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Court of Criminal Appeal 24 May 2017

Nasser v R

[2017] NSWCCA 104

Assault & violenceFraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE JOINT CRIMINAL ENTERPRISE SUBJECTIVE CIRCUMSTANCES STATUTORY AGGRAVATING FACTORS

Citation: Nasser v R [2017] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 24 May 2017
Judges: Hoeben CJ at CL, Price J, Fullerton J (judgment by Fullerton J)

Background

The applicant pleaded guilty in the Local Court to one count of dishonestly damaging property by fire with a view to obtaining a gain for another, contrary to s 197(1)(b) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 14 years imprisonment. The applicant was sentenced in the District Court to 6 years and 9 months imprisonment with a non-parole period of 4 years and 5 months.

The offence arose from a deliberately lit fire at a supermarket in Regents Park. The applicant had attended the store earlier that evening to help disable the alarm system. He then returned late at night with two unknown accomplices, piled goods together as a fuel load, poured petrol throughout the store and inside refrigerators, and set the store alight. Residential apartments occupied by four families, including a woman in the final term of pregnancy and a child under five, sat directly above the store. Residents were unable to use the main stairway and some were forced to jump from balconies to escape. Several were hospitalised for smoke inhalation and abrasions. An insurance claim of approximately $950,000 was subsequently lodged by one of the co-offenders.

The applicant was 35 years old at the time of sentence, had no criminal history, and presented evidence of good character and genuine remorse. He suffered from a chronic genetic condition (Familial Mediterranean Fever), had experienced the breakdown of his marriage, and had been in significant financial distress at the time of the offending. A forensic psychologist gave evidence that these circumstances had rendered the applicant susceptible to adverse peer group dynamics.

  • Whether the sentence of 6 years and 9 months imprisonment was manifestly excessive, having regard to both the objective seriousness of the offending and the applicant's subjective circumstances.
  • Whether the sentencing judge's emphasis on the actual materialisation of the risk to public safety amounted to a de facto extension of criminal liability, contrary to the principle in R v De Simoni.
  • Whether the sentencing judge's assessment of the applicant's awareness of residents above the store overstated the applicant's culpability.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding the sentence was neither unreasonable nor plainly unjust.

On the question of objective seriousness, Fullerton J found the offence was at the higher end of the scale. The fire was carefully planned, carried out in company, disabled safety mechanisms in advance, and was motivated by financial gain for a co-offender. The presence of residents in the apartments above, the explosive force of the fire, and the real danger to which those residents were exposed were all properly treated as significant aggravating factors. The Court also accepted that the statutory aggravating factor of committing the offence without regard for public safety was engaged.

The applicant argued the sentencing judge had, in effect, punished him more severely because the risk to public safety actually materialised, which he submitted crossed into punishing him for consequences he did not cause, in breach of the De Simoni principle. The Court rejected that argument. While a sentencing court cannot punish an offender for a more serious offence than the one charged, it is permissible to treat the actual materialisation of a risk as relevant to assessing how serious the offending was. The Court found no error in the sentencing judge's reasoning on this point.

On subjective circumstances, Fullerton J accepted that the applicant's emotional vulnerability offered some insight into the offending but did not significantly reduce culpability, given his age and his apparent willingness to assist. The Court acknowledged the applicant's genuine remorse, absence of prior convictions, and good rehabilitation prospects, but found that the sentencing judge had given appropriate weight to all of these factors. The Court noted that even if it might have imposed a different sentence, that does not establish manifest excess: the applicable standard requires the sentence to be unreasonable or plainly unjust, not merely one that the appellate court would have assessed differently.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence will not be disturbed on the ground of manifest excess merely because the appellate court might have exercised the sentencing discretion differently; the sentence must be unreasonable or plainly unjust.
  • The actual materialisation of a risk to public safety (as distinct from the mere existence of that risk) is a permissible sentencing consideration when assessing the objective seriousness of arson, and does not necessarily constitute punishment for an uncharged offence under the De Simoni principle.
  • Planning and preparation undertaken prior to the act of arson, such as disabling alarm systems, can form part of the overall objective seriousness of the offence itself, particularly where the fire is part of a coordinated criminal enterprise.
  • Where a co-offender stands to gain financially, the absence of personal financial benefit to the person who physically set the fire does not, of itself, substantially reduce that person's culpability under s 197(1)(b).
  • Subjective mitigating factors, including genuine remorse, medical conditions, emotional vulnerability, and the absence of prior convictions, remain relevant to sentence but must be weighed against the gravity of the objective circumstances, particularly where the offending posed serious danger to uninvolved members of the public.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 197(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- Lowndes v R (1999) 195 CLR 665; [1999] HCA 29
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- R v Dinos [1999] NSWCCA 208
- R v Khan [2016] NSWSC 1073
- R v Taula (2015) 248 A Crim R 502; [2015] NSWCCA 8
- Saleib [2005] NSWCCA 85
- Wong v R (2001) 207 CLR 584; [2001] HCA 64