Citation: Hello v R; El-Skaf v R; Bakkour v R; Hosainy v R [2010] NSWCCA 311
Court: New South Wales Court of Criminal Appeal
Date: 15 December 2010
Judge(s): Latham J, Rothman J, Price J
Background
Four co-offenders each pleaded guilty to one count of knowingly facilitating car rebirthing activity on an organised basis under s 154G(1) of the Crimes Act 1900, an offence carrying a maximum penalty of 14 years imprisonment and a standard non-parole period of four years. Their roles varied in nature and degree. Two applicants (Bakkour and Hosainy) were centrally involved in the systematic theft of motor vehicles and the purchase of damaged vehicles at auction, which were then repaired using stolen parts and resold. The remaining two (Hello and El-Skaf) played supporting roles: Hello placed orders for stolen vehicles and on-sold rebirthed cars, while El-Skaf provided storage for seven stolen vehicles knowing they would be used in rebirthing.
All four were sentenced in the District Court by Cogswell SC DCJ in November 2009. The sentences ranged from a non-parole period of two years and six months (Bakkour, Hello, and El-Skaf) to three years (Hosainy), each with varying balance-of-term periods.
Each applicant sought leave to appeal against the severity of their sentence, though on differing grounds. The appeals raised questions about the sentencing judge's assessment of objective gravity, parity between co-offenders, and whether the sentences were manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in his assessment of the objective gravity of the offences
- Whether there was an unjustified disparity in sentence between co-offenders, particularly as between Hello and Hosainy
- Whether the sentencing judge failed to take into account one offender's onerous bail conditions (relevant to Hello)
- Whether the sentences imposed were manifestly excessive
Decision
The Court of Criminal Appeal granted leave to appeal in all four matters but allowed only Hello's appeal. The Court found that the sentencing judge had made an identifiable error in assessing the objective gravity of Hello's offending and that a disparity existed between Hello's sentence and those of relevant co-offenders. In particular, Hello's role was more limited than that of Bakkour and Hosainy, yet his non-parole period was equivalent to Bakkour's and not meaningfully differentiated in a way that reflected the parity principle. The Court also found that onerous bail conditions Hello had endured were not adequately factored into the sentence, which warranted a reduction.
The appeals brought by El-Skaf, Bakkour, and Hosainy were dismissed. In those cases, the Court found no manifest error in the sentences imposed below. Rothman J, in a separate concurrence, emphasised that manifest excess arises where an outcome evidences an error in the understanding or application of sentencing principle, not merely where an appellate court might have reached a different result. His Honour also clarified that there is no arithmetic relationship between a "mid-range" offence and the maximum penalty: a mid-range offence does not automatically attract a sentence approximating half the maximum.
The Court noted that s 154G is drafted in deliberately wide terms to capture every stage of the rebirthing process. It observed that Bakkour and Hosainy had received a considerable advantage by pleading to a single count under s 154G rather than facing multiple charges of stealing motor vehicles under s 154F.
Orders Made
Hello:
- Leave to appeal granted
- Appeal allowed
- Sentence of 24 November 2009 quashed; in lieu, a non-parole period of 2 years imposed, dating from 17 November 2009 and expiring 16 November 2011, with a balance of term of 17 months expiring 16 April 2013
El-Skaf:
- Leave to appeal granted
- Appeal dismissed
Bakkour:
- Leave to appeal granted
- Appeal dismissed
Hosainy:
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Manifest excess is not established simply because an appellate court might have imposed a different sentence. As confirmed by the Court of Criminal Appeal, it arises only where the outcome itself evidences an error in the understanding or application of sentencing principle.
- There is no arithmetic relationship between a mid-range offence and the maximum penalty. A mid-range characterisation does not require the sentence to commence at or approximate half the maximum.
- Onerous bail conditions are a relevant sentencing consideration. Where a sentencing judge fails to take them into account, that omission may constitute an identifiable error warranting appellate intervention.
- Parity between co-offenders requires that sentencing differences reflect genuine differences in culpability. Where an offender's role is materially less significant than that of co-offenders, sentences that do not reflect that distinction may be set aside.
- Under s 154G of the Crimes Act 1900, the offence of facilitating organised car rebirthing is deliberately broad in scope and is intended to capture participants at every stage of the process, without requiring proof of a formal hierarchy among offenders.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 154F, 154G, 188
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Firearms Act 1996 (NSW)
Cases:
- R v Bilal Bakkour; R v Nasis Javelosa [2009] NSWDC 405
- R v Hamieh [2010] NSWCCA 189
- R v Najem [2008] NSWCCA 32
- Thalari v R [2009] NSWCCA 170
- R v Way [2004] NSWCCA 131
- Markarian v The Queen (2005) 228 CLR 357
- House v The King (1936) 55 CLR 499
- Hili v The Queen; Jones v The Queen [2010] HCA 45