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Court of Criminal Appeal 21 November 2012

R v Tannous; R v Fahda; R v Dib

[2012] NSWCCA 243

Fraud & dishonestyTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE SENTENCING CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE DISCRETION TO DECLINE TO INTERVENE OFFENDER RELEVANT TO DISCRETION

Citation: R v Tannous; R v Fahda; R v Dib [2012] NSWCCA 243
Court: Court of Criminal Appeal, NSW
Date: 21 November 2012
Judges: Basten JA; Hall J; Beech-Jones J

Background

Three respondents each pleaded guilty to facilitating organised car rebirthing activities, contrary to s 154G(1) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of 14 years imprisonment and a standard non-parole period of four years. In early 2012, the District Court sentenced each respondent to imprisonment of between 19 and 20 months, to be served in the community by way of intensive correction orders (ICOs). One respondent also received a concurrent five-month ICO for participating in a criminal group.

The Director of Public Prosecutions appealed all three sentences under s 5D of the Criminal Appeal Act 1912 (NSW), arguing that each sentence was manifestly inadequate in terms of both its length and the manner in which it was to be served. A central question was whether the sentencing judge had adequately distinguished the case from the Court of Criminal Appeal's earlier decision in Regina v Hamieh [2010] NSWCCA 189, in which a full-time custodial sentence had been imposed for a similar offence.

The sentencing judge had sought to justify the ICOs on rehabilitation grounds, agreements to pay compensation, and differences between these offenders and Mr Hamieh. The Crown submitted those distinguishing factors were insufficient to warrant departing from full-time custody.

  • Whether the sentencing judge erred in assessing the seriousness of the car rebirthing offences under s 154G(1)
  • Whether ICOs were appropriate in the circumstances, having regard to the principles in Hamieh and the nature of the offending
  • Whether a suitability assessment report is a mandatory pre-condition to making an ICO under the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing court was required to impose conditions prescribed by the Crimes (Administration of Sentences) Regulation 2008 (NSW) when making an ICO
  • Whether, in a Crown appeal, delay, Crown-appeal anxiety, and parity with co-offenders are relevant to the discretion to intervene
  • Whether time served under an ICO should count toward any re-sentence of full-time imprisonment

Decision

The Court of Criminal Appeal allowed the Crown appeals and resentenced all three respondents to full-time imprisonment. The Court found that the sentencing judge had not adequately distinguished Hamieh and had erred in assessing the gravity of the offending. Facilitating organised car rebirthing on significant occasions warranted full-time custody, and the personal circumstances and rehabilitation prospects of these offenders did not take the cases outside that principle.

On the ICO framework, the Court confirmed that obtaining a suitability assessment report under s 69 of the Crimes (Sentencing Procedure) Act 1999 is effectively a mandatory pre-condition to making an ICO, because the court is required to have regard to the report's contents and the power to make the order is conditioned on an affirmative finding of suitability. The Court also noted that the sentencing judge appeared to have overlooked the separate requirement under s 81(2) of the Crimes (Administration of Sentences) Act 1999 to impose mandatory conditions prescribed by regulation, though it was unnecessary to determine the consequences of that omission.

The Court acknowledged that factors such as delay between arrest and sentence, the anxiety caused by a Crown appeal, and parity with co-offenders are relevant to the discretion whether to intervene under s 5D. In exercising that discretion, the Court gave credit for time already served under the ICOs and directed that such time count toward the new sentences of full-time imprisonment.

Orders Made

  • All three sentences imposed by Syme DCJ were set aside.
  • Tannous: sentenced to 12 months (fixed term) for participating in a criminal group commencing 27 January 2012; and 18 months non-parole period plus nine months balance of term for car rebirthing commencing 27 July 2012; to be released on parole 26 January 2014.
  • Fahda: sentenced to a non-parole period of 20 months plus 12 months balance of term for car rebirthing commencing 27 January 2012; to be released on parole 26 September 2013.
  • Dib: sentenced to a non-parole period of 20 months plus 12 months balance of term for car rebirthing commencing 23 February 2012; to be released on parole 22 October 2013.
  • In each case, time served under the District Court sentence was directed to count toward the sentence imposed by the Court of Criminal Appeal.

Key Takeaways

  • Facilitating organised car rebirthing on significant occasions under s 154G(1) of the Crimes Act 1900 generally warrants full-time custodial sentences; personal rehabilitation prospects and compensation agreements are not, of themselves, sufficient to depart from that position.
  • A suitability assessment report under s 69 of the Crimes (Sentencing Procedure) Act 1999 is effectively a mandatory pre-condition to making an ICO, given that the court must have regard to the report and the power to make the order depends on an affirmative suitability finding.
  • Under s 81(2) of the Crimes (Administration of Sentences) Act 1999, a sentencing court making an ICO must also impose the mandatory conditions prescribed by the Crimes (Administration of Sentences) Regulation 2008; that obligation sits outside the Crimes (Sentencing Procedure) Act 1999 and can be overlooked.
  • In Crown appeals under s 5D of the Criminal Appeal Act 1912, the discretion to decline to intervene may properly take into account delay between arrest and sentence, anxiety generated by the Crown appeal itself, and parity with co-offenders.
  • Where an offender has served time under an ICO that is subsequently quashed on Crown appeal and replaced with full-time imprisonment, the Court of Criminal Appeal may direct that time served under the ICO counts toward the new sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93T, 154G, 188
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 9, 12, 44, 66, 67, 69, 64–73A
- Crimes (Administration of Sentences) Act 1999 (NSW), s 81
- Crimes (Administration of Sentences) Regulation 2008 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D

Key Cases:
- Regina v Hamieh [2010] NSWCCA 189
- R v Boughen; R v Cameron [2012] NSWCCA 17
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- House v The King [1936] HCA 40; 55 CLR 499
- Ibbs v The Queen [1987] HCA 46; 163 CLR 447
- R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
- R v Agius; R v Zerafa [2012] NSWSC 978
- Sullivan v R; Skillin v R [2008] NSWCCA 296