AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 15 August 2024

R v Haouli

[2024] NSWDC 370

Fraud & dishonestyTheft & property
CRIME PROPERTY OFFENCES ENTER DWELLING WITH INTENT ATTEMPT TO STEAL MOTOR VEHICLE DISPOSE OF STOLEN PROPERTY SENTENCE

Citation: R v Haouli [2024] NSWDC 370
Court: District Court of New South Wales
Date: 15 August 2024
Judge: Newlinds SC DCJ

Background

The offender, a 50-year-old man (aged 47 at the time of the offences), committed a series of property offences over approximately two weeks in June and July 2022. The offending involved the theft and attempted theft of two motor vehicles, the fraudulent transfer of ownership of a third vehicle using forged documents, and associated unlawful entries into secure residential car parks in Mascot. All offending occurred while the offender was significantly affected by illicit drugs to which he was addicted.

A co-offender, Mr El Farra, was involved in some of the same offending. His Honour had already sentenced the co-offender in November 2023, imposing an aggregate term of two years and seven months to be served by way of an Intensive Corrections Order (ICO). The parity between the two sentences therefore required consideration.

Between first appearing for sentence and the final hearing, the offender completed a substantial period of residential rehabilitation at Wayback Drug and Alcohol Rehabilitation Service. The court adjourned the matter on multiple occasions to allow this rehabilitation to continue, noting consistently positive reports about the offender's progress.

  • What was the appropriate objective seriousness of each offence, having regard to the circumstances of the offending?
  • What weight should be given to the offender's drug addiction, rehabilitation progress, and other subjective factors in mitigation?
  • How should parity with the co-offender's sentence be approached, given differences in the charges and moral culpability?
  • Whether an aggregate sentence of two years' imprisonment could appropriately be served by way of an Intensive Corrections Order in the community.

Decision

The court assessed the objective seriousness of the principal offences as falling towards the lower end of the range. In relation to the theft of the Toyota Prado (sequence 7), the court noted there was no forced entry, no damage to the vehicle, and the car was ultimately returned to its owner. The attempted theft of the Mercedes (sequence 9) involved some planning and a vehicle worth more than $60,000, but was thwarted by security before completion. The fraudulent sale of the Toyota Corolla (sequence 12) involved forged documents and a profit of $15,000, reflecting at least some degree of planning.

The court applied a 25% discount to each sentence for the early guilty pleas entered in the Local Court. Indicative sentences before aggregation were 18 months for sequence 7 and 12 months for sequence 12. The offender had spent 263 days (approximately 8 months and 20 days) in pre-sentence custody, which was taken into account.

On the question of parity, the court considered the co-offender's sentence and the different charges each faced. The court concluded that an aggregate term of two years' imprisonment was appropriate for the offender, noting this was below the co-offender's aggregate term, which was consistent with the differences in culpability and charges between the two.

The court then turned to whether the sentence should be served by way of an ICO rather than full-time custody. His Honour found that the offender's sustained commitment to rehabilitation, demonstrated over a lengthy residential program, meant that returning him to custody now would likely undermine that progress, reduce his prospects of remaining drug-free, and increase the risk of reoffending. On that basis, the aggregate two-year term was ordered to be served in the community as an ICO with conditions directed at supporting ongoing medical supervision and abstinence from drugs.

Orders Made

  • The offender was convicted of all offences to which he pleaded guilty, with Form 1 matters taken into account.
  • An aggregate sentence of two years' imprisonment was imposed for sequences 7 and 12, commencing 15 August 2024, to be served by way of an Intensive Corrections Order.
  • ICO conditions included: no further offending; no restricted or prohibited drugs (except as prescribed); ongoing supervision by medical practitioners at Wayback at least every three months; monthly supervision by Dr Patrick Cheng (or as otherwise recommended); and at least monthly supervision by a psychologist.
  • For sequence 9 (aggravated enter dwelling with intent), the offender was convicted under s 10A of the Crimes (Sentencing Procedure) Act 1999 with no further penalty imposed.

Key Takeaways

  • The District Court confirmed that sustained, demonstrable progress in drug rehabilitation is a weighty mitigating factor capable of displacing full-time custody in favour of an ICO, even for a series of property offences involving planning and forged documents.
  • Parity with a co-offender's sentence does not require identical outcomes; the court examined differences in charges, roles, and moral culpability before arriving at a lower aggregate term for the offender compared to the co-offender.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction for an offence while imposing no further penalty, and the District Court applied this provision to the aggravated enter dwelling charge where the overall criminality was adequately captured by the other sentences.
  • A 25% discount for an early guilty plea entered in the Local Court was applied across the principal charges, consistent with the established approach to sentence discounting in NSW.
  • Where an offender's rehabilitation trajectory is genuinely at risk of being derailed by a period of full-time custody, the court may treat that disruption as a factor supporting a community-based order, provided the statutory threshold for an ICO is otherwise met.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 111, 154F, 188(1), 192E(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5A, 10A, 21A, 66

Cases
- Bugmy v The Queen [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Hoskins v R [2021] NSWCCA 169
- IS v R [2017] NSWCCA 116
- Mandranis v R [2021] NSWCCA 97
- Maxwell v R [2007] NSWCCA 304
- Nasrallah v R [2021] NSWCCA 207
- R v El Farra [2023] NSWDC 470
- R v Hayes [1984] 1 NSWLR 740
- R v Hosking [2020] NSWCCA 18
- R v Irwin [2019] NSWCCA 133
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
- Zheng v The King [2023] NSWCCA 64