of aggravated demand money with menaces contrary to s 99(2) Crimes Act being taken into account by the Judge on sentence by the Form 1 procedure pursuant to s 32 Crimes (Sentencing Procedure) Act 1999. 3 An offence contrary to s 86(2)(a) Crimes Act is punishable by a maximum penalty of 20 years imprisonment whereas the maximum penalty for a s 99(2) offence is 14 years imprisonment. 4 The sentencing proceedings for the applicant and Issa were heard together by the Judge, at the conclusion of which the Judge sentenced both offenders to imprisonment with a non-parole period of 3 years and a balance of term of 2 years. 5 The applicant's sentence was fixed to commence on 18 August 2009 with the non-parole period expiring on 17 August 2012. The total sentence was fixed to expire on 17 August 2014. Issa's sentence was, however, fixed to commence on 3 January 2008 with the non-parole period expiring on 2 January 2011. The total sentence was fixed to expire on 2 January 2013. 6 The different commencement dates for the sentences reflected the periods of time that the applicant and Issa had spent in pre-sentence custody. The Judge was informed that the applicant had served a total of 39 days pre-sentence custody and that Issa's pre-sentence custody amounted to a total of 20 months 23 days. 7 The applicant's contention that the identical sentences with different commencement dates engender a justifiable sense of grievance on his part is the essence of the sole ground of appeal which is that a disparity of sentence arose from the sentence imposed on Issa. 8 During the proceedings on sentence, the applicant's counsel conceded that the applicant's offending was more objectively serious than that of Issa. This concession arose from the applicant's presence in the vehicle in which the victim was being driven towards his home on 7 June 2007 so that, it seems, $13,000 might be unlawfully obtained from him. The victim had been kidnapped and threatened as the applicant and his co-offenders had wanted money. During the journey the applicant participated in hitting the victim around the head and in threatening him. Issa, however, was not in the vehicle at the time and was not involved in this violent and threatening conduct. He was driving the victim's car and subsequently drove the victim a short distance to his home to enable the money to be collected. 9 The applicant's counsel put to the Judge that although the applicant's involvement in the offence was objectively more serious than that of Issa, his younger age and lack of prior convictions balanced out the considerations of parity in the sentences to be imposed. The applicant was 21 years old when he committed the offence whereas Issa was 24 years old. The applicant did not have any prior convictions but Issa had a criminal record which included a conviction for the supply of a prohibited drug on an ongoing basis for which he had been sentenced to imprisonment for 4 years in the Campbelltown District Court on 1 March 2004. 10 The Judge gave careful consideration to the question of parity in his ex tempore sentencing remarks. His Honour said (ROS at 9): "One of the issues which is of course relevant concerns the question of parity. I must ensure that neither offender has a justifiable sense of grievance when he compares the sentence I impose on him with the sentence I impose on his co-offender. In this case I will accept what [the applicant's counsel] said and that is that there is a balancing out of some factors, such that they should effectively receive the same sentence. Whilst Mr Yousif was more involved, he being in the car, and he actually hitting the victim, his client (sic) was younger and did not have a criminal record. Those matters to my mind do balance each other out such that the sentences imposed on the offenders will be identical." 11 The applicant contends that the Judge misunderstood the argument by his counsel as being that the two offenders "should effectively receive the same sentence" but that was not what was said nor was it a necessary implication from the submission. What was submitted, the applicant argues, is that, apart from the issue of bail conditions prior to sentence, considerations of parity justified the imposition of the same sentence on each offender. The applicant submits that the applicant's bail conditions prior to sentence justified a shorter sentence than that imposed on Issa and the Judge erred in failing to recognise the significant difference between the applicant and the co-offender in this regard. The applicant does not argue that there was error in the backdating of the sentence. 12 The applicant was arrested on the day the offence was committed and bail was refused when he was charged. He was first granted bail on 17 July 2007, 39 days after his arrest. The conditions of bail required him to report daily to police at Fairfield between 6am and 8pm, to reside at..., to be within those premises between 8pm and 6am, not to associate with the co-accused, the victim or Crown witnesses, to surrender all passports, to stay away from points of departure, to apply neither for new passports nor travel documents and to be of good behaviour. The applicant was obliged to enter into an agreement without security to forfeit the amount of $1,000 and an acceptable person (who was nominated) was required to deposit $5,000 in cash. On 14 November 2007, the curfew condition was varied so that the applicant was required to be within the nominated premises between 11pm and 6am. On 28 November 2008, the reporting conditions were varied so that he was required to report on Mondays, Wednesdays and Fridays and the curfew hours reduced to between midnight and 7am. The curfew was lifted for Christmas and New Year's Eve. The applicant's bail was further varied on 21 April 2009 by deleting the curfew condition for 26 April 2009 and requiring him to report to the Fairfield Probation Office for the preparation of a pre-sentence report. On 3 June 2009, the residential condition was changed to a different residence in Fairfield and the curfew condition required him to be within those premises between midnight and 7am. 13 The Judge was apprised of the applicant's bail conditions by his counsel who informed the Judge that the applicant had complied with the curfew and reporting conditions. He asked the Judge to take "those matters into consideration" but did not submit that the conditions of bail be taken into account on the question of parity. 14 It appears that whilst not in custody, Issa was also subject to strict bail conditions. Issa's counsel told the Judge that Issa "had reported daily for something like 172 days and…was in a curfew for some 213 days while on bail." The curfew, was between 6pm and 7am. Issa had spent a total of 20 months 23 days in pre-sentence custody. It does not appear that Issa's curfew conditions were reduced whilst he was at liberty on bail. 15 The applicant points out that he was subject to stringent bail conditions for more than 27 months whereas Issa was on bail under similar conditions for 7 months. The consequence was, the applicant submits, that Issa's sentence was backdated by approximately 21 months while the applicant's sentence was backdated by a little over a month. It was submitted that the applicant's life was "on hold" whilst he was subject to bail. 16 It is plain that the Judge did not overlook the bail conditions to which the applicant and Issa had been subject. His Honour said (ROS at 9): "In each case I take into account that the offenders were subject to stringent bail conditions. In Mr Yousif's case they were relaxed over time. These conditions included a curfew and daily reporting. I am able to take those into account and indeed I should in assessing the appropriate sentence." 17 The Judge was mindful, it seems to me, that the terms of bail and the length of time that an offender is on bail awaiting trial or sentence is, in an appropriate case, a relevant consideration to be taken into account at sentence: R v Fowler (2003) 151 A Crim R 166 at [242]. 18 The applicant's contention is, however, that the Judge's failure to give credit for the time that the applicant was on bail by way of reduction in sentence created a marked disparity with the sentence imposed on Issa. It was suggested for the applicant that a period of six months reduction in sentence was appropriate. 19 In written submissions the applicant referred to the report of Carin Swaddling, a psychologist, which had been before the Judge. Ms Swaddling, opined that the applicant "presented as a sad, young man lacking direction or having plans for the future, which he explained away because he was waiting for the Court sentencing … as if his life was on hold." He had taken on the primary responsibility of taking care of his sick mother. 20 The parity principle is "an aspect of equal justice": Postiglione v The Queen (1997) 189 CLR 295 at 301. As was pointed out by Dawson and Gaudron JJ "like should be treated alike, but that, if there are relevant differences, due allowance should be made for them". 21 According to the history provided to the psychologist, the applicant had been living with his mother and was unemployed prior to being charged with the offence. He continued living with his mother after bail was granted and they had commenced living with his sister and her family. Save for a short period of work with his sister, he continued to be unemployed. The assistance to his mother was provided as he was her son and had nothing to do with bail. The curfew was reduced to 11pm after about three months and the daily reporting to police to three days a week after about 15 months. The curfew was then further reduced to midnight. The limited impact that the bail conditions had on the applicant is demonstrated by the following passage in Ms Swaddling's report: "He said his days usually consist of getting up at 9.30am having breakfast and giving his mother her medication by 10.00am. He then hangs out around the house and watches TV. At 3.00pm he goes out with his mother to one of his sisters (sic) homes so his mother can visit her grandchildren for a couple of hours. At night he usually goes out for a couple of hours with his friends for coffee, and to play pool or cards. He usually is home by 8.00pm and gives his mother her injection of insulin about 9.00pm. He then might watch TV until he goes to bed around 11.30pm." 22 Although the Judge described the applicant's bail conditions as "stringent", I am not persuaded that the bail conditions seriously restricted the applicant's liberty. The limited restrictions which bail actually imposed on his life can hardly be compared to the deprivation of liberty that Issa experienced whilst in pre-sentence custody. The bail conditions were neither individually nor in combination particularly onerous or stringent. They do not mandate that at least some part of the period on bail should be treated as the notional equivalent of custody for which the applicant should be credited by a reduction in the length of his sentence R v Webb [2004] NSWCCA 330 at [18]. 23 The applicant has not shown that a reasonable person, looking at the circumstances of the case, would regard his grievance as justified: R v Kollas [2002] NSWCCA 491. The sentence imposed by the Judge does not give rise to a justifiable sense of grievance. 24 In any event, I am of the opinion that the sentence imposed on the applicant was the least he should serve for this violent offence. The Judge correctly, described the crime as "very serious" and significant weight in an offence of this nature should be given to general deterrence. 25 I would reject the sole ground of appeal. 26 Accordingly, I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. 27 FULLERTON: I also agree with Price J. ********** 10/12/2010 - Anonymisation - Paragraph(s) 12 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. 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