Citation: R v Hussein EL-SKAF; R v Mohamad HELLO [2009] NSWDC 406
Court: District Court of New South Wales
Date: 24 November 2009
Judge(s): Cogswell SC DCJ
Background
Two offenders, referred to here as the first offender (Hello) and the second offender (El-Skaf), were sentenced following guilty pleas to knowingly facilitating organised car rebirthing activities, an offence under s 154G(1) of the Crimes Act 1900. The offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of four years. Both men were co-offenders alongside two other individuals sentenced in related proceedings.
The first offender ordered two stolen cars from the ringleaders of the scheme, cars valued at $7,000 and $25,000 respectively, and was involved in repairing, registering, and reselling at least one of them. The second offender allowed his house to be used to hide stolen vehicles and personally dismantled seven of those cars, admittedly motivated by a need for money.
The central questions at sentence concerned the objective seriousness of each offender's conduct, the appropriate discount for guilty pleas entered after negotiations and not at the earliest opportunity, and the weight to be given to each offender's personal circumstances.
Legal Issues
- Where each offender's conduct sat within the range of objective seriousness for the s 154G(1) offence
- What guilty plea discount was appropriate for each offender, given that pleas were entered after negotiations rather than at the first available opportunity
- How personal circumstances, including traumatic backgrounds, family responsibilities, and employment history, bore on the sentence for each offender
Decision
The sentencing judge assessed both offenders as falling in the middle of the range of objective seriousness, and toward the lower end of that middle range, given the relatively limited number of cars each was involved with compared to the principal offenders. The first offender's conduct was treated as more directly active, involving the ordering, repair, registration, and resale of rebirthed vehicles. The second offender's role, while involving seven cars, was limited to dismantling; there was no evidence he participated in reassembling or reselling vehicles.
On the guilty plea discount, the judge accepted the first offender's argument that his plea was entered at the first realistic opportunity after the charges were rationalised from seven counts to one, warranting a 25 percent discount. The second offender's plea, entered after negotiations without that same explanation, attracted a 15 percent discount. The judge declined to treat the second offender's plea as deserving a higher reduction.
Personal circumstances were considered for both men. The first offender had experienced significant trauma in Lebanon, held stable employment as a tiler, and had a young child with medical needs. The second offender had a large family, limited English, and had been subject to onerous bail conditions including reporting to police up to four times per week and a curfew, conditions the judge treated as a form of partial custody for sentencing purposes.
The judge sentenced the first offender to 4.5 years imprisonment with a non-parole period of 2.5 years, and the second offender to 5 years imprisonment with a non-parole period of 2.5 years. The longer head sentence for the second offender reflected his involvement with a greater number of vehicles.
Orders Made
- The first offender (Hello) sentenced to 4 years and 6 months imprisonment, commencing 17 November 2009, with a non-parole period of 2 years and 6 months, expiring 16 May 2012; overall sentence expires 16 May 2014
- The second offender (El-Skaf) sentenced to 5 years imprisonment, commencing 18 November 2009, with a non-parole period of 2 years and 6 months, expiring 17 May 2012; overall sentence expires 17 November 2014
- A Form 1 certificate signed in relation to the first offender's additional offence of knowingly making a false statement to the Roads and Traffic Authority
Key Takeaways
- The District Court confirmed that s 154G(1) of the Crimes Act 1900 targets organised car rebirthing as a serious and distinct criminal enterprise, with Parliament emphasising community harm including permanent vehicle loss, safety risks from structural vehicle modifications, and the corruption of legitimate tradespeople.
- A guilty plea entered only after charges were substantially rationalised through negotiation can still attract a 25 percent discount if the sentencing court accepts it represented the first realistic opportunity to plead, though this will turn on the specific procedural history of the case.
- Where a plea followed negotiations but no comparable charge reduction occurred, a more modest discount of 15 percent may be appropriate.
- Onerous bail conditions, such as reporting multiple times per week combined with a curfew, can be treated as a form of partial custody and taken into account in mitigation at sentencing.
- Offenders who played a supporting or facilitative role in a rebirthing enterprise, rather than directing it, may be assessed toward the lower end of the middle range of objective seriousness, even where multiple vehicles were involved.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 154G(1) (knowingly facilitating organised car rebirthing activities)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 (Form 1 additional offences)
Cases:
- R v Mason [2007] NSWCCA 32 (Court of Criminal Appeal observations on car rebirthing enterprises and community harm)
- R v Bilal BAKKOUR; R v Nasis JAVELOSA; R v Hussein EL-SKAF; R v Mohamad HELLO [2009] NSWDC 405 (related sentencing of co-offenders)