R v Abdulhamid SHAHROUK [2011] NSWDC 228

District Court New South Wales

Medium Neutral Citation: R v Abdulhamid SHAHROUK [2011] NSWDC 228 Decision date: 16 December 2011 Before: Cogswell SC DCJ Decision: For the crime of aggravated arson, a sentence of 3 years imprisonment. For kidnapping, a sentence of 1 year and 10 months imprisonment. Overall sentence of 4 years imprisonment. Single non-parole period of 2 years and 4 months. Catchwords: CRIMINAL LAW - Particular offences - kidnapping - aggravated arson - sentence - relevant factors - gravity of offence - arson - mid range seriousness - extensive damage, significant financial loss and risk to the public - premeditation - participated in arson to relieve household financial situation - prior criminality - negligible record - non-parole period - special circumstances - first time in custody. Legislation Cited: Crimes Act 1900, s 86(2)(a), 195(1A)(b) Crimes (Sentencing Procedure) Act 1999, s 32 Cases Cited: SZ v The Queen (2007) 168 A Crim R 249 Category: Sentence Parties: Regina (Crown) Abdulhamid SHAHROUK (Accused) Representation: Counsel D Drewett (Accused) Solicitor Director of Public Prosecutions (Crown) File Number(s): DC 2010/343372

sentence 1I am sentencing a young man with a negligible criminal record for some serious criminal behaviour. He burned a shop down and kidnapped a passer-by. He had earlier telephoned the restaurant with a bomb threat. The young man's name is Abdulhamid Shahrouk and he is aged 23. 2Abdulhamid Shahrouk was charged with two offences that I am sentencing him for. When I sentence him for one of the offences he has asked me to take into account a third offence. 3The first offence I am sentencing him for is called destroy property in company by fire. I will refer to it as arson or aggravated arson. It is aggravated because Mr Shahrouk was not alone when he committed the crime. That crime is an offence against s 195(1A)(b) of the Crimes Act 1900. Parliament has fixed a maximum of 11 years imprisonment to the crime. 4The other offence that I am sentencing him for is called detaining a person in company with intention to obtain an advantage. That is a legal way of referring to kidnapping. That is a crime against s 86(2)(a) of the Crimes Act. It carries a maximum of 20 years imprisonment. 5When I am sentencing Mr Shahrouk for the aggravated arson I have been asked to take into account an offence of giving false information that a person or property was in danger. I will take that into account and I sign and date a document which contains that additional charge, produced under s 32 of the Crimes (Sentencing Procedure) Act 1999. That document is part of exhibit A. 6It is important when a judge is sentencing a person for the judge to set out briefly what happened so that an assessment can be made of how serious an example of the crime the particular offence was, or offences were. In this case the owner of an Indian restaurant business in Redfern was alleged by the prosecution to want the business burned down for his own reasons. He made contact one way or another with Abdulhamid Shahrouk, and agreed for him, with some assistance, to burn the restaurant down. 7The arson itself occurred on 5 July 2010. A couple of weeks before then Mr Shahrouk telephoned the restaurant. It was about 6.00pm on a Friday night, 25 June 2010. He left a bomb threat. The restaurant was evacuated along with two adjacent businesses for about threequarters of an hour. That is obviously a crime - making a bomb threat - and it is the one that I take into account when I am sentencing Mr Shahrouk for the aggravated arson. 8As I said, the arson came about on Monday 5 July 2010. The restaurant was closed on Mondays. It happened at about 11.40pm. Mr Shahrouk and a co-offender got into the restaurant and were in the process of pouring around flammable material and stacking furniture. 9As it happened, a man who lived above the restaurant noticed something strange and went inside and asked who was there. At that point the kidnapping occurred. When the man went in he found the two men, including Mr Shahrouk, and he was told aggressively to sit on a chair. Sensibly he complied, because he was threatened by the presence of both men. He handed over his mobile phone. The men took the SIM card so that he could not telephone anyone and he was threatened not to move. The men continued pouring flammable liquid around and when they were distracted the man escaped and asked someone to call the police. 10The two men, including Mr Shahrouk, nevertheless proceeded with their plan. The result of their crime was experienced first hand by another passerby who was very fortunate to have escaped with his life. He had just walked past the restaurant when he heard an explosion. He saw debris flying out behind him and saw fire starting to spread through the restaurant. I have seen photographs which are part of exhibit A and one reason I say that he was lucky to escape with his life is that a large part of the front glass window was blown out of the restaurant over the footpath on to the road. 11The size of the fire inside the restaurant grew and intensified. There were three people living upstairs. They had to escape by getting on to the awning. As it happened, two men were driving by with a ladder. They helped these people down. The police and the fire brigade turned up and the fire was brought under control. Nevertheless the restaurant itself and two buildings beside it were severely damaged. The damage estimate was $400,000. The contents of the restaurant were totally destroyed and their value was some $100,000. 12It was not until 9 October 2010 that Mr Shahrouk was arrested and charged. He pleaded guilty at what the prosecution agrees was the earliest available opportunity. That is significant because it means that his sentence will be discounted by 25 per cent for that reason alone. 13As I said in my opening remarks, Mr Shahrouk has a criminal record but it is negligible. He has two minor traffic offences and they make no impact whatsoever on the sentence which I will impose. In effect I sentence him as if he had no record at all. 14A pre-sentence report was prepared by an officer from the Bankstown District Office of the Probation and Parole Service. It describes Mr Shahrouk as a "23 year old man of Lebanese background who is currently residing with his mother and 4 siblings in a rental property." It also recorded Mr Shahrouk telling the Probation and Parole officer about a strict upbringing with frequent arguments between his parents, who were in financial difficulty. 15It recorded that Mr Shahrouk was "a committed member" of sporting teams and had volunteered to train junior club teams when needed. The information was verified satisfactorily so far as the Probation and Parole officer was concerned. 16Mr Shahrouk had obtained his higher school certificate and has been self-employed as a concreter. 17The report noted that Mr Shahrouk "acknowledged he had participated in criminal and anti-social behaviour, however during interview he remained focused on the way he had been 'treated' during the course of the investigation and appeared to view himself as an additional victim." 18The summary reported that Mr Shahrouk "presented as having experienced deteriorating familial stability over the past three years due to the breakdown of his parents' marriage, and medical expenses associated with treatment for his mother and two youngest siblings. These events reportedly have resulted in substantial financial difficulties for the offender and increased domestic responsibilities. Mr Shahrouk described his employment income as inconsistent and stated he had participated in the offences for financial gain. The offender acknowledged the criminality of his actions during the interview and the serious nature of the offences." 19Mr Shahrouk has provided a statement to the police in which he acknowledges the conversation he had with the person who arranged the burning down of the restaurant. I have also taken into account confidential exhibit B. 20Mr Shahrouk has spent no time in custody and has been on bail since his arrest. 21Mr D Drewett of counsel, who appeared for Mr Shahrouk in the sentence proceedings, called his client to give evidence. Mr Shahrouk confirmed living at home with his mother, 2 brothers and 2 sisters. The sisters are aged 12 and 14 and each of them has serious disabilities. One has cerebral palsy and the other cerebral ataxia. Not only this, his mother has a cancer condition and help is needed in supporting the 2 girls in the family. As Mr Shahrouk said, care is needed 24 hours a day. 22His employment as a contractor varies and he may net $700 a week when he is working, but that can be inconsistent. His mother has already had some surgery for her cancer and is due to have further extensive surgery. Mr Shahrouk confirmed the significant financial strains which the household was existing under. There were medical bills to meet, particularly for his mother, and the normal bills associated with living at home such as rent, water and electricity. Some of these bills were due, or overdue I should say, in payment. 23Mr Shahrouk's father was not working and expected him to pay board. The relationship between Mr Shahrouk and his father is not good. His father has effectively disowned him as a result of the crimes that he has been charged with. Mr Shahrouk's motive for committing this crime, for which he was paid $10,000, was to relieve the financial situation within the household. He said that the situation was desperate and the money was in fact all spent on the household debts. 24Mr Shahrouk acknowledged that the people who lived above the restaurant had an experience which he described as "not very pleasant". He acknowledged that he would not wish to put other people in the situation that he put those people in. 25The brothers are both employed and living at home and make some financial contribution to the household, although Mr Shahrouk effectively found himself as having significant responsibilities at home. 26I was assisted by both Mr Coe, solicitor, who appeared for the Director of Public Prosecutions, and by Mr Drewett in their submissions. I will briefly refer to their submissions indicating my response to the arguments which they have presented. 27Mr Coe correctly pointed out that although the kidnapping offence carries a higher maximum penalty, the more serious offence in this instance was the aggravated arson. The kidnapping lasted a relatively short time. Although the two crimes were closely linked, there needed to be some degree of accumulation. Mr Coe argued that the arson was clearly planned, and I accept that. However, he prudently warned me against double counting, in the sense of taking the planning into account as a normal part of an arson crime and, in addition, taking it into account as an aggravating feature under s 21A of the Crimes (Sentencing Procedure) Act 1999. I accept that submission and I regard the planning that went into the aggravated arson as a factor which is part of the offence and I do not take it into account separately under s 21A of the Crimes (Sentencing Procedure) Act. 28I accept that the damage in this case was extensive and that three buildings were involved. There is a question of whether the circumstances of the fire involved a grave risk to health of another person, which would be a separate aggravating feature under s 21A(2)(ib). Mr Drewett acknowledged that, whilst the offence was clearly aggravated - by being committed without regard for public safety, a factor under s 21A(2)(i) - it was not a case where I could be satisfied beyond reasonable doubt that it involved a grave risk of death to another person. He regarded the conclusion as amounting to a leap of faith which would need far more forensic evidence than was available to me. I think he is right in that submission and I do not take into account as an aggravating feature any factor such as a grave risk of death. However, I do take into account as an aggravating feature that the offence was committed without regard for public safety. That is clearly demonstrated by the danger which the people upstairs were put into and by the narrow escape of the passer-by. 29It should also be noted that the person who was kidnapped and escaped ended up in hospital for a short time because he had inhaled smoke. Mr Coe reminded me that the bomb threat, which is the offence I take into account, carries a maximum penalty of 5 years imprisonment, and it involved the evacuation of 2 other businesses as well. 30So far as the contents of confidential exhibit B are concerned, Mr Coe said I need to assess the usefulness of the information. The statement, he said, could not be regarded as timely, having been produced about a year after Mr Shahrouk's arrest. He said that the maximum discount should not be attracted and he reminded me of what the Court of Criminal Appeal had said in SZ v The Queen (2007) 168 A Crim R 249 at 261-262. 31Mr Drewett, on the other hand, argued that the combined discount for the plea of guilty - which itself carries 25 per cent - and the additional factor should be the maximum of up to 50 per cent. He argued that, although there was other evidence available to the police, it was mostly circumstantial. 32The assistance has been promised and has not yet been delivered because there has been no opportunity for that. I regard the assistance as significant but limited by its timeliness and I propose to allow a combined discount of 35 per cent, for both the plea of guilty and for the assistance. Of the additional 10 per cent which I have allowed for assistance, I would attribute 7 per cent to assistance which will be provided in the future. In other words, of the total discount of 35 per cent, 7 per cent of that is attributable to the assistance which will be provided by Mr Shahrouk if required. 33It should also be acknowledged, of course, that the arson was committed for financial gain. 34Mr Drewett drew my attention to some mitigating factors relevant to his client's case under s 21A(3) of the Crimes (Sentencing Procedure) Act. He referred to his client's lack of any criminal record, which I have already taken into account. He referred to his client as being a person of good character. I make that finding but just. There is general evidence about his role within the family but there are no character references which I have received or character witnesses whom I have heard from. But the Probation and Parole Report refers to his contribution to the community. 35I think I can find, as Mr Drewett invited me to, that his client is unlikely to reoffend. This was a first but serious offence. His prospects of rehabilitation I would regard as fair. I think there is some degree of remorse shown by the offender but it is quite limited, and of course I take into account his plea of guilty. Mr Drewett argued that his client may be vulnerable in custody. There is no evidence to support that and I do not take it into account. Mr Drewett referred to the financial circumstances of the family which brought about the commission of the offence. Mr Drewett accepted that it cannot mitigate the sentence. I think that is a correct acceptance because the authorities make it clear that the impact upon a family of an offender's behaviour is rarely something which will mitigate a sentence. But Mr Drewett's point was correctly made that the motive for his client's criminal behaviour cannot be seen as greed or a personal accumulation of assets or lifestyle. I accept that submission. 36Mr Drewett and Mr Coe disagreed over how serious the aggravated arson was. Mr Drewett argued that it fell at the lower end of seriousness for crimes such as this. Mr Coe on the other hand said it was serious enough to be regarded as being in the middle point of seriousness for crimes such as this. 37I think Mr Coe is right. There was the significant risk to the public, the damage was extensive - extending over more than one building - and the financial loss very significant. I agree with Mr Coe that it falls within the middle of seriousness for crimes such as this. It was also committed for financial gain. 38I come now to consider the appropriate sentences which I should impose given all the factors which I have referred to. The aggravated arson, as I said, carries a maximum penalty of 11 years imprisonment. I would regard an appropriate sentence, after taking into account Mr Shahrouk's personal circumstances, as one of 5 years. I need to take into account the bomb threat crime which he has asked me to take into account so I would regard an appropriate overall sentence for the aggravated arson as being 5 ½ years. 39For the kidnap crime, the maximum penalty is 20 years imprisonment. The kidnap was not a serious example of a kidnapping and I would regard an appropriate sentence to be 3 years imprisonment for that crime. 40If I were to sentence Mr Shahrouk for both of those crimes, the potential is that the maximum would be 5 ½ years and 3 years, namely 8 ½ years. But there needs to be some overlap of those sentences because both crimes were committed on the same occasion and were closely connected. I would regard an overall sentence for both crimes of 6 ½ years as being appropriate. 41Because Mr Shahrouk pleaded guilty at the earliest available opportunity and because of the other matter, I would apply the discount which I have referred to, of 35 per cent. That, by my calculations, produces a rounded-off sentence of 50 months which I would reduce slightly to 4 years imprisonment. I propose to set an overall non-parole period of 2 years and 4 months. Mr Shahrouk has been on bail up until now so the sentences will commence from today. I am going to sentence you now Mr Shahrouk, if you would stand up. 42For the crime of aggravated arson I sentence you to 3 years imprisonment. That will commence today, 16 December 2011, and expire in 3 years time on 15 December 2014. I have taken into account in that sentence the bomb threat crime. 43For the kidnapping I sentence you to 1 year and 10 months imprisonment. That will commence on 15 February 2014 and expire on 15 December 2015. The overall sentence is 4 years commencing today, 16 December 2011, and expiring on 15 December 2015. 44I fix a single non-parole period of 2 years and 4 months. That commences today, 16 December 2011, and will expire on 15 April 2014. The first day that you will be eligible for release on parole is 15 April 2014. Have a seat for a moment Mr Shahrouk. DREWETT: May I enquire of your Honour whether you made a finding of special circumstances? HIS HONOUR: Thank you, I was going to do it earlier - yes I have and I referred to it earlier and then I changed course. DREWETT: I think your Honour did and then-- HIS HONOUR: Yes, I forgot, I will come back to that. Thank you, and I don't make any direction about parole because it is a sentence of more than 3 years. 45I will add to my remarks on sentence that I accept Mr Drewett's submission that, mainly because this is his client's first time in custody, there are special circumstances for adjusting the ratio between the non-parole period and the parole period. Normally a sentence of 4 years, which Mr Shahrouk has received, would carry a non-parole period of 3 years imprisonment. I have reduced that to 2 years 4 months because of those special circumstances. HIS HONOUR: Mr Drewett and Ms Goodwin if you could just, when you have an opportunity, check my figures please. DREWETT: Yes. GOODWIN: I am content with that. HIS HONOUR: Yes I think they are right, aren't they, and I don't fix any conditions of parole. In a moment I will explain the sentence to Mr Shahrouk, but I think that is all I need to do; is that right; Mr Drewett and Ms Goodwin? DREWETT: Yes. GOODWIN: Yes your Honour. 46Mr Shahrouk you have received an overall sentence of 4 years. It starts today. It finishes 15 December 2014. As I explained, normally a non-parole period - that is the time you have to spend in gaol - would be 3 years for that kind of sentence. Parliament said threequarters. But because of what Mr Drewett said I have reduced that from 3 years to 2 years and 4 months, so that you go to gaol today and you are eligible for release on 15 April 2014, which is 2 years and 4 months from today. 47Whether you are released or not depends on the Parole Authority. They assess you and you make your application, or whatever happens, and they decide. 48Technically, the sentences are 2 sentences. The arson sentence is itself 3years. It starts today. It finishes 15 December 2014. The kidnap is 1 year and 10 months and that starts partway through the arson sentence. There is an overlap deliberately. That starts 16 February 2014 and finishes 15 December 2015. You have received a significant discount, 35 per cent, both because you pleaded guilty and because of the other matter that I have referred to. 49Your sentence would have been 6 ½ years but instead it is 4 years because of those factors. Seven per cent of that 35 per cent is for what will happen in the future so far as your assistance is concerned. HIS HONOUR: Do you understand that? OFFENDER: Yes your Honour. HIS HONOUR: All right I will now adjourn, good luck.