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Court of Criminal Appeal 28 April 2017

Fayad v R

[2017] NSWCCA 81

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL OFFENCE IN THE NATURE OF A “RAM RAID” WHERE SERIOUS OFFENCE ON A FORM 1 CASES SAID TO BE COMPARABLE LEAVE GRANTED BUT APPEAL DISMISSED

Citation: Fayad v R [2017] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 28 April 2017
Judges: Simpson JA, Button J, N Adams J (unanimous)

Background

The appellant was a 49-year-old man sentenced in the District Court at Parramatta in November 2015 for an aggravated break and enter with intent to steal, commonly known as a "ram raid." The offence involved using two stolen vehicles to crash through the glass front doors of a shopping centre in the early hours of the morning in an attempt to steal one or more ATMs. Although the ATMs were not removed, significant property damage was caused and the offenders fled.

The appellant committed the ram raid while on bail in relation to earlier Local Court offences, including assault occasioning actual bodily harm in company. He asked the sentencing court to take three further offences into account on Forms 1, including two counts of taking and driving a conveyance (the stolen vehicles used in the raid) and being an accessory after the fact to a shooting. Virtually no subjective material was placed before the sentencing judge on his behalf.

The District Court sentenced the appellant to seven years' imprisonment, commencing 29 November 2013 and expiring 28 November 2020, with a non-parole period of four years and nine months. The maximum penalty for the offence under s 113(2) of the Crimes Act 1900 (NSW) is 14 years. The appellant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the sentence of seven years with a non-parole period of four years and nine months was manifestly excessive for an aggravated break and enter (ram raid) offence under s 113(2) of the Crimes Act 1900 (NSW).
  • Whether the sentencing judge erred by incorporating the agreed facts relating to the Form 1 accessory offence in too much detail.
  • Whether comparable cases demonstrated that the sentence fell outside the appropriate range.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. N Adams J, with whom Simpson JA and Button J agreed, found that the sentence, while high, was not unreasonable or plainly unjust in the circumstances. The Court was not persuaded that the sentencing judge had fallen into any appellable error.

On the question of comparable cases, the Court drew on established authority, including the High Court's endorsement in Hili v The Queen of the principle that sentencing statistics are illuminating but no more than historical records of past outcomes. They provide guidance and a yardstick but cannot substitute for a full examination of the individual offender's circumstances. The Court found that the statistics relied upon by the appellant did not capture the combined weight of the aggravating features in his case.

Those aggravating features were significant: the offence was committed while the appellant was on conditional liberty, he asked the court to take into account additional serious offences on Forms 1 (including being an accessory after the fact to a shooting), and he placed virtually no subjective material before the sentencing court. The Court concluded that the combination of these factors distinguished this case from the comparators advanced by the appellant and justified the sentence imposed.

The Court also addressed the complaint about the level of detail in the agreed facts relating to the accessory offence. That complaint was considered in the context of the overall sentencing exercise but did not displace the conclusion that no error had been established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Sentencing statistics for a class of offence are a useful yardstick but remain historical records only; they cannot override a careful assessment of the individual offender's objective and subjective circumstances, as confirmed in Hili v The Queen and applied here.
  • In dismissing the appeal, the Court of Criminal Appeal emphasised that the combination of offending on conditional liberty, serious Form 1 matters, and an absence of subjective mitigation can justify a sentence that sits toward the higher end of the range for a given offence.
  • A Form 1 offence that is itself serious, such as being an accessory after the fact to a shooting, is a legitimate and weighty consideration at sentence, even though it does not carry its own discrete penalty.
  • Under s 113(2) of the Crimes Act 1900 (NSW), the maximum penalty for aggravated break and enter with intent to commit a serious indictable offence is 14 years' imprisonment; the seven-year sentence imposed here was held to fall within a permissible exercise of the sentencing discretion.
  • No error was established simply because a sentence appears high when set against sentencing statistics, provided the judge has addressed the full circumstances of the individual case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(2), 98, 112(2), 113(2), 148, 154A, 319
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 33

Cases:
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Barbaro v R; Zirilli v R (2014) 305 ALR 323; [2014] HCA 2
- Forbes v R [2009] NSWCCA 292
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Johnson v R [2009] NSWCCA 204
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 19
- Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25
- McDonald v R [2011] NSWCCA 2
- McGeown v R [2014] NSWCCA 314
- R v Ceissman [2004] NSWCCA 466
- R v DBN [2005] NSWCCA 435
- R v Guthrie [2002] NSWCCA 77
- R v Lenthall [2004] NSWCCA 248
- R v Leslie [2009] NSWCCA 203
- R v Reilly; R v Smith [2012] NSWCCA 166