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Court of Criminal Appeal 23 October 2014

Haouchar v R

[2014] NSWCCA 227

Fraud & dishonestyTheft & property
CRIMINAL LAW SENTENCING APPEAL EXPRESS REFERENCE NO ELLIS FACTORS NO ARGUABLE POINT

Citation: Haouchar v R [2014] NSWCCA 227
Court: Court of Criminal Appeal
Date: 23 October 2014
Judges: Hoeben CJ at CL, Rothman J, RA Hulme J

Background

The applicant pleaded guilty in the District Court to facilitating a car rebirthing activity carried out on an organised basis, contrary to s 154G(1) of the Crimes Act 1900. The offending spanned nearly three years, from August 2009 to March 2012, and involved the applicant providing premises for storing and dismantling stolen vehicles, performing work on those vehicles, and assisting with their re-registration and disposal. Two further offences of dealing with property suspected to be proceeds of crime were taken into account on a Form 1 basis.

The applicant was sentenced to a non-parole period of one year and three months, with a total term of two years and six months. The maximum penalty for the principal offence was 14 years' imprisonment, with a standard non-parole period of four years. The sentencing judge made a finding of special circumstances, reducing the non-parole period to 50 per cent of the total term, partly because the applicant would be held in protective custody and required treatment for an anxiety disorder.

The applicant sought leave to appeal on two grounds: that the sentencing judge failed to adequately account for the onerous conditions under which he would serve his sentence, and that the discount for assistance to authorities was insufficient.

  • Whether the sentencing judge erred by not receiving or sufficiently considering evidence about the specific conditions under which the applicant would be held in custody, including the impact on his psychiatric condition
  • Whether the discount granted for assistance to police and the guilty plea adequately reflected the level of cooperation provided, including the onerous consequences the applicant would face as a result of that assistance

Decision

On the first ground, the Court found no arguable error. The sentencing judge was clearly aware of the applicant's psychiatric condition, having considered two psychiatrists' reports in detail. His Honour expressly noted that imprisonment would be more onerous for the applicant than for others and specifically found special circumstances on that basis, resulting in a reduced non-parole period. There was no suggestion the sentencing judge was unaware of the applicant's circumstances, and no additional evidence was required.

On the second ground, the Court found the discount for assistance and the guilty plea was not shown to be inadequate. The sentencing judge had received a confidential affidavit and described the cooperation as "full" and the assistance as "significant and useful." The Court noted, however, that there were no Ellis factors present (referring to R v Ellis (1986) 6 NSWLR 603, which concerns circumstances where an offender's cooperation is of particular significance in facilitating the prosecution of others), nor were the circumstances so exceptional as to require a deeper discount, such as where an offender personally risks confronting violent co-offenders.

Rothman J emphasised that sentencing is not an arithmetic exercise of applying percentage discounts. The task is one of intuitive synthesis, weighing all relevant factors to arrive at a sentence that reflects the seriousness of the offending. In the Court's view, the sentence could not legitimately have been set any lower while still remaining appropriate for both the offending and the offender.

The Court also found that even if any arguable error had been established, the applicant had not satisfied the requirement under s 6(3) of the Criminal Appeal Act 1912 that a less severe sentence was warranted in law and should have been imposed.

Orders Made

  • Leave to appeal refused

Key Takeaways

  • A sentencing judge's awareness of onerous custodial conditions does not need to take any particular form; express acknowledgment in the remarks on sentence and a consequential finding of special circumstances can be sufficient to demonstrate that those conditions were properly taken into account.
  • No error was established simply because the applicant sought to adduce further evidence particularising his custodial conditions, where the sentencing judge had already addressed the relevant psychiatric evidence in detail.
  • Discounts for assistance to authorities are not calculated by formula; the process requires an assessment of all sentencing purposes together, and there is a floor below which a sentence cannot fall without failing to reflect the seriousness of the offence.
  • The absence of Ellis factors (circumstances involving exceptional cooperation, such as wearing a wire against violent offenders) is relevant to assessing whether a discount for assistance has been set at the right level.
  • Under s 6(3) of the Criminal Appeal Act 1912, an applicant must satisfy the Court not only that error occurred, but also that a less severe sentence was warranted in law and should have been imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 154G(1), 193C(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 86(1)

Cases
- R v Ellis (1986) 6 NSWLR 603
- Pearce v R (1998) 194 CLR 610
- R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415
- R v Sukkar [2006] NSWCCA 92; (1996) 172 A Crim R 151
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- FS v R [2009] NSWCCA 301
- Bland v R [2014] NSWCCA 82
- LB v R [2013] NSWCCA 70