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District Court 7 April 2017

R v Zacharigh Eid

[2017] NSWDC 76

Theft & property
KNOWINGLY FACILITATE ORGANISED CAR RE BIRTHING ACTIVITY

Citation: R v Zacharigh Eid [2017] NSWDC 76
Court: District Court of New South Wales
Date: 7 April 2017
Judge: Mahony SC DCJ

Background

The offender, a 19-year-old man at the time of the offending, was charged with one count of knowingly facilitating organised car re-birthing activity contrary to section 154G of the Crimes Act 1900. The offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 4 years.

The offending took place over approximately three weeks between 28 January and 19 February 2016 at premises in Punchbowl. The offender worked alongside three co-offenders, dismantling stolen vehicles and preparing parts for removal and resale. Police covert surveillance recorded the operation in detail. Over the 14-day monitored period, 16 stolen vehicles with an estimated combined value exceeding $550,000 were processed at the site.

The offender pleaded guilty at the earliest opportunity and had spent five days in custody following his arrest on 10 March 2016, remaining on bail with curfew and reporting conditions until sentencing. Three co-offenders were also charged in connection with the same operation.

Legal Issues

  • Where on the scale of objective seriousness did the offender's conduct fall, given section 154G covers a wide range of conduct?
  • What weight should the court give to general and specific deterrence in car re-birthing offences?
  • What discount applied for the early guilty plea, and how did the offender's subsequent offending affect subjective considerations?
  • Whether special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 warranted a variation to the usual non-parole to head sentence ratio?
  • How should parity principles operate as between the offender and his co-offenders, particularly Nabulsi and Reddy?

Decision

Objective Seriousness

The court rejected the Crown's submission that the offending fell within the mid-range of objective seriousness. Although 16 stolen vehicles worth over $550,000 were processed, the court found it necessary to consider all the circumstances, not merely the number and value of vehicles (at [39]). Critically, both co-offenders Nabulsi and Salameh directed the offender's activities, and the offender was paid for his labour only (at [41]). The court placed the objective seriousness halfway between the lower end and the mid-range of the scale (at [41]).

Aggravating and Mitigating Factors

The court identified two statutory aggravating factors: the offence was committed in company under section 21A(2)(e), and it involved multiple victims under section 21A(2)(m) (at [46]). However, the court was careful not to double-count the company element, recognising that organised re-birthing activity is inherently a group offence (at [46]). The offender received a 25 percent utilitarian discount for his early guilty plea (at [45]). His subsequent convictions for possessing a prohibited weapon and a prohibited drug, for which he received section 9 bonds in February 2017, meant he was not entitled to any additional leniency despite showing some insight into his offending (at [36]-[45]).

Special Circumstances

The court found special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (at [47]). The offender's youth, the fact that this was his first full custodial sentence, and his need for an extended supervisory period to support rehabilitation and address drug and gambling issues all justified varying the standard ratio between the non-parole period and the head sentence (at [47]).

Parity

Applying parity principles, the court noted that co-offender Nabulsi held a significantly higher role, was older, and had a prior criminal record, warranting a substantially longer sentence for Nabulsi (at [48]). By contrast, the offender's role was almost identical to that of co-offender Reddy, warranting a sentence of similar severity despite differences in their individual subjective circumstances (at [48]). The court declined to suspend the sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999 (at [49]).

Orders Made

  • The offender was convicted of knowingly facilitating organised car re-birthing activity contrary to section 154G of the Crimes Act 1900.
  • Total term of imprisonment: 2 years and 3 months.
  • Non-parole period: 1 year and 2 months, commencing 2 April 2017, terminating 1 June 2018.
  • Balance of term: 1 year and 1 month, commencing 2 June 2018, terminating 1 July 2019.
  • Parole eligibility date: 1 June 2018.

Key Takeaways

  • Under section 154G of the Crimes Act 1900, which captures a broad range of conduct across the re-birthing process, the sentencing court must assess objective seriousness by reference to all circumstances of the actual offending, not simply the number or value of vehicles involved (at [39]-[41]).

  • Where an offender in a re-birthing operation acted under direction and received payment for labour only, the District Court placed objective seriousness below the mid-range, even where the operation processed 16 vehicles worth over $550,000 (at [41]).

  • A sentencing court must take care not to double-count the "committed in company" aggravating factor where the group nature of the offending is already inherent in the charged conduct, as it is with organised re-birthing activity (at [46]).

  • Special circumstances justifying variation of the non-parole to head sentence ratio can be established where the offender is very young, faces a first custodial term, and requires extended post-release supervision to address rehabilitation, drug use, and gambling (at [47]).

  • Post-offence convictions, even where they result in relatively lenient outcomes such as section 9 bonds, are relevant to the assessment of prospects of rehabilitation and can preclude a finding that the offender is entitled to leniency on subjective grounds (at [36]-[45]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Couch-Clark v R [2010] NSWCCA 228
- Ibbs v R (1987) 163 CLR 447
- Janceski v R [2005] NSWCCA 288
- R v Hamieh [2010] NSWCCA 189
- Hello v R [2010] NSWCCA 311
- R v Tannous [2012] NSWCCA 243