Citation: R v Mohamed; R v Houry [2018] NSWDC 100
Court: District Court of New South Wales
Date: 8 March 2018
Judge: Montgomery DCJ
Background
Two offenders pleaded guilty to being accessories after the fact to the serious indictable offence of demanding money with menaces with intent to steal, contrary to section 350 of the Crimes Act 1900 (NSW). The maximum penalty for that accessory offence is five years' imprisonment. The primary offence itself, which was committed by others, involved sustained demands for $300,000 made upon a victim at his home in front of his wife.
The offenders' role was characterised by the Crown as "foot soldier" work. For payments of $1,500 and $2,000 respectively, they agreed to retrieve a bag of money from a car parked outside a suburban home. They had come to know the person who engaged them through a local mosque. The court accepted that neither offender was aware of the preceding menaces and demands made upon the victim, though each acknowledged the arrangement was "shady."
One offender (Mohamed) had no prior criminal history. The other (Houry) had prior Queensland convictions including robbery with actual violence, for which he had served an Intensive Corrections Order, and had otherwise maintained a clean record for over a decade before the present offending.
Legal Issues
- Whether the objective seriousness of the offending crossed the threshold under section 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), requiring that no penalty other than imprisonment be imposed
- Whether, having determined that imprisonment was warranted and the likely term would not exceed two years, either or both offenders were suitable for an Intensive Corrections Order (ICO)
- What utilitarian discount applied for the early pleas of guilty
- How to apply the instinctive synthesis approach to arrive at the appropriate sentence for each offender
Decision
Montgomery DCJ was satisfied that the objective seriousness of both offenders' conduct exceeded the threshold in section 5(1), such that no penalty other than imprisonment was appropriate. Both offenders and the Crown accepted this determination. The court also determined that the likely sentences would each be no more than two years, making ICO eligibility a live question for both.
A 15 percent utilitarian discount was applied to each offender's sentence to reflect early pleas of guilty, consistent with the principles in R v Thompson; R v Houlton. The pleas had been offered approximately one year before trial and entered shortly after committal.
Intensive Corrections Order Assessment Reports were obtained for both offenders. One offender (Mohamed) was found to be suitable for an ICO but could not be sentenced by that means because no community service work was available. His sentence was recorded in the judgment as imprisonment. The other offender (Houry) was also assessed as suitable and had signed an undertaking to comply with the order's conditions. Applying instinctive synthesis as directed by Muldrock v The Queen, the court determined that a sentence of 1 year and 8 months served by way of ICO was appropriate for Houry, reflecting the objective seriousness of the offence, the purposes of punishment including specific and general deterrence, and the low assessed risk of reoffending.
The court noted the significance of family circumstances, support networks, and rehabilitation prospects in arriving at sentences for both offenders, while emphasising that the restrictions imposed by an ICO carry genuine punitive weight.
Orders Made
- Houry sentenced to imprisonment for 1 year and 8 months.
- Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence is to be served by way of an Intensive Corrections Order, subject to mandatory conditions under the Crimes (Administration of Sentences) Act 1999 (NSW).
- Non-compliance with ICO conditions may result in sanctions including a formal warning, more stringent conditions, home detention, or revocation of the ICO; revocation would require the offender to serve the remainder in full-time custody unless the State Parole Authority directs otherwise.
- Houry was required to sign relevant documents before leaving court and to report to Corrective Services on 15 March 2018.
Note: The orders section of the provided text covers Houry only. Orders made in respect of Mohamed are not fully reproduced in the provided text.
Key Takeaways
- Both offenders crossed the section 5(1) threshold requiring imprisonment despite playing a limited "foot soldier" role, underscoring that accessory liability for serious indictable offences carries real sentencing weight even where direct involvement in the primary offence is absent.
- A 15 percent utilitarian discount for guilty pleas was appropriate where offers to plead were made approximately one year before the listed trial date and pleas were entered shortly after committal, consistent with R v Thompson; R v Houlton.
- Where an offender is assessed as suitable for an Intensive Corrections Order but no community service placements are available, the court cannot impose an ICO on that basis, illustrating a practical constraint on this sentencing option independent of the offender's suitability.
- Under the instinctive synthesis approach confirmed in Muldrock v The Queen, the court weighed objective seriousness, general and specific deterrence, and rehabilitation prospects together rather than treating any single factor as a numerical determinant.
- Prior completion of an Intensive Corrections Order in another jurisdiction, even with partial non-compliance, did not preclude a court from again imposing an ICO where the offender was independently assessed as suitable and low-risk.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 99, 350
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 7(1), 69
- Crimes (Administration of Sentences) Act 1999 (NSW)
Cases
- Muldrock v The Queen (2011) 244 CLR 120
- R v Thompson; R v Houlton (2008) 49 NSWLR 383; [2002] NSWCCA 309
- R v Zamagias [2002] NSWCCA 17
- Veen v The Queen (No. 2) (1988) 164 CLR 465