Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: R v Tannous; R v Fahda; R v Dib [2012] NSWCCA 243
• Hearing dates: 21 and 23 August 2012
• Decision date: 21 November 2012
• Before: Basten JA at [1]; Hall J at [91]; Beech-Jones J at [92]

Decision

In respect of the respondent Tannous:

(1) Set aside the sentence imposed by Syme DCJ in the District Court on 27 January 2012.

(2) Resentence the offender as follows:

(a) with respect to the offence of participating in a criminal group, contrary to s 93T(1) of the Crimes Act, impose a fixed term of imprisonment of 12 months to date from 27 January 2012;

(b) with respect to the offence of facilitating organised car rebirthing, contrary to s 154G(1) of the Crimes Act, impose a sentence of imprisonment consisting of a non-parole period of 18 months and a balance of term of nine months, commencing on 27 July 2012.

(3) Direct that the time served by the offender pursuant to the sentence imposed in the District Court is to count as part of the sentence imposed by this Court.

(4) Direct that Mr Tannous be released on parole on 26 January 2014.

In respect of the respondent Fahda:

(1) Set aside the sentence imposed by Syme DCJ in the District Court on 27 January 2012.

(2) Resentence the offender as follows:

With respect to the offence of facilitating organised car rebirthing, contrary to s 154G(1) of the Crimes Act, impose a sentence consisting of a non-parole period of 20 months and a balance of term of 12 months, commencing on 27 January 2012.

(3) The time served by the offender pursuant to the sentence imposed in the District Court is to count as part of the sentence imposed by this Court.

(4) Direct that Mr Fahda be released on parole on 26 September 2013.

In respect of the respondent Dib:

(1) Set aside the sentence imposed by Syme DCJ in the District Court on 23 February 2012.

(2) Resentence the offender as follows:

With respect to the offence of facilitating organised car rebirthing, contrary to s 154G(1) of the Crimes Act, impose a sentence consisting of a non-parole period of 20 months and a balance of term of 12 months, commencing on 23 February 2012.

(3) The time served by the offender pursuant to the sentence imposed in the District Court is to count as part of the sentence imposed by this Court.

(4) Direct that Mr Dib be released on parole on 22 October 2013.

• Catchwords: CRIMINAL LAW - appeal against sentence - evidence of offender's experience of sentence prior to appeal - whether open to offender to rely on such evidence to demonstrate that sentence unduly severe or not unduly lenient - such whether evidence may be taken into account upon re-sentencing; CRIMINAL LAW - Crown appeal against sentence - discretion to decline to intervene - whether delay between arrest and sentence, anxiety caused by Crown appeal, and parity with sentence imposed on co-offender relevant to discretion - Criminal Appeal Act 1912 (NSW), s 5D; CRIMINAL LAW - sentencing - intensive correction order - whether suitability assessment a pre-condition of making intensive correction order - requirement that sentencing court impose conditions - whether offenders re-sentenced to full-time imprisonment should have benefit of time served under intensive correction order - Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 69; Crimes (Administration of Sentences) Act 1999 (NSW), s 81; CRIMINAL LAW - sentencing - facilitate organised car rebirthing activities - significant activities on more than one occasion - whether full-time custodial sentence warranted - considerations relevant to sentencing - Crimes Act 1900 (NSW), s 154G; STATUTORY INTERPRETATION - construction of statute by reference to regulations - whether structure of statutory scheme incomplete without regulations - Crimes (Sentencing Procedure) Act 1999 (NSW), s 7; Crimes (Administration of Sentences) Act 1999 (NSW), s 81; Crimes (Administration of Sentences) Regulation 2008 (NSW); WORDS & PHRASES - "facilitate a car rebirthing activity" - "organised basis"
• Legislation Cited: Crimes Act 1900 (NSW), ss 93T, 154G, 188; Crimes (Administration of Sentences) Act 1999 (NSW), s 81; Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 9, 12, 44, 66, 67, 69, 64-73A; Pts 4, 5; Criminal Appeal Act 1912 (NSW), s 5D; Penalties and Sentences Act 1992 (Qld), ss 112-115; Sentencing Act 2002 (NZ), ss 54B-54K; Sentencing Act 1991 (Vic), ss 19, 20; Pt 3A; Sentencing Act 1995 (WA), ss 69-71; Trade Practices Act 1974 (Cth), Pt IVB
• Cases Cited: Brayson Motors Pty Ltd (In Liq) v Federal Commissioner of Taxation [1985] HCA 20; 156 CLR 651; Deputy Federal Commissioner of Taxation (SA) v Ellis & Clark Ltd [1934] HCA 54; 52 CLR 85; Director of Public Prosecutions v Karazisis v Karazisis [2010] VSCA 350; 206 A Crim R 14; Director of Public Prosecutions v Nikolic [2008] VSCA 226; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; Hello v R [2010] NSWCCA 311; House v The King [1936] HCA 40; 55 CLR 499; Ibbs v The Queen [1987] HCA 46; 163 CLR 447; Mason v R [2007] NSWCCA 32; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101; Mulato v R [2006] NSWCCA 282; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; R v Agius; R v Zerafa [2012] NSWSC 978; R v Bateson [2011] NSWSC 643; R v Boughen; R v Cameron [2012] NSWCCA 17; R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; Regina v Hamieh [2010] NSWCCA 189; Sullivan v R; Skillin v R [2008] NSWCCA 296; 51 MVR 582; Whelan v R [2012] NSWCCA 147
• Texts Cited: Sentencing Advisory Council (Vic) Suspended Sentences and Intermediate Sentencing Orders - Suspended Sentences Final Report - Part 2 (2008), Ch 6
• Category: Principal judgment
• Parties: Crown (Respondent in each matter); Raymond Tannous (Respondent 2009/49477); Mohammad Fahda (Respondent 2009/158517); Omar Dib (Respondent 2009/57607)
• Representation: Counsel: Ms T L Smith (Appellant); Mr H K Dhanji SC (Respondent Tannous); Mr T A Game SC (Respondent Fahda); Mr S J Buchen (Respondent Dib); Solicitors: S Kavanagh, Solicitor for Public Prosecutions (Appellant); Galbally Rolfe, Melbourne (Respondents)
• File Number(s): 2009/49477; 2009/158517; 2009/57607

Decision under appeal

• Jurisdiction: 9101
• Before: Syme DCJ
• File Number(s): 2009/49477; 2009/158517; 2009/57607

Judgment

1 BASTEN JA: Each of the respondents entered pleas of guilty in respect of offences of facilitating organised car rebirthing, contrary to s 154G(1) of the Crimes Act 1900 (NSW). The maximum penalty for such offences was 14 years imprisonment. The offence carried a standard non-parole period of four years imprisonment.

2 On 27 January 2012 Syme DCJ sentenced Mr Fahda and Mr Tannous to imprisonment for 20 months and 19 months respectively, in each case to be served by way of intensive correction in the community, pursuant to an intensive correction order: Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), s 7(1). On 23 February 2012 the respondent Dib was sentenced to imprisonment for 20 months, also to be served by way of intensive correction in the community.

3 In each case, the sentences were directed to commence on the date on which they were imposed. On 5 March 2012 the Director of Public Prosecutions gave notice of his intention to appeal under s 5D of the Criminal Appeal Act 1912 (NSW) in respect of each sentence on the ground that the sentence pronounced was manifestly inadequate. On 29 July 2012 further grounds were identified. Ground 1 asserted that in each case the sentencing judge had erred in her assessment of the seriousness of the car rebirthing offence. Ground 2 asserted that in each case the sentence was manifestly inadequate "as to the term and the manner in which [it was to be] served".

4 Mr Tannous had been separately sentenced for an offence of participating in a criminal group, contrary to s 93T(1) of the Crimes Act, an offence carrying a maximum penalty of five years imprisonment. For that offence he had been sentenced to five months imprisonment to be served by way of intensive correction in the community, and wholly concurrently with the car rebirthing sentence. In respect of that offence, the sentence was said to be manifestly inadequate (ground 3) and the "overall sentence" was said to be manifestly inadequate, apparently due to the failure to provide any degree of accumulation in respect of the sentences (ground 4).

5 In detailed reasons, the sentencing judge gave careful attention to the nature of the car rebirthing activities as a whole, the role of each offender and the personal circumstances of each offender. In each case, her Honour expressed the view that "an alternative to a full time custodial sentence" ought be considered or explored. She then made express reference to the "often competing considerations" to be taken into account in sentencing an offender, as identified in s 3A of the Sentencing Procedure Act. Next, and perhaps curiously, her Honour acknowledged the requirement in s 5 of the Sentencing Procedure Act that imprisonment should only be imposed if no other penalty was considered appropriate and said "it is for that reason that I adjourned all of these matters for an intensive correction order assessment": Judgment, p 20. The phraseology is curious because an intensive correction order can only be made in respect of an offender sentenced to imprisonment for not more than two years: s 7(1). Thus, before seeking an assessment as to the suitability of the offender for intensive correction in the community (pursuant to s 69 of the Sentencing Procedure Act) the judge must have been satisfied that a sentence of imprisonment was appropriate.

6 In ordinary English usage it might be thought oxymoronic to speak of imprisonment being served "in the community", rather than in a prison. Nevertheless, the intention underlying the comments of the sentencing judge should be respected. Although for the purposes of s 5 satisfaction that a sentence of imprisonment is required may suffice, the underlying principle requires attention to the possibility of an alternative to a full-time custodial sentence, if such an alternative is available within the statutory provisions for imprisonment.

Availability of intensive correction orders

7 In considering whether to make an intensive correction order in respect of each offender, the sentencing judge focused her reasoning upon the decision of this Court in Regina v Hamieh [2010] NSWCCA 189 (Beazley JA, Kirby and Johnson JJ). In Hamieh, the Court upheld an appeal by the Director in respect of an offence under s 154G(1), where the offender had been sentenced to 24 months imprisonment to be served by way of periodic detention. The Court quashed the sentence and imposed a period of full-time custody of three years, consisting of a non-parole period of two years and a balance of term of 12 months.

8 The sentencing judge sought to distinguish Hamieh on two bases. First, it was said that the respondent had a "poor prior record" showing "a history of disrespect for lawful authority which indicated a need for personal deterrence". Secondly it was said that Mr Hamieh's offence had involved 30 vehicles, although only two had parts from stolen vehicles.

9 The sentencing judge also noted the statements in Hamieh that periodic detention had "a strong element of leniency built into it" and accepted that the same could be said of an intensive correction order although she also noted, correctly, that it involved "a substantial element of coercion and serious consequences for failure to comply": Judgment, p 21.

10 It will be necessary to consider the soundness of the bases on which the sentencing judge sought to distinguish Hamieh. It will also be necessary to consider further the factors relevant to rehabilitation, to which her Honour had made reference in respect of each offender and the agreements by each to pay compensation. Finally, it will be necessary to take into account the submissions in relation to parity with co-offenders who had already been dealt with in respect of the same organised car rebirthing activity. Before considering those factors, it is convenient to identify the general principles applicable with respect to the serving of a sentence in the community, pursuant to an intensive correction order.

Intensive correction orders - general principles

11 In its original form, s 7 of the Sentencing Procedure Act provided that a sentence of imprisonment of not more than 18 months might be served by way of home detention. From 1 October 2010, the provision was varied so as to provide for imprisonment to be served by way of intensive correction in the community. That is to occur by the making of "an intensive correction order". Where such an order is made, the Court is not to set a non-parole period: s 7(2). Section 7 is described as being "subject to" the provisions of Pt 5 of the Sentencing Procedure Act. Further, in common with all sentences of imprisonment, it is also subject to the operation of Pt 4, which makes general provision for procedures in setting terms of imprisonment: see ss 44-63.

12 Part 5, by contrast, is specific to procedures for intensive correction orders: s 64-73A. An intensive correction order is not available in respect of certain sexual offences: s 66. Further, it may not be made unless the court is satisfied with respect to the conditions of eligibility in s 67. These include satisfaction that the offender is "a suitable person" to serve the sentence by way of intensive correction in the community: s 67(1)(b).

13 Section 69 states that before imposing a sentence of imprisonment "the court may refer the offender for assessment as to the suitability of the offender for intensive correction in the community": s 69(1). Whilst that provision confers a power, it appears that the obtaining of such a report is a necessary pre-condition to making such an order because there is a requirement for the court, in taking that step, to have regard to the contents of the assessment report on the offender: s 67(2)(a). Further, the power to make such an order is conditioned upon an affirmative assessment that the offender is a suitable person to serve the sentence in the community: s 67(4). A finding of suitability does not, however, mandate such an order: s 67(3).

14 The exercise of the power to make an intensive correction order is not solely contained within the Sentencing Procedure Act. There is a further requirement that the sentencing court impose conditions, prescribed as mandatory conditions by the Crimes (Administration of Sentences) Regulation 2008 (NSW), the obligation being imposed by s 81(2) of the Crimes (Administration of Sentences) Act 1999 ("the Administration Act").

15 Perhaps because a sentencing judge does not usually expect to find mandatory conditions upon which a sentence may be imposed in the Administration Act, that obligation appears to have been overlooked in the present case. There was some discussion in the course of argument as to the effect of that omission, which it is unnecessary to determine.

16 Simpson J has expressed the view that an offender should not be subject to an intensive correction order unless there is a real need for rehabilitation in the community: R v Boughen; R v Cameron [2012] NSWCCA 17 at [111] (Simpson J, Hislop and Latham JJ agreeing). Thus, where there was little if any prospect of the person convicted re-offending, the case was held not to lend itself to such an order: Boughen, at [110]. Simpson J articulated the reasoning underlying that conclusion in more detail in R v Agius; R v Zerafa [2012] NSWSC 978 at [92]-[116]. In particular, she held that the restrictions and constraints contained in the mandatory conditions gave rise to an implication that, absent a real risk of re-offending, the order would serve no purpose: at [107]. These views have recently been rejected by a five-judge bench: R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 at [96]-[100] (McClellan CJ at CL and Johnson J; Price, RA Hulme and Button JJ agreeing).

17 That the service of a sentence by way of intensive correction in the community is a more lenient penalty than full-time imprisonment was acknowledged by all parties in the present case, although there were differing views as to the degree of leniency involved. This court has accepted that such a sentence involves "a high degree of leniency": Boughen at [111]. In Whelan v R [2012] NSWCCA 147, Schmidt J (Allsop P and Davies J agreeing) accepted a submission by the Director that "an intensive correction order reflects a significant degree of leniency", while noting that it also involves a substantial punishment: at [120]. Those conclusions were clearly accepted by the offenders in the present case, each of whom filed an affidavit deposing to the harsh consequences which would follow were the intensive correction orders to be revoked, in favour of sentences involving full-time custody. The fact that there are significant restraints and the possibility of future incarceration for breach of conditions does not gainsay these views, but puts them in context: R v Pogson at [68], [100]-[101], [108]-[111].

18 Simpson J also expressed doubt in Agius as to whether, under the Sentencing Procedure Act, the imposition of such conditions could be seen as a "significantly punitive disposition", as had been held with respect to similar legislation in Victoria: see Director of Public Prosecutions v Nikolic [2008] VSCA 226 (Warren CJ, Vincent JA agreeing); Director of Public Prosecutions v Karazisis [2010] VSCA 350; 206 A Crim R 14 at [184] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing), both of which were referred to by Buddin J in R v Bateson [2011] NSWSC 643.

19 The Victorian cases there referred to were concerned with ss 19 and 20 of the Sentencing Act 1991 (Vic), as then in force. Those provisions were replaced by more comprehensive provisions, now found in Pt 3A of the Victorian Act, as inserted by the Sentencing Amendment (Community Correction Reform) Act 2011, which commenced on 16 January 2012.

20 Similar legislation also exists in Queensland: Penalties and Sentences Act 1992 (Qld), ss 112-115. In Western Australia there is power to make "intensive supervision orders" which are seen, not as a form of imprisonment, but as an intermediate step between other non-custodial options and imprisonment: Sentencing Act 1995 (WA), ss 69-71. New Zealand has adopted a similar approach: Sentencing Act 2002 (NZ), ss 54B-54K. (For a summary of such laws, now slightly out of date, see Sentencing Advisory Council (Vic), Suspended Sentences and Intermediate Sentencing Orders - Suspended Sentences Final Report - Part 2 (2008), Ch 6.)

21 At least in jurisdictions where such orders are treated as a form of imprisonment, they must have a significant punitive effect and therefore reflect, in all likelihood, a range of purposes identified in s 3A of the Sentencing Procedure Act. It is unlikely that their incidents or objectives would differ greatly if they were described as "intensive supervision orders". The use of the descriptor "correction" in the title probably reflects the same philosophy as does the use of the term "correctional centre" to include what were formerly known as prisons in the Administration Act.

22 Although, as a general rule, a statute cannot be construed by reference to regulations made under it, there are circumstances where the statute itself establishes the structure of a scheme which is incomplete, absent relevant regulations. In such a case, it may be appropriate to have regard to the regulations in order to understand the scheme. That principle has been applied in relation to the sales tax legislation in Deputy Federal Commissioner of Taxation (SA) v Ellis & Clark Ltd [1934] HCA 54; 52 CLR 85 at 91-92 (Dixon J); Brayson Motors Pty Ltd (In Liq) v Federal Commissioner of Taxation [1985] HCA 20; 156 CLR 651 at 657 (Gibbs CJ, Mason, Wilson, Deane and Dawson JJ). This principle has not been restricted to tax cases, but was accepted in respect of the regulation of franchising under Pt IVB of the Trade Practices Act 1974 (Cth), which was read with the Trade Practices (Industry Codes - Franchising) Regulations 1998 (Cth): Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [19] and [26] (Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ).

23 In the present case, s 81 of the Administration Act was premised on the assumption that there would be regulations prescribing mandatory conditions of an intensive correction order and obliging the court to impose such conditions when making an order. In such circumstances, it may not be inappropriate to look to the regulations to understand the legislative scheme.

24 The present case gave rise to two further issues. The first, which was not in dispute, was whether it was permissible, desirable or even necessary, to look to the terms of the regulation to understand the degree of leniency of such a sentence as compared with full-time imprisonment. At least implicitly, both the Director and the respondents accepted that it was. The next question was whether, and if so how, the court could take into account the actual operation of such an order. In most cases, the sentencing court will not have such information before it, except, perhaps, at a very general level. In the present case, the offenders read affidavits in which they set out the manner in which the orders were currently operating in respect of their own circumstances, as being at least relevant with respect to any re-sentencing exercise and possibly as to the appropriateness of the orders themselves. Thus, it might be possible to consider the actual degree of leniency resulting from an order under s 7 or, being the obverse of the same coin, the relative harshness of the conditions, as they operated in the particular cases.

25 Generally speaking, it is not open to an offender to demonstrate that a sentence was unduly severe (or in the case of an appeal by the Director, not unduly lenient) by evidence of the manner in which it operated prior to the hearing of the appeal. The general approach is that, assuming that error is otherwise demonstrated, such material may be taken into account upon re-sentencing. The only basis for adopting a different approach in the present case is that, while sentencing judges are reasonably familiar with the general circumstances of a custodial sentence and its impact upon an individual offender, the operation of intensive correction orders is less well understood. In part that is because their operation will depend as much upon the resources available to the State in administering the scheme as upon the abstract nature of the conditions imposed. However, to accept such an argument would be to leave the door open to continuing evidential disputes about the operation of particular orders in circumstances where it may be said that the available resources have been augmented or withdrawn over time. The preferable course is to approach the matter on the basis of the statutory scheme and the material available to the trial judge at the date of sentencing.

Circumstances of offending

26 The basic structure for rebirthing activities undertaken by the offenders and certain others was as follows. The first step was to arrange the purchase from interstate auction yards of what were broadly described as "repairable write-offs" of base model vehicles. The use of interstate vehicles was adopted to limit the circumstances in which they could be traced, for example by search of the Register of Encumbered Vehicles (REVs) in New South Wales.

27 The second step was to repair the vehicles so that they passed inspection by the Roads and Traffic Authority in this State. The third step, after inspection, was to have the vehicles registered in the names of friends, relatives and associates.

28 The repaired vehicles were not sold in their registered condition. Rather, they were "upgraded" by use of stolen parts from more expensive models. By upgrading after registration, the need to produce receipts for the stolen parts was avoided.

29 Following those steps, the vehicles were advertised for sale and sold to members of the public, without disclosing that the vehicles had been involved in accidents and had been re-birthed. Each of the respondents knew that the vehicles were to be sold with false histories.

30 The activities in which each offender was involved differed as between them, but the conduct generally took place between October 2006 and September 2008. None of the offenders in the present matter were said to have been involved in the theft of vehicles, nor in their ultimate sale.

31 The respondents had four co-offenders. One, Mr Hussain, was responsible for advertising and selling the vehicles. He had not been sentenced at the time the respondents were sentenced, but later came before Woodburne DCJ on 9 March 2012, on multiple offences. Neither the offences themselves, nor the personal circumstances of the offender were closely paralleled by the present cases. It is sufficient to note that Woodburne DCJ imposed a sentence of three years with a non-parole period of one year five months. In the circumstances, no question of an intensive correction order arose.

32 There were three other co-offenders who had been dealt with prior to the sentencing of the respondents. One, Mr Rustom, was charged with knowingly participating in a criminal group through the registration of a single vehicle and facilitating the sale of the vehicle. A term of nine months imprisonment was imposed, fully suspended pursuant to s 12 of the Sentencing Procedure Act. His offending was clearly less serious than that of the respondents. A further co-offender, Mr Shiel, was sentenced in the District Court in September 2011 in relation to one offence of knowingly participating in a criminal group, contrary to s 93T of the Crimes Act. He had had 10 motor vehicles registered in his name, in co-operation with the respondent Tannous. The sentencing judge noted that he acted for minimal financial gain, had significant mental health issues and had been "very much used by people running this operation". He was placed on a bond, sentence being deferred for three years.

33 The other co-offender was a Mr Minkara who was charged with two offences of recklessly dealing with the proceeds of crime, by depositing into an account in his name money received from the sale of two vehicles. He too received a s 9 bond.

Nature of offences

34 The gravity of the activities constituting car rebirthing are reflected in the available penalties, being a maximum sentence of 14 years imprisonment, with a standard non-parole period of four years. Nevertheless, because the section encompasses a wide range of criminal activity, it is necessary to focus on the particular offending conduct in identifying an appropriate punishment: Ibbs v The Queen [1987] HCA 46; 163 CLR 447 at 451-452; Hamieh at [50]. On the other hand, the section envisages that rebirthing activities may be carried out on an organised basis by a network of individuals carrying out specific functions for profit or gain, without there being a hierarchical organisation: s 154G(5)(b). In Hamieh a person who had entered a plea of guilty to an offence under s 154G had been sentenced, after receiving a discount of 20% for the plea, to a non-parole period of 12 months imprisonment, with a balance of term of 12 months, to be served by way of periodic detention. There were two cars into which stolen parts were incorporated and the activities took place between 12 February and 20 July 2007. This Court (Beazley JA, Kirby and Johnson JJ) intervened on the application of the Director, resentencing the offender to a term of imprisonment comprising a non-parole period of two years with a balance of term of 12 months.

35 Much of what was said in Hamieh with respect to the significance of the standard non-parole period should no longer be relied on: see Muldrock v The Queen [2011] HCA 39; 244 CLR 120. However, relevantly for present purposes, the Court outlined the history to the legislation:

"[43] The Crown placed particular emphasis on the objects of the legislative scheme enacted by the Crimes Amendment (Organised Car and Boat Theft) Act 2006, which introduced s 154G into the Crimes Act on 23 May 2006. The new provision is specifically directed to the criminal industry of car rebirthing.

[44] The background to the 2006 legislative amendments included the Report of the Independent Commission Against Corruption entitled 'Rebirthing Motor Vehicles: Investigation Into the Conduct of Staff of the Roads and Traffic Authority and Others' (November 2000), in which Assistant Commissioner Cripps QC considered the vice of car rebirthing, including the theft of cars for this purpose, producing a valuable item for criminals to resell to unsuspecting buyers (p 1). The scope for corruption of public officials in areas of vehicle inspection and registration was also emphasised (pp 1-2, 42).

[45] Decisions of this Court for offences committed before the 2006 amendments concerning sentence for receiving offences had emphasised the seriousness of crimes associated with car rebirthing: Mason v R [2007] NSWCCA 32 at [19]; Sullivan v R; Skillin v R [2008] NSWCCA 296; 51 MVR 572 at [29] 578. The 2006 amendments involve a specific legislative response to this problem with particular emphasis upon the need for deterrence and the imposition of appropriately severe penalties.

...

[47] The significance of these matters was highlighted in the Minister's second reading speech to Parliament, where the Minister noted that car and boat rebirthing activities cost the New South Wales community $100 million annually and identified some of the 'social' costs of rebirthing. He said:

'Firstly, rebirthing means that the stolen vehicle will not be recovered, in contrast to 'joyriding'-style car theft, where the vehicle is usually recovered. This results in true owners being deprived of their cars permanently, and higher insurance premiums for us all. In addition, if a rebirthed car that has been on-sold is subsequently identified, seized and taken back to its true owner, the honest buyer who paid market price for the car may be left with nothing.

Secondly, rebirthing is dangerous. It may involve serious physical alterations to the car, such as grafting the front end of one car to the back end of another. This creates a structural flaw which in an accident could mean that the car disintegrates with its innocent new owners inside.

Thirdly, because rebirthing is potentially lucrative, it entices young people into becoming involved with organised criminal gangs. It can corrupt legitimate tradespeople who work with vehicles, because rebirthing gangs actively seek to 'recruit' professionals working in the industries of motor vehicle repair, wrecking, sale and registration. These people can provide the paperwork to give the rebirthers' illegal activities the veneer of legitimacy.'

[48] Importantly, in terms of the intended deterrent effect of the legislation, the Minister said:

'These new offences provide deterrence against being involved in rebirthing, and send a clear message to those thinking of being involved in rebirthing activity that the punishment will far outweigh any illegal benefits.'

The Minister also referred to the 'strict penalties for rebirthing' that the Bill proposed and the closing of loopholes in the criminal law that rebirthers might try to exploit."

36 What was noted as to the facts of the objective seriousness of the offending in Hamieh at [52] is apposite with respect to the present respondents:

"The respondent's conduct involved a demonstrated knowledge of how to source repairable write-off vehicles, how to register those vehicles and then how to substantially rebuild those vehicles with parts from other vehicles. That knowledge and skill had all been legitimately acquired and previously utilised by using vehicle parts that had been legally sourced. However, in rebuilding the two vehicles subject of the offence, the respondent chose to use stolen parts. The evidence is silent as to how he sourced those parts or what he paid for them. All that is known is that the parts came from three stolen vehicles. Although the respondent is not alleged to have been involved in the theft of the vehicles from which the stolen parts came, nonetheless, as the second reading speech makes clear, every step in the rebirthing industry is necessary and interrelated. It is for that reason that the offence has been treated by the legislature with the seriousness to which we have already referred."

37 Putting to one side the actual sentence imposed in Hamieh, which reflected both the subjective circumstances of the particular offender and an appreciation of the significance of the standard non-parole period which is no longer to be applied, it is nevertheless likely that significant activities with respect to two or more cars, in contravention of s 154G, will, in the absence of significant mitigating circumstances, give rise to a full-time custodial sentence: Mason v R [2007] NSWCCA 32 at [19] (McClellan CJ at CL, Simpson and Howie JJ agreeing); Sullivan v R; Skillin v R [2008] NSWCCA 296; 51 MVR 572. (These cases involved similar conduct, although arising before the amendments in 2006 and thus being determined under s 188 of the Crimes Act, which carried a maximum penalty of 12 years imprisonment.)

38 The activities involved in the present case involved a significant degree of organisation and planning. The base model vehicles were obtained cheaply from interstate sales of vehicles involved in collisions. The purpose in going interstate was to obtain vehicles which would be registered for the first time in New South Wales, thus allowing their history to be concealed from the ultimate purchaser. Once the vehicle was registered, as a base model vehicle, parts from luxury models were added, to increase its value. That step involved obtaining parts from existing vehicles, which were, almost invariably, stolen. The rebirthing activities thus provided a ready market for stolen parts, as well as a degree of co-operation between the thieves and the organisation, assuming that the thieves were not part of the organisation. The final step in the process involved sale of the vehicle to purchasers from whom the original history of the vehicle and the upgrading with stolen parts was concealed.

39 Although defects in the vehicles after repair arguably should have been uncovered by inspection in the course of the registration process, and in some circumstances were uncovered, there was a real risk that some part of the vehicle might have been weakened in the original accident and not adequately repaired. Concealment of the vehicle's history had the potential to mislead both the vehicle inspector and the ultimate purchaser, with the potential to release a dangerous vehicle onto public roads.

40 Assessment of the varying degrees of responsibility of those involved in car rebirthing activities is by no means a simple task. However, a number of relevant factors can be identified. First, the fact of involvement will, frequently, allow an inference that those involved were cognizant of the overall scope and purpose of the activities, even if their own roles were limited to a particular stage in the process. Secondly, the profit obtained from the activities will be a relevant consideration, if it is capable of being identified. However, as there are likely to be various individuals who will share in the profits, an understanding of how the profits were in fact shared may well not be forthcoming. Thirdly, the time over which the activities were conducted will be a relevant consideration. A brief period of involvement with a small number of vehicles is likely to be less reprehensible than an involvement over a significantly longer period with a larger number of vehicles.

41 In the course of argument it was suggested that an offender will not be guilty under s 154G unless he or she was involved in the rebirthing of at least two cars (or boats). That inference was sought to be derived from the fact that the activity must be carried out on an "organised basis", which requires that the planning, organisation or structure must indicate that "the activity is carried out on more than one occasion and involves more than one participant": s 154G(4)(a). Assuming that it is not sufficient that there be two or more of the activities identified in s 154G(2), but that such activities must be carried out in relation to at least two vehicles, it does not follow that the offender, who is charged with "facilitating" such activities, must have been involved in those activities on more than one occasion. Nevertheless, it is clear that the seriousness of the individual offender's conduct will reflect the extent of his or her involvement over time in the activities carried out on an organised basis.

42 It may also be accepted that steps can be taken, and have been taken since the offences the subject of these charges, to make it more difficult for such activities to be carried out. For example, establishing a national register of vehicles may reduce the ability of persons to conceal the history of vehicles by purchasing interstate. However, the fact that a criminal activity could be made more difficult by the authorities does not diminish the culpability of the offender. Rather, viewed from the opposite perspective, offences of this kind have imposed a significant additional burden on the broader community, by way of the increased costs involved in attempts at prevention.

Error on part of sentencing court

43 The respondents complained that, at the heart of the Director's case, was the contention that the sentencing judge had erred in her characterisation of the seriousness of the offences. That being an evaluative exercise, it was not appropriate for this Court to interfere to substitute a different view as to the objective seriousness: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) and [45] (Simpson J). Accordingly, the Court could only intervene if some error of principle were to be discerned, analogous to the approach required in respect of truly discretionary decisions, pursuant to House v The King [1936] HCA 40; 55 CLR 499 at 505.

44 So much should be accepted: however, this is a case in which the Director expressly sought to identify errors of approach which resulted in manifestly inadequate sentences. Although the sentencing judge heard some brief evidence, there is nothing to suggest that her assessment of the circumstances turned on any assessment of witnesses, as opposed to a consideration of the involvement of the parties as revealed in the documentary material before the Court. In respect of the car rebirthing offences, her Honour stated, at the end of a lengthy discussion, at pp 13-14:

"For each of the offenders, using the maximum penalty as a worst case, objective considerations and the standard non-parole period to which I have referred, each of these offences falls into the category of offending towards the low end of the scale in my view."

45 With respect to the further offence under s 93T of participating in a criminal group, the sentencing judge said with respect to Mr Tannous (p 14):

"It is a matter that is a s 93T matter where the criminality is below middle range and low to middle range."

46 What precisely was meant by the latter assessment is unclear, and probably does not matter for present purposes. It is sufficient to deal with the characterisation in respect of the car rebirthing offences which were common to all offenders and which were treated alike.

47 After giving appropriate consideration to the nature of car rebirthing offences generally, the conduct of the offenders and, to the extent that they were known, their respective roles in the car rebirthing activities, it is difficult to know what was meant by assessing the offending at the "low range" of criminality. The concept of high, middle and low ranges is always problematic, without further explanation. The seriousness of the offences was revealed, as the sentencing judge recognised, in the maximum sentence and the specification of a significant standard non-parole period. To impose sentences which, before allowance for the guilty pleas, were of the order of half the standard non-parole period revealed a serious misconception as to the objective seriousness of the offending, absent remarkable subjective circumstances, of a kind which was not available in respect of any of the offenders.

48 Nor is there anything in the reasoning which provided an explanation of the characterisation of objective seriousness. In those circumstances, the Director is correct to assert appellable error. For the reasons which follow, the error was reflected in the additional leniency granted by imposing sentences which did not involve full-time custodial terms.

49 It remains to identify the involvement of the present respondents, which was significantly dissimilar to that of the four co-offenders separately dealt with. To the extent that the sentences are found to be manifestly inadequate, it will be convenient to identify in each case that which would be an appropriate sentence.

Discretion as to intervention

50 For reasons set out below, it is concluded in respect of each respondent that the sentence imposed was manifestly inadequate and a period of full-time imprisonment would have been appropriate. Against the possibility of such a finding, the respondents argued that the Court should, nevertheless, decline to intervene in the circumstances of their respective cases.

51 It is not in doubt that the Court has a discretion to decline to interfere, even when satisfied that the sentence is manifestly inadequate: Criminal Appeal Act, s 5D(1); Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1] and [24]. The respondents contended, on a number of grounds, that the residual discretion should be exercised in their favour. Those factors fell within three categories, namely -

(a) delay;

(b) actual anxiety and distress caused by the appellate process, and

(c) proportionality.

52 It may be accepted that each of these factors is a legitimate consideration in considering the exercise of the residual discretion.

53 With respect to delay, senior counsel for Mr Tannous noted that the last date of the period of offending was 19 September 2008, a search warrant having been executed on his home on the previous day. He was arrested and charged on 18 June 2009 and committed for trial on 2 May 2011. He eventually entered a guilty plea on 1 August 2011, his matter being stood over for sentence on 10 November 2011. He was finally sentenced after issues relating to compensation and forfeiture had been resolved, on 23 February 2012. The chronology in respect of the respondents Mr Fahda and Mr Dib parallelled that of Mr Tannous.

54 The period of time which elapsed between the date of arrest and the date of sentencing might be thought unfortunate, especially in a case in which the respondents were undoubtedly facing at least the possibility of custodial sentences. However, the evidence before this Court did not allow an assessment of the causes of that delay, except in the broadest terms and little reliance was placed upon it in submissions.

55 Following the imposition of the sentences, a notice of appeal was lodged promptly by the Deputy Director on 5 March 2012, the respondent Mr Tannous being the third to be served, on 13 March 2012. On 15 March the matter was given a hearing date in this Court. Detailed submissions were filed on behalf of the Director on 30 July 2012. Accordingly, the lapse of time since the sentences were imposed is unremarkable. Further, as will appear, while the appropriate sentences involve full-time custody, the respondents will have the benefit of time served in the community, so that, other considerations aside, the mere lapse of time has not acted to their detriment.

56 A second and separate concern is the anxiety and distress caused by the appeal and the resultant uncertainty as to their respective future circumstances. Each has filed an affidavit attesting to the stress suffered. In the case of Mr Tannous, whilst attesting in vivid detail to the stress he has suffered since being served with the notice of appeal, he noted that he had not seen a doctor because he did not think "there is much that anyone can do for me". That was, no doubt, an honest response and may be accepted, as may be the balance of his affidavit. What is missing, however, is a comparison with any stress that may have been occasioned following his arrest and prior to his plea of guilty and during the period between plea and sentence.

57 Mr Fahda gave evidence that he was extremely worried at the prospect of going to prison for the first time. He said that he had been seeing a psychologist and was now seeing a psychiatrist who had sent him "to have scans". The results of the scans were not available at the time he swore his affidavit, nor was their purpose revealed. There was no report from the psychologist or psychiatrist referred to in his affidavit. Again, there was no reference to any stress he may have felt prior to the sentencing.

58 These views too may be accepted, although it appears from Mr Fahda's own evidence that he is more concerned about the problems he has had with drugs and alcohol and stated that he had "refused to be medicated with anti-depressants" because of those problems.

59 Mr Dib also gave evidence of the stress suffered since he was served with the notice of appeal. He too had been to see a psychologist, who had prepared a report dated 20 August 2012 which was in evidence. The psychologist, Mr Watson-Munro, had prepared a report prior to his sentencing. It appeared that he had not seen Mr Dib since the sentencing until 17 August 2012. The report supported the view that Mr Dib required treatment involving cognitive behaviour therapy and that he was unlikely to receive appropriate supportive psychotherapy in a custodial environment. He referred to Mr Dib as "highly anxious and depressed". He opined that he anticipated "a major escalation in his symptomatology" should he be incarcerated.

60 In part, the tenor of the affidavits of each respondent was a sense of injustice that they had worked hard to comply with the terms of their intensive correction orders and, if incarcerated, would be subject to additional punishment, for no good reason. Those views should be disregarded. It is for that reason that the Court did not permit the Director to obtain evidence as to whether there had been full compliance with the conditions of the respective orders. If the respondents are to be returned to custody as a result of these proceedings, it will have nothing to do with whether they have complied or not complied with the orders so far.

61 Some weight should undoubtedly be given to the anxiety and distress actually suffered by the respondents since they were sentenced. However, that weight should be limited as it may be assumed that they suffered similar degrees of anxiety and distress before being sentenced. If properly advised, they must have been aware of the risk of full-time custodial sentences being imposed.

62 There remains the question of proportionality. The submissions on behalf of Mr Tannous referred to the fact that the person responsible for selling the cars, Mr Hussain, had been sentenced for one offence against s 154G and ten offences of obtaining or attempting to obtain a financial benefit by deception. Mr Hussain was sentenced to imprisonment for three years.

63 It is not necessary to deal in detail with the differences between Mr Hussain's circumstances and those of the respondents. Suffice it to say that the imposition of full-time custodial sentences on the respondents will not give rise to a significant level of disparity or disproportion with respect to the sentences imposed on Mr Hussain. No doubt the result will be to reduce the difference between the respective sentences, and it may be accepted that such a variation is a relevant circumstance. However, it has limited weight once it is established the sentences imposed on the respondents were manifestly inadequate.

64 Taking account of all the factors set out above, it has been necessary for the Court to give careful consideration as to whether or not to intervene. Bearing in mind the full circumstances of the offending in respect of each respondent, and the leniency of the sentences imposed, the case is not an appropriate one in which to decline to intervene.

Individual sentences

(a) Raymond Tannous

65 Mr Tannous was charged with two offences. The first, of knowingly facilitating car rebirthing activities carried out on an organised basis, involved three vehicles incorporating stolen parts. The second charge of participating in a criminal group related to nine vehicles which were repaired and upgraded, although the parts were not identified as being stolen.

66 Of the three vehicles the subject of the rebirthing charges, two were located during searches of premises occupied by Mr Hussain. A third was sold to an undercover operative. The third was a base model Toyota Landcruiser which had been involved in a collision in Western Australia and had been deemed a 'repairable write off'. It was purchased in NSW in March 2008 by Christopher Shiel, for $20,356. It was repaired at a smash repair shop at which Mr Tannous worked, following which it was registered with a nominated market value of $30,000. The registration documents were collected from the RTA by Mr Tannous.

67 In July 2008 the vehicle was advertised for sale as a Landcruiser Sahara 2007 for $57,850. It was purchased in September by an undercover agent for $56,000. On examination, it was found to contain luxury parts from a Landcruiser Sahara 2007 stolen from Cremorne Point in October 2007.

68 Mr Tannous was a qualified vehicle spray painter who facilitated the repair and registration of the vehicles at a smash repair business in Yagoona. Once the vehicles were complete, Mr Tannous arranged for them to be registered in the names of associates and participated in the proceeds of sale. Each of the three vehicles the subject of the rebirthing charge involved, in accordance with the general scheme described above, a base model vehicle which had been deemed a repairable write-off and obtained from interstate, which was later refitted with parts from a superior model stolen and stripped in Sydney. Two of the three base vehicles was obtained for approximately $20,000, registered in the name of Christopher Shiel and ultimately placed on the market in upgraded form at a price of some $40,000.

69 Mr Tannous had no remarkable personal circumstances. He was 40 years of age when sentenced and had no significant criminal history. He had forfeited an amount of $125,000 to the Crime Commission and, it was accepted by the Director, had lost any financial gain that he obtained from the offences with which he had been charged. He was working as a truck driver at the time of sentence. The primary judge accepted that he had "psychological issues to address such as anxiety and depression which he is currently probably exacerbating by his use of alcohol": Judgment, p 15. She further found that "his commission of these offences has heightened his anxiety", although it is not entirely clear whether it was the commission of the offences or his arrest which had that effect. The sentencing judge was satisfied that he was entitled to a discount of 25% for his plea of guilty, a finding which was not challenged.

70 Given the discount, the starting point for the sentence in relation to car rebirthing appears to have been 25.3 months. The sentence with respect to the participation in a criminal group, which involved the repair of nine vehicles, each of which was given a false history and proved to be unroadworthy, received a sentence of five months, indicating a starting point of 6.6 months before the discount for the guilty plea. The repairs of the 12 vehicles involved covered a period from early October 2007 until September 2008. The organisation and planning, the period over which the offences extended, and the number of separate vehicles involved in the offences all warranted a significant period of imprisonment. There was nothing to justify the degree of leniency permitted by the sentencing judge. A starting point for the offences involved in the car rebirthing should have been no less than 36 months which, after a discount of 25%, would provide a sentence of two years three months. The fact that this would have been a first custodial sentence and the value which may well be derived from an extended period of supervision in the community, warrant a finding of special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act. That in turn would justify a non-parole period of 18 months, with a balance of term of nine months.

71 The offence under s 93T also warranted a term of imprisonment, with a starting point of 16 months. Given the discount for the guilty plea, a period of 12 months imprisonment should have been imposed. There should have been a degree of accumulation of the sentences. Notionally treating the s 93T sentence as involving a non-parole period of nine months, it would have been appropriate to accumulate the car rebirthing sentence on six months of that sentence, giving an overall minimum custodial term of 24 months.

72 The next question, in re-sentencing the offender, is to determine what allowance should be made for the time served "in the community". On one view, as the sentence imposed by the sentencing judge was one of imprisonment, the circumstances of the imprisonment should be disregarded and the respondent should be allowed credit for the whole of the term served. He will then be required to serve a period of 15 months mandatory custody.

(b) Mohammad Fahda

73 Mr Fahda faced one charge of knowingly facilitating organised car rebirthing, over a period from 1 July 2007 until 19 September 2008. His activities involved four vehicles. The first vehicle was a base model Mitsubishi Pajero purchased by the offender for $7,500 in the name of his sister, Sarah Fahda. It was repaired and, after first being rejected for registration, later passed inspection and was registered. The vehicle was later upgraded by parts from two stolen vehicles and sold in June 2008 for $33,250. The purchaser was dissatisfied with the vehicle and being re-examined by the same RTA examiner who inspected it first in March 2008, the police were notified. In September 2008 a search warrant was executed at the offender's premises. The second vehicle was a base model Toyota Landcruiser, purchased by the offender's aunt for $7,500 in February 2008. In August 2008 a higher model Landcruiser was stolen, stripped and parts incorporated into the Landcruiser registered in the name of the offender's aunt. It was listed by Mr Hussain at a purchase price of $49,850, but had not sold by the time police executed a search warrant on 18 September 2008.

74 A third vehicle, purchased by the offender's aunt for the sum of $12,500 in July 2007, was upgraded with parts from a stolen vehicle and, despite the fact that it was missing the sunroof belonging to the upgraded model and was still badged as a base-level vehicle, sold for $51,000. The fourth vehicle involved a damaged Landcruiser, purchased by the offender's father in October 2007. It was registered in January 2008. Two weeks later a higher level Landcruiser was stolen and stripped. The rebirthed Landcruiser was sold in February 2008 for $44,500.

75 When sentenced, Mr Fahda was 29 years of age. His personal circumstances involved little by way of mitigation. The sentencing judge referred to his "worrying lack of acceptance of responsibility" and to his purported expressions of remorse which she considered more consistent with feeling sorry for himself and perhaps for the position he had put his family in than a true acceptance of responsibility: Judgment, p 16. She noted that part of the difficulties imposed on his family had resulted from his gambling habit and the resultant debts which the family had taken responsibility for. Her Honour did not accept, understandably, a purported diagnosis of post-traumatic stress disorder: Judgment, p 17. She noted that he appeared, more recently, to have taken responsibility for the mortgage on the family home which had been taken out to pay for his gambling debts. She considered it a hopeful indication of a belated maturity. She noted his involvement (with other family members) in caring for his severely disabled brother. She concluded at 18:

"The hardship can be seen as part of the overall circumstances in mitigation when considering the sentence. It together with all other matters informs the process. It would not by and of itself convince me that a full time custodial sentence ought be avoided if all other considerations pointed to that as the only appropriate result."

76 Given the objective seriousness of the offence, it is by no means clear what features ultimately persuaded her Honour that an intensive correction order was appropriate.

77 The offender's age and lack of serious criminal record, despite a degree of irresponsible behaviour, would justify a finding of special circumstances. Nevertheless, the objective seriousness of the offending taking place over approximately 15 months and involving four vehicles demands a full-time custodial sentence.

78 Despite the primary judge's guarded hope of greater maturity, within a short period of commencing his imprisonment in the community, he was charged with dangerous driving and speeding. The charge of dangerous driving was dismissed in August 2012 and he entered a plea of guilty to speeding, was fined $1,083 and disqualified for nine months. He states in his affidavit that he had lodged an appeal against the length of the disqualification. No further details were given as to the speed involved or the circumstances of the offending.

79 He claimed that he had paid $8,000 in compensation in February 2012 but accepted he owed "a further $8,817.23". He also said there had been "problems" with the first payment and that the Court did not have a record of it. He provided no evidence of payment.

80 The precise role of Mr Fahda in the offending is less clear than in relation to Mr Tannous. Nevertheless, the conduct involved four cars over a period of 15 months and an appropriate starting point is three years imprisonment.

81 The sentencing judge accepted a discount of 10% for the plea of guilty, which was not entered until the first day of the trial. That would result in a sentence of two years and eight months. Because a finding of special circumstances is appropriate, that sentence should constitute a period of 20 months non-parole period with 12 months balance of term.

(c) Omar Dib

82 Mr Dib was the youngest of the three offenders. The charges involved five vehicles and car rebirthing activities conducted between 17 October 2006 and September 2008. In October 2006, Mr Dib was not yet 18 years of age. At the time of his sentence he was 23 years of age. The agreed facts stated that the offender "facilitated the rebirthing of the five vehicles by orchestrating their purchase, repair and registration" and then "arranged for their subsequent upgrading". He "forwarded those vehicles to the co-Accused Hussain for the purposes of sale, knowing that they contained stolen parts and that the vehicles would be offered for sale with false histories".

83 Whilst noting that the was the youngest of the offenders, the sentencing judge also noted that his involvement in the offences "was similar to the others". She noted that he had exhibited "worrying alcohol and gambling abuse which both militate against rehabilitation unless they are effectively tackled": Judgment, p 18. She further noted (p 19):

"It is suggested he has an adjustment disorder with features of anxiety, depression and poor impulse control. This is an observation a psychologist could make of many with a criminal propensity. Again such an observation does little to support a finding that he has good prospects of rehabilitation or that he will not re-offend. The opposite in fact is a more rational conclusion from such a diagnosis."

84 Finally, she noted that he had displayed considerable energy in his father's flower business.

85 In considering rehabilitation, the primary judge made no reference to the 16 offences for which penalties had been imposed between January 2007 and August 2011. These included numerous motor vehicle offences, offensive behaviour, assault police officer and possession or supply of drugs. A disqualification from driving for three months imposed on 21 September 2006 was followed by a two year disqualification imposed on 16 March 2011 for driving when licence cancelled. Five months later, there was a further conviction for drive while disqualified with a further two year period of disqualification imposed from 31 August 2011. These offences occurred whilst he was on bail with respect to the car rebirthing offences.

86 Mr Dib was not sentenced on the same day as the other offenders, apparently because the Court did not have an assessment report. However, on 27 January 2012 an order was made that the offender pay the amount of $10,000 into trust, apparently as part payment of a compensation order in an amount just under $30,000. There was no evidence before the Court that any compensation had been paid.

87 On 23 February 2012 the sentencing judge imposed a 20 month sentence to be served by way of intensive correction order, being the same sentence as that imposed on Mr Fahda. To allow an adequate period on parole there should be a finding of special circumstances for the purposes of s 44 of the Sentencing Procedure Act. It is appropriate to impose the same sentence by way of re-sentencing as that imposed on Mr Fahda.

Resentencing orders

88 The following orders should be made in respect of the respondent Tannous:

(1) Set aside the sentence imposed by Syme DCJ in the District Court on 27 January 2012.

(2) Resentence the offender as follows:

(a) with respect to the offence of participating in a criminal group, contrary to s 93T(1) of the Crimes Act, impose a fixed term of imprisonment of 12 months to date from 27 January 2012;

(b) with respect to the offence of facilitating organised car rebirthing, contrary to s 154G(1) of the Crimes Act, impose a sentence of imprisonment consisting of a non-parole period of 18 months and a balance of term of nine months, commencing on 27 July 2012.

(3) Direct that the time served by the offender pursuant to the sentence imposed in the District Court is to count as part of the sentence imposed by this Court.

(4) Direct that Mr Tannous be released on parole on 26 January 2014.

89 In respect of the respondent Fahda:

(1) Set aside the sentence imposed by Syme DCJ in the District Court on 27 January 2012.

(2) Resentence the offender as follows:

With respect to the offence of facilitating organised car rebirthing, contrary to s 154G(1) of the Crimes Act, impose a sentence consisting of a non-parole period of 20 months and a balance of term of 12 months, commencing on 27 January 2012.

(3) The time served by the offender pursuant to the sentence imposed in the District Court is to count as part of the sentence imposed by this Court.

(4) Direct that Mr Fahda be released on parole on 26 September 2013.

90 In respect of the respondent Dib:

(1) Set aside the sentence imposed by Syme DCJ in the District Court on 23 February 2012.

(2) Resentence the offender as follows:

With respect to the offence of facilitating organised car rebirthing, contrary to s 154G(1) of the Crimes Act, impose a sentence consisting of a non-parole period of 20 months and a balance of term of 12 months, commencing on 23 February 2012.

(3) The time served by the offender pursuant to the sentence imposed in the District Court is to count as part of the sentence imposed by this Court.

(4) Direct that Mr Dib be released on parole on 22 October 2013.

91 HALL J: I agree with the orders proposed by Basten JA and with the reasons set out in his Honour's judgment.

92 BEECH-JONES J: I agree with Basten JA.

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Decision last updated: 22 November 2012