Citation: R v Obeid [2019] NSWDC 204
Court: District Court of New South Wales
Date: 30 April 2019
Judge: Bennett SC DCJ
Background
The offender, a 35-year-old man, was involved in a joint criminal enterprise focused on the theft and rebirthing of watercraft (predominantly jet skis) and motor vehicles. Rebirthing involves disguising a stolen vehicle or vessel by replacing or altering its identifying numbers so it can be re-registered and sold.
The offender's conduct spanned approximately 14 months from December 2015 to January 2017. It included obtaining a stolen jet ski hull to rebirth and sell a stolen craft for $13,000 to an unsuspecting buyer, directing another person by telephone to steal further jet skis, and possessing stolen motor vehicles at his property with tools consistent with stripping ignition barrels.
The offender pleaded guilty on the day set down for trial to three charges, with a fourth offence (possessing a stolen garden edger) taken into account on a Form 1.
Legal Issues
- What guilty plea discounts were appropriate for count 1 (where negotiations had been ongoing) and for counts 2 and 3 (which were added by ex officio indictment on the day of trial)?
- Where did the primary offence fall on the scale of objective seriousness, having regard to the standard non-parole period framework?
- How did parity principles apply when co-offenders had previously been sentenced?
- Whether the aggregate sentence should be served by way of an intensive corrections order rather than full-time custody, given the offender's personal circumstances and rehabilitation prospects.
Decision
Guilty Plea Discounts
The court applied a 25% discount to counts 2 and 3 because those charges were only included in the indictment on the day of trial, making that the first realistic opportunity to plead guilty to them (at [2]). For count 1, where the offender could have entered a plea earlier, the court allowed a 20% discount, reflecting the history of ongoing negotiations and an early indication of willingness to plead (at [3]). The discounts were applied to indicative sentences arrived at by intuitive synthesis of all objective and subjective factors, not as a staged arithmetical exercise (at [4], [10]).
Objective Seriousness
The court placed the primary offence (s 154G, carrying a 14-year maximum and a four-year standard non-parole period) at roughly halfway between the low end and the mid-range of objective gravity (at [11]). The offending involved a degree of planning and organisation, including directing others to steal, fabricating statutory declarations and sales receipts, and selling a rebirthed craft to an innocent buyer. However, the planning was not so sophisticated as to justify treating it as an aggravating factor beyond what the offence type ordinarily involves (at [11], [75]).
Parity with Co-offenders
Two co-offenders, the Ghazzaoui brothers, had previously received sentences of full-time imprisonment exceeding two years, which at the time of their sentencing precluded an intensive corrections order. The court noted that the present offender's criminal role, while different and in some respects more physically hands-on, involved fewer vessels and a shorter period of offending. The court applied parity principles cautiously, observing that the specific vessels in the present charges did not clearly overlap with those in the Ghazzaoui proceedings (at [22]-[24], [70]-[71]).
Subjective Factors and Mode of Custody
The court accepted the offender's remorse as genuine and found strong prospects for rehabilitation, supported by his non-association with former criminal peers and his compliance with bail conditions (at [47]-[49], [76]). The court was circumspect about a psychologist's diagnosis of longstanding severe depression, finding it inconsistent with the organised, financially motivated nature of the offending (at [49], [58]). Significant weight was given to the offender's role as carer for his seriously unwell mother and his pregnant wife (at [69]). The court was satisfied that an intensive corrections order would better address the risk of reoffending than full-time detention, and imposed an aggregate sentence of 2 years and 4 months to be served in the community (at [82], [84]).
Orders Made
- The offender was convicted on three counts on the indictment; the Form 1 offence was taken into account.
- Aggregate sentence of 2 years and 4 months, to be served by way of an intensive corrections order, commencing 30 April 2019.
- The offender was required to report to the Community Corrections Office at Bankstown within seven days.
- Standard conditions applied under s 73 of the Crimes (Sentencing Procedure) Act 1999, including no further offending and submission to supervision.
- 200 hours of community service imposed as an additional condition of the intensive corrections order.
Key Takeaways
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Guilty plea discounts are calibrated to the realistic first opportunity to plead: where new counts are added by ex officio indictment on the day of trial, the full 25% discount applies to those counts, while a lesser discount may apply to an earlier-charged count where a plea could reasonably have been entered sooner (at [2]-[3]).
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Under the standard non-parole period framework, the court is not to follow a mechanical tiered process; instead, it must conduct an intuitive synthesis of all objective and subjective factors, with the standard non-parole period and the maximum penalty serving as legislative guideposts rather than fixed reference points (at [10]).
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Parity principles apply across co-offenders in a joint enterprise, but their operation is limited where the specific conduct the subject of each sentence does not clearly overlap, and differences in role and extent of involvement justify different outcomes (at [23]-[24]).
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A finding of good rehabilitation prospects, compliance with bail, and significant family carer responsibilities can support an intensive corrections order even where the sentencing threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 is clearly crossed (at [72], [84]).
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Where an offender raises mental health as a mitigating factor, the sentencing court will scrutinise whether the condition is consistent with the nature of the offending: organised, planned, financially motivated conduct will sit uneasily with claims that the offence was driven or materially contributed to by a depressive illness (at [49], [58]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
Cases
- Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Markarian v R 2005 HCA 25
- McNaughton [2006] NSWCCA 242
- Muldrock v R 2011 HCA 39
- R v Borkowski 2009 NSWCCA 102
- R v Osenkowski (1982) 5 A Crim R 394
- Tepania v R [2018] NSWCCA