Citation: R v Bakkour; R v Javelosa; R v El-Skaf; R v Hello [2009] NSWDC 405
Court: District Court of New South Wales
Date: 20 November 2009
Judge(s): Cogswell SC DCJ
Background
Two offenders, referred to here as Bakkour and Javelosa, each pleaded guilty to knowingly facilitating organised car rebirthing activity, an offence under section 154G(1) of the Crimes Act 1900 (NSW). The offence was introduced in 2006 and carries a maximum of 14 years imprisonment and a standard non-parole period of four years.
Between March and July 2007, the two men systematically stole cars from the eastern and inner western suburbs of Sydney. Police gathered extensive electronic and physical evidence, including intercepted mobile phone calls, which revealed a well-organised operation. The men stole cars to order, charged varying fees depending on difficulty, and delivered vehicles to an accomplice whose garage was used to process and strip them.
Bakkour was involved in stealing 20 cars; Javelosa was involved in stealing 18. Two co-offenders, El-Skaf and Hello, were sentenced separately in related proceedings (R v El-Skaf; R v Hello [2009] NSWDC 406).
Legal Issues
- What is the appropriate sentence for the then-new offence of knowingly facilitating organised car rebirthing under section 154G(1) of the Crimes Act 1900?
- Where on the spectrum of objective seriousness did the offending of each accused fall?
- What weight should be given to mitigating factors, including early guilty pleas, remorse, and the differing personal circumstances of each offender?
Decision
The court began by assessing the objective seriousness of the offending. Cogswell SC DCJ found the conduct sat above the mid-range of objective seriousness. The scale of the operation, the predatory and systematic nature of the car thefts, the taking of orders from associates, and the number of vehicles involved (20 for Bakkour, 18 for Javelosa) all elevated the seriousness of the offending.
The court noted that, at the time of sentencing, the Court of Criminal Appeal had not yet considered the new section 154G(1) offence. The judge drew on remarks made in R v Mason [2007] NSWCCA 32, where the Chief Judge at Common Law observed that car rebirthing inflicts considerable loss on vehicle owners and insurers alike. The court also referred to the Second Reading speech for the 2006 legislation to explain Parliament's intentions in creating the offence, including concerns about permanent loss of vehicles to owners, the risk of structurally compromised cars being sold to innocent buyers, and the corruption of legitimate tradespeople by organised criminal networks.
The court was careful to note that in this particular case there was no suggestion of dangerous physical alterations to vehicles. Each offender's different personal circumstances, including evidence of remorse and the timing of their guilty pleas, were taken into account in arriving at individual sentences.
Orders Made
- Bakkour: sentenced to 4.5 years imprisonment with a non-parole period of 2.5 years, backdated by 1 month and 24 days.
- Javelosa: sentenced to 5.5 years imprisonment with a non-parole period of 3 years, backdated by 2 months and 26 days.
- Bail refused for El-Skaf and Hello pending sentencing on 24 November 2009.
- El-Skaf and Hello remanded in custody to appear at Parramatta District Court on 24 November 2009.
Key Takeaways
- The District Court confirmed that section 154G(1) of the Crimes Act 1900, introduced in 2006, reflects a clear parliamentary intention to treat organised car rebirthing as a distinct and serious category of offending, attracting a maximum of 14 years and a standard non-parole period of four years.
- At the time of this decision, no Court of Criminal Appeal guidance existed on the new offence, making this an early sentencing precedent at District Court level for systematic rebirthing activity.
- Objective seriousness above the mid-range was established here by the combination of the volume of stolen vehicles, the predatory and organised nature of the operation, the acceptance of orders from third parties, and the commercial character of the enterprise.
- Early guilty pleas, remorse, and the individual personal circumstances of each offender were each weighed in mitigation, producing meaningfully different sentences between co-offenders of comparable involvement.
- Where Parliament has fixed a standard non-parole period for an offence, sentencing courts must treat that benchmark as a reference point, calibrating upward or downward based on the objective and subjective features of each case.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 154G(1) (knowingly facilitate organised car rebirthing activity)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
Cases:
- R v Mason [2007] NSWCCA 32