District Court New South Wales Medium Neutral Citation: R v Omar [2018] NSWDC 393 Hearing dates: 12 July 2018, 19 October 2018, 28 November 2018 Date of orders: 13 December 2018 Decision date: 13 December 2018 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 The offender is convicted. 2 I impose an aggregate sentence of imprisonment of 6 years with a non-parole period of 4 years. 3 The sentence is to date from 23 March 2016. The non-parole period will expire on 22 March 2020 and the head sentence will expire on 22 March 2022. 4 The offender will be eligible to be released on parole on 22 March 2020. 5 I refer the offender to the Drug Court to be assessed as to his suitability for a Compulsory Drug Treatment Order. Catchwords: CRIMINAL LAW – offence – plea of guilty – aggravated break and enter – larceny – take and drive conveyance without consent SENTENCE – objective seriousness – deterrence – aggravation factors – mitigating factors SENTENCE PRINCIPLES - parity Legislation Cited: Crimes Act 1900. Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 R v Elemes [2000] NSWCCA 235 R v Henry (1999) 46 NSWLR 346 R v Ly [2014] NSWCCA 78 R v Reilly [2012] NSWCCA 166 R v Youkhana [2004] NSWCCA 412 Category: Sentence Parties: Regina v Ezzeddine Omar Representation: Counsel: Ms C Wasley (Defendant) Solicitors: ODPP (Crown) Risk and Associates (Defendant) File Number(s): 2016/96675 Publication restriction: None Judgment 1. Ezzeddine Omar (the offender) appears for sentence after pleading guilty in the District Court to one count of aggravated break and enter with intent to commit a serious indictable offence of larceny contrary to section 113(2) Crimes Act 1900, two counts of take and drive a conveyance without the consent of the owner contrary to section 154A(1)(a) Crimes Act 1900 and one count of recklessly deal with the proceeds of crime contrary to section 193B(3) Crimes Act 1900. 2. The maximum penalty for the section 113 offence is 14 years imprisonment, for the section 154A offences is 5 years imprisonment and for the section 193B offence is 10 years imprisonment. Facts 1. The parties tendered two Agreed Statements of Facts that can be summarised as follows. 2. The offender participated in a joint criminal enterprise with convicted co-offenders Lee McArthur, Ahmad Alameddine and Ahmad Dandan to steal a heavy 4WD vehicle and a light commercial van, for the purpose of conducting a "ram raid" at the Meadowbank Village Plaza Shopping Centre (the Shopping Centre) in order to steal an automatic teller machine (ATM) the property of the ANZ Bank. The circumstance of aggravation was that the offenders were in company. 3. At 11.47am on 4 December 2015 the police intercepted a telephone call between McArthur and Alameddine in which they discussed the location and suitability of a Nissan Patrol 4WD vehicle that could be stolen to be used in the offence. 4. At 2.34am on 6 December 2015 police intercepted a telephone call between Alameddine and a female. Alameddine told the female that he was in the car with his 'mates'. McArthur's voice was recognised in the background. At some point Alameddine referred to one of the persons in the car as 'Azel' which is the nickname of the offender. He uses the name 'Azel Os' on Facebook. It was apparent that the men were conducting reconnaissance on the Shopping Centre. 5. At 12.27pm and 1.01pm on 6 December 2015 police intercepted telephone calls between Alameddine and McArthur and another person discussing the location of suitable vehicles to be used in the offence. 6. At 7.47pm on 6 December 2015 police intercepted a telephone call between Alameddine and another person directing him to a vehicle in an apartment car park at 18-20 Marine Parade, Wentworth Point. 7. At 10.17pm on 6 December 2015 McArthur attended Alameddine's house and drove with him from Fairfield to Newington, Homebush, Sydney Olympic Park and Melrose Park. 8. At 11.11pm on 6 December 2015 police intercepted a telephone call between Alameddine and another person in which Alameddine's mobile telephone used a cell tower in Walker Street, Rhodes. This was the street from which a Mitsubishi Pajero 4WD used in the offence was stolen on 23 December 2015. In the course of the telephone call Alameddine was warned about entering the car park of an apartment complex at Wentworth Point, because there were cameras and there was discussion about covering the number plates of the vehicle he was travelling in. Alameddine and McArthur travelled to Wentworth Point to look for suitable vehicles to use in the offence. Police attended the Wentworth Point address and observed a Nissan Patrol 4WD with a steel bull bar parked there. 9. Telephone intercepts and cell tower information demonstrated that Alameddine and McArthur were in the vicinity of Rhodes, Melrose Park and Wentworth Point for over 1.5 hours, looking for suitable vehicles to be used in the offence. 10. Alameddine was the owner of a black 2009 Toyota Corolla registration number BHG 64L. Police installed a tracking device in Alameddine's vehicle. Events of 22 December 2015 1. At 5.39pm police intercepted a telephone call from Alameddine to Dandan in which they discussed going fishing. Alameddine told Dandan he would pick him up at 9pm. At 9:32pm police intercepted a telephone call in which Alameddine agreed to pick up Dandan in half an hour. 2. At 10.04pm police observed Alameddine drive his vehicle from his residence to McArthur's residence in Granville. Police observed McArthur leave his house and enter Alameddine's vehicle. 3. At 10.22pm police intercepted a telephone call indicating that Alameddine picked up Dandan from his residence in Lidcombe. Alameddine then drove to Moorebank to the offender's residence. 4. At 11.46pm Alameddine, McArthur, Dandan and the offender left the offender's residence and travelled in convoy with a Toyota Landcruiser to the BP Service Station at Chipping Norton, where the offender purchased cigarettes. The vehicles then travelled in convoy to Meadowbank, with the vehicles stopping frequently and the parties engaging in discussions. The movements of Alameddine's vehicle were tracked by police. The offenders were engaged in reconnaissance of the Shopping Centre. Events of 23 December 2015 1. At 1.46am Alameddine dropped off Dandan at his residence in Lidcombe. At 1.58am Alameddine dropped off McArthur at his residence in Granville. 2. At 7.54pm police intercepted a telephone call between Alameddine and McArthur where they agreed to meet at Alameddine's residence at 10pm. 3. At 10.17pm McArthur arrived at Alameddine's residence. At 10.33pm police observed Alameddine leave his residence with two other occupants in his vehicle. 4. At 10:37pm police intercepted a phone call between Alameddine and Dandan, in which Alameddine agreed to pick up Dandan in 15 minutes. At 11.08pm Alameddine travelled to Dandan's residence at Lidcombe and picked him up. Alameddine, McArthur and Dandan travelled in Alameddine's vehicle to West Ryde, where they met the offender who was driving a Toyota Landcruiser and had a discussion. The vehicles then travelled to Walker Street, Rhodes, where a Mitsubishi Pajero 4WD was stolen. 5. Alameddine's vehicle and the stolen Pajero stayed in Meadowbank while the Toyota Landcruiser was driven to Dickson Avenue, Ryde where a Toyota Hiace was stolen. 6. The stolen Hiace and the stolen Pajero were driven to Meadowbank where they travelled around, often stopping to allow the occupants to have discussions. 7. At 3.08am on 24 December 2015 the stolen Hiace and the stolen Pajero travelled in convoy to the Shopping Centre at high speed. They travelled up a pedestrian walkway where the Pajero was driven over a steel bollard and into the façade of the Shopping Centre and rammed into a free standing ANZ Bank ATM, knocking it off its mountings. 8. At this time Dandan remained in the Toyota Corolla and acted as a lookout in the vicinity of the Shopping Centre. 9. The offenders were unable to steal the ATM because one of its mountings was still fixed to the floor. Immediately after the offence, police followed the Toyota Landcruiser to the offender's residential address, where it stopped for a few minutes before travelling to Riverwood in convoy with a vehicle owned by the offender's wife. 10. The stolen Pajero left at Meadowbank Village Plaza was forensically examined by police. A DNA profile obtained from the steering wheel matched the DNA profile of the offender. 11. On 24 December 2015, police observed the offender returning to his residence at Moorebank. In the course of a search of the property executed pursuant to a search warrant, 5 stolen vehicles were located. These were a Subaru WRX, an Audi Q5, a Mitsubishi Lancer Evo 7, a Nissan Skyline, and a Sea-Doo Jetski GTR 125 and Boeing boat trailer. Two of the vehicles had unique identifiers which had been interfered with. 12. Police enquiries revealed that the Subaru WRX was stolen between 26-27 October 2015 from the driveway of a residence in West Hoxton while the occupants slept. The Audi Q5 was stolen between 18-19 October 2015 from the driveway of a residence in West Pennant Hills while the occupants slept. The Mitsubishi Lancer Evo 7 was stolen between 9-10 December from the street outside a residence in Croydon. When the vehicle was recovered at the Moorebank residence, the ignition barrel was damaged and a paintbrush handle was inserted where the keyhole would usually be. The original registration plates had been replaced. The Nissan Skyline was stolen on 16 November 2015 from the underground car park Market Plaza shopping centre at Chipping Norton. When the vehicle was recovered from the Moorebank residence, the registration plates had been removed and the Australian compliance label had been removed from the passenger side pillar. The Sea-Doo Jetski GTR 125 and Boeing boat trailer were stolen on 22 December 2015 from the front yard of a home near the offender's residence in Moorebank. The Hull Identification Number (HIN) plate of the Sea-Doo Jetski and its registration sticker had been removed. 13. DNA matching that of the offender was found on the steering wheel of the stolen Subaru WRX and Audi Q5. 14. On 24 December 2015, the offender was arrested and interviewed by police in relation to the stolen vehicles found on his premises. He stated he believed the Mitsubishi Evo Lancer was stolen because the ignition was broken. He declined to answer questions in relation to the other stolen vehicles and the Meadowbank offence. The Offender's Case on Sentence 1. The offender tendered a report of Dr Marcelo Rodriguez, psychologist, dated 22 November 2018. Its contents can be summarised as follows: 2. The offender is 36 years old, and is married with a 4-year-old daughter. Prior to being incarcerated, he had been living with his wife and daughter in Moorebank. 3. Throughout his childhood, the offender witnessed significant domestic violence perpetrated by his father against his mother, and was subjected to physical abuse by his father. His father was a pathological gambler, who neglected his financial responsibilities to his family. The offender has had no contact with his father for the last four years. 4. The offender described himself as a 'menace' at school. He had difficulty applying himself and staying focussed in class. He had behavioural problems, and was often provoked into physical fights. He was expelled from Riverwood Public School in year 3 after bashing most of another school's soccer team. He completed year 10 at Sir Joseph Banks in Revesby, however did not learn to read or write until he entered prison, where he received some assistance. 5. The childhood abuse experienced by the offender at the hands of his father would have contributed to significant early developmental problems, constituting a conduct disorder. 6. The offender owned a jet blasting business for 7 months, and a car washing business for one year before being incarcerated. He has intermittently worked as a panel beater and spray painter. He has been unemployed at times. 7. The offender reported a pattern of binge drinking with no history of alcohol dependence. He has used ecstasy recreationally. He began using cocaine in 2002, and by the time of his incarceration in 2015 was consuming $600 worth of cocaine daily. His heavy cocaine use has developed into a substance use disorder. He has never received residential drug and alcohol rehabilitation. He reported being abstinent from all substances since being incarcerated. 8. The offender's only long-term relationship has been with his wife. He denied a history of domestic violence, but reported that his substance abuse has caused strain in the relationship. 9. The offender reported being incarcerated on ten occasions, and serving a total of eight years in custody. His previous offences include assault officer and resist arrest, drive while disqualified, and drug possession. He acknowledged stealing cars and selling them for a small profit for many years. 10. At the time of the offences, the offender was using cocaine daily. He felt depressed about his failed panel beating business venture, and felt that nothing was working out in his life. His family was financially vulnerable, and he reported that his substance dependence led to him becoming paranoid. It seems that he has resorted to substance use to deal with negative emotions, and he turned to criminal activity to fund his addiction. He was under the influence of cocaine at the time of the offence, and it is likely that his decision-making was impaired as a result. 11. During his current period of incarceration, the offender reported suffering from kidney stones, and has been treated for rectal bleeding. He sustained a fractured eye-socket during an assault in prison. 12. The offender has demonstrated remorse for his offences, and stated that he did not wish to have continued exposure to the legal system as he has a young daughter. The psychologist opined he would be a high risk for relapse because he has few coping mechanisms and supports, other than his wife and possibly his mother. He has few current employment prospects. He would need to address his substance use disorder. It is likely that further incarceration would result in a worsening of his condition, as there are limited resources in prison to treat his substance dependence. 13. The offender has a number of medical problems requiring immediate attention, i.e. kidney stones and rectal bleeding. He will benefit from admission to a residential rehabilitation facility to treat his serious drug dependence. 14. The offender tendered a character reference from Damien Banner, president of the Sydney Knights Youth Basketball Club. Mr Banner worked with the offender for two years, and described him as approachable, efficient, honest and considerate. The offender worked as a junior basketball coach and youth mentor, and developed strong relationships with young people and their families in the community. Mr Banner described him as an invaluable asset. 15. The offender tendered a letter from Nick Ceroni, dated 29 November 2018. Mr Ceroni has known the offender for 18 years, and confirmed that he has an offer of employment commencing March 2019. 16. The offender also tendered a letter from his wife, Rola Abou Daher. Ms Daher described the offender as her only support person, as her family lives overseas. Prior to being incarcerated, the offender cared for their daughter while his wife worked full time. Since his incarceration, their daughter's behaviour has changed and she struggles to sleep at night. Ms Daher has experienced financial problems since the offender entered custody, and described herself as feeling scared and stressed. Consideration Objective Seriousness of the Offences 1. The offence involved some considerable planning. The planning consisted of discussions between the offenders and others about the location of suitable vehicles that could be used in the offence. It also involved conducting reconnaissance missions to look at the vehicles and the layout of the Shopping Centre. The two vehicles were stolen with an intended purpose. The planning took place between 4 December 2015 and 23 December 2015, although there is no particular evidence of contact between the offenders in the period 6 December to 22 December 2015. 2. The submission was put on behalf of the offender that he was only involved in the later period of the offences, similar to my findings in Dandan's sentence. I do not accept that submission. The agreed facts placed the offender with Alameddine and McArthur on 6 December 2015. I am satisfied beyond reasonable doubt that he was there on that occasion and involved in the planning of the offences from the earlier time. 3. The circumstance of aggravation relied on is that the offender was in company. This is of less significance in this case, because it did not reflect a united threat but rather that the offence required a number of offenders to be committed. 4. The offence involved entry to commercial premises at a time when it was expected that no-one would be present. The entry caused substantial damage to the Shopping Centre, the ATM and some damage to the stolen vehicles. The incident caused major disruption to the operation of the Shopping Centre and in particular the ANZ Bank. 5. The offence was committed for financial gain. 6. A ram raid is an objectively serious offence because of its impact on the owners of the property and also on public order: R v Elemes [2000] NSWCCA 235 at [24]. The offence inherently involves substantial damage and it is difficult for property owners to protect against: R v Reilly [2012] NSWCCA 166 at [37]. 7. The objective seriousness of the section 193B offence is determined by the value of the property involved and the mental element proved for the offence: R v Ly [2014] NSWCCA 78 at [86]. 8. Whilst there was no valuation of the property in the offender's possession I would infer that it was significant. There were four modern cars and a jet ski. The offender has accepted that he was reckless to the fact that each of them were the proceeds of crime. The offence involved a series of criminal offences. 9. I have taken into account the maximum penalty for each offence. Deterrence 1. General deterrence is of significance in this case. One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will meet with appropriate punishment. This is a case that has attracted media attention and it is a good vehicle for the application of general deterrence. 2. There is a need for specific deterrence. The offender has a criminal history and has been incarcerated on a number of occasions. The offender needs to understand by the imposition of the sentence in these matters, that if he continues to commit offences he will receive appropriate punishment. Aggravating factors 1. The damage caused by the offence was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. Many of these cases involve forced entry into premises that involves considerably less damage to the premises than was sustained in this case. I am satisfied beyond reasonable doubt that the damage caused in the commission of the section 113 offence was substantial. Mitigating factors 1. The offender has expressed remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has accepted responsibility for his actions and expressed remorse to the psychologist and his referees. I am satisfied on the balance of probabilities that the offender has expressed genuine contrition and remorse. 2. The offender entered pleas of guilty in the District Court: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The plea also indicates remorse. The appropriate discount for the plea of guilty is 10%. Other Matters 1. The offender has suffered from some physical ailments in custody including kidney stones and some rectal bleeding. Corrective Services suspected that he was hiding drugs internally, but this proved not to be the case. I note that he has not undergone a colonoscopy that was recommended by a doctor some months ago. He has reacted poorly to the pain and received a number of misconduct charges in custody as a result of his reactions. These medical complaints have made his time in custody more difficult. His current complaints are not overly serious in my view. 2. The offender suffered a dysfunctional upbringing and there is some reduction in his moral culpability as a result: Bugmy v The Queen (2013) 249 CLR 571 at [41] and [44]. 3. At the time of the offences the offender had a cocaine addiction. This is not a mitigating factor but does provide some explanation for the offender's conduct: R v Henry (1999) 46 NSWLR 346. 4. I have backdated the sentence to be partially accumulated on the sentence the offender received for driving whilst disqualified. 5. I have considered the issue of parity. I consider that the offender should receive the same sentence as that imposed on McArthur. The sentence imposed on Alameddine was reduced as a result of his serious medical condition. The offender was not on conditional liberty at the time of the offences. I have taken into account the mitigating factors relevant to the offender in assessing the appropriate accumulation of the sentences. Penalty 1. I have considered section 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other alternatives, that no penalty other than imprisonment is appropriate. 2. The offender is convicted. 3. This is an appropriate matter to impose an aggregate sentence. The sentences I would have imposed had separate sentences have been imposed are 4 years imprisonment for the section 113 offence, 16 months imprisonment for each of the section 154A offences and 3 years for the section 193B offence. 4. I make a finding of special circumstances. The offender has some medical conditions for which he has received sub-optimal treatment in custody. There is a need for residential rehabilitation that justifies a longer period of time on parole. 5. The offender is sentenced to an aggregate term of imprisonment of 6 years with a non-parole period of 4 years. 6. The sentence is to date from 23 March 2016. The non-parole period will expire on 22 March 2020 and the head sentence will expire on 22 March 2022. 7. The offender will be eligible to be released on parole on 22 March 2020. 8. I refer the offender to the Drug Court to be assessed as to his suitability for a Compulsory Drug Treatment Order. ********** 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. Decision last updated: 13 December 2018