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R v Bannout, Abdul-Hassien & El Sayed QCA 156
SUPREME COURT OF QUEENSLAND
R v Bannout; R v Abdul-Hassien; R v El Sayed  QCA 156
In CA No 8 of 2019:
In CA No 9 of 2019:
In CA No 10 of 2019:
CA No 8 of 2019
CA No 9 of 2019
CA No 10 of 2019
DC No 770 of 2018
Court of Appeal
District Court at Southport – Date of Sentences: 17 December 2018 (Kent QC DCJ)
16 August 2019
25 July 2019
Fraser and Gotterson JJA and Applegarth J
In CA No 8 of 2019:
In CA No 9 of 2019:
In CA No 10 of 2019:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the three applicants each pleaded guilty to four counts of dishonestly gaining a pecuniary benefit for themselves, one count of attempting to obtain dishonestly a pecuniary benefit for themselves and one count of dealing with identification information for the purpose of committing an indictable offence – where the applicants were successful in withdrawing $187,675 from ATMs using cloned credit and debit cards on four trips to the Gold Coast – where there was evidence that the applicant Abdul-Hassien was in contact with a taxi driver who was in some way connected with the people who were doing the cloning and supplying of the cards – where the applicants were represented by one counsel during sentencing – where the applicants’ counsel did not press an argument that the applicant Abdul-Hassien had a greater role in the offending – where the learned sentencing judge considered that the evidence did not place the applicant Abdul-Hassien in a more serious position than his co-accused – where the learned sentencing judge sentenced the applicants to identical sentences – where the applicants Bannout and El Sayed contended that there was a relevant difference in the offending of the co-accused – whether there was a relevant difference in the offending of the co-accused – whether the applicants needed to have been separately represented during sentencing – whether the learned sentencing judge failed to apply the parity principle
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – SUSPENDED SENTENCE OF IMPRISONMENT – where the applicants each pleaded guilty to four counts of dishonestly gaining a pecuniary benefit for themselves, one count of attempting to obtain dishonestly a pecuniary benefit for themselves and one count of dealing with identification information for the purpose of committing an indictable offence – where the learned sentencing judge sentenced each of the applicants to an effective sentence of three years imprisonment, suspended after 12 months imprisonment for an operational period of three years – where the applicant Abdul-Hassien contended that the suspension could have been earlier than the usual one third because of his personal circumstances, including that of his mental health, the fact that he was serving his imprisonment isolated from his family in New South Wales, his background in having lived in a war-torn country and his role as primary carer for his ailing mother and his daughter – whether there was some misapplication of principle by the learned sentencing judge
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicants each pleaded guilty to four counts of dishonestly gaining a pecuniary benefit for themselves, one count of attempting to obtain dishonestly a pecuniary benefit for themselves and one count of dealing with identification information for the purpose of committing an indictable offence – where the learned sentencing judge sentenced each of the applicants to an effective sentence of three years imprisonment, suspended after 12 months imprisonment for an operational period of three years – where the applicant Bannout submitted that his personal circumstances were more deserving of leniency than those of his co-offenders in light of his post-traumatic stress disorder, the stress he endured through his eldest daughter suffering from epileptic fits and through his role as primary carer for his daughter – whether the applicant Bannout’s circumstances warranted a lesser sentence than that imposed on his co-accused – whether there was a misapplication of principle in sentencing the applicants
Lovelock v The Queen (1978) 19 ALR 327; (1978) 33 FLR 132;  FCA 8, cited
R v Pham (2015) 256 CLR 550;  HCA 39, cited
J G Jacob for the applicant, Bannout
S A Lynch for the applicant, Abdul-Hussein
M W Harrison for the applicant, El Sayed
J A Wooldridge for the respondent
Owens & Associates for the applicant, Bannout
Cullen Lawyers for the applicant, Abdul-Hussein
Wallace O'Hagan Lawyers for the applicant, El Sayed
Director of Public Prosecutions (Queensland) for the respondent
- FRASER JA: I agree with the reasons for judgment of Gotterson JA and the orders proposed by his Honour.
- GOTTERSON JA: The applicants, Mohammad Abdul-Hassien, Mohamad Bannout and Hassan El Sayed, have filed three separate applications for leave to appeal against sentences imposed on them at a sentence hearing in the District Court at Southport on 17 December 2018. At the hearing, they had each pleaded guilty to six offences for which they had been conjointly charged on the one indictment.
- Five of the offences were against s 408C(1)(d) of the Criminal Code. Counts 1 to 4 alleged offending by way of dishonestly gaining a pecuniary benefit for themselves as follows;
On divers dates between 14 October 2016 and 18 October 2016
On divers dates between 4 November 2016 and 7 November 2016
At Burleigh Heads and elsewhere
On divers dates between 25 November 2016 and 28 November 2016
At Mermaid Waters
On or about 25 February 2017
At Coomera and elsewhere.
Counts 1 and 2 alleged a circumstance of aggravation in that the yield from each of those offences exceeded $30,000.
- Count 5 alleged an offence against the same provision by way of attempting to obtain dishonestly a pecuniary benefit for themselves on divers dates between 14 October 2016 and 26 February 2017 at Mermaid Waters and elsewhere. Lastly, Count 6 alleged an offence against s 408D(1) of the Code in that on divers dates between 14 October 2016 and 26 February 2017 at Mermaid Waters and elsewhere, they dealt with identification information for the purpose of committing an indictable offence.
- The applicants were convicted and given identical sentences. For each of Counts 1 and 2, they were sentenced to three years imprisonment and for each of Counts 3 and 4, the sentences were two years imprisonment. The sentences for Counts 5 and 6 were 18 months and 12 months imprisonment respectively. All terms of imprisonment are to be served concurrently. Each of the sentences is to be suspended after the applicants have served 12 months imprisonment, for an operational period of three years. A period of four days pre-sentence custody was declared to be time served under each sentence.
Circumstances of the offending
- A Schedule of Facts was tendered at the sentence hearing without objection from defence counsel. It disclosed the following circumstances of offending.
- The applicants resided in Sydney. Mr Bannout and Mr El Sayed had known each other since childhood in Lebanon. The former and Mr Abdul-Hassien, who had spent his formative years in Iraq and Iran, were also old friends.
- On four occasions between 14 October 2016 and 16 February 2017, all three travelled to the Gold Coast. Each of Counts 1 to 4 related to one of those four trips. For each trip, Mr Abdul-Hassien hired a rental car in Bankstown, Sydney. He also booked and paid for accommodation for the three while they were at the Gold Coast.
- The offending involved the use of cloned cards. These were cards with a blank magnetic strip to which was transferred information that had been skimmed from credit or debit cards during legitimate transactions.
- It was not alleged that the applicants themselves had skimmed information from legitimate cards or cloned it onto blank cards. However, Mr Abdul-Hassien had communicated with a number of individuals, including taxi drivers, who skimmed information from customers’ cards. On at least one occasion, he paid a taxi driver to skim cards. The skimmed information was provided to him by the taxi driver and was then cloned onto blank cards.
- During each of the trips, the three applicants attended locations where one or more ATMs had been installed. Their presence at these locations was recorded on CCTV. They were not disguised. They would use multiple cloned cards to make cash withdrawals at the one location before moving to other locations to make further multiple withdrawals. At one location alone, 61 cloned cards were used by them to make withdrawals from the one ATM.
- In the course of the four trips, the applicants were successful in withdrawing cash using 220 cloned cards on 403 occasions, withdrawing $40 to $1,000 at a time. The total amount identified as withdrawn by them was $187,675. For Count 1, it was $100,905 and for Count 2, $46,760.
- There were 63 additional unsuccessful attempts to use cloned cards during the trips. Some $33,200 was sought to be withdrawn by those attempts. That was the basis of Count 5. Count 6 related to the use of the account details on each of the 220 cloned cards used for the successful withdrawals.
- On 26 February 2017, police executed a search warrant at the three-bedroom apartment at which the applicants were staying during their fourth trip. Mr Bannout was found to be in possession of $6,975; Mr El Sayed, $2,705 and Mr Abdul-Hassien, $660.
- The applicants were sentenced on the basis that they functioned within a large operation in which others supplied blank cards and cloned skimmed information onto them. The learned sentencing judge categorised the applicants as being “essentially foot-soldiers” within the operation. They were not principals. Further, his Honour inferred in the absence of evidence, that a “significant amount” of the stolen cash was passed on to those in the organisation who had supplied the applicants with the cloned cards. It seemed to him, however, that the cash “was largely used for (their) own purposes.”
Applicants’ personal circumstances
- Mr Abdul-Hassien was about 40 years old when he offended. Both Mr Bannout and Mr El Sayed were in their late 30’s at the time. None of them had a relevant criminal history.
- Mr Abdul-Hassien’s participation in the offending appears to have originated in a divorce and business closure. Depressed, he turned to gambling. Unfortunately for him, he generated more debts in the course of it. An acquaintance suggested the offending to him as a means of debt repayment and wealth creation.
- In Mr Bannout’s case also, the offending was undertaken to fund a gambling addiction. Psychiatric evidence tendered at the sentence hearing indicated that he suffers from post-traumatic stress disorder based on his experience of war and mortalities in southern Lebanon. His gambling was part of a behaviour pattern directed towards avoiding memories of these incidents.
- Mr El Sayed was not a gambler. However, at the time of his offending he was suffering from depression arising from a marital breakdown and the downturn and eventual collapse of a business. The offending seemed to him to be a fast and relatively easy way to solve his financial problems.
- The prospects that any of the applicants might re-offend are low.
Parity – submissions at sentence and finding
- I now turn to the issue of parity because it is central to the applications of two of the applicants.
- During the sentence hearing, the prosecutor submitted that the learned sentencing judge would be able to distinguish between Mr Abdul-Hassien, on the one hand, and the other two co-offenders, on the other, on the basis that the former “was involved, at least to some extent, in discussing with the cab drivers (sic) the skimming”. He further submitted that “that could be reflected in perhaps a six to 12 month difference”. In answer to his Honour, the prosecutor suggested that, on the evidence, Mr Abdul-Hassien had “some involvement in the scheme that extended beyond the trips”. His Honour described that involvement as being the “point of contact (for the applicants) with the organisation”.
- Unlike here where each of the applicants is separately represented by counsel, the applicants were represented by the one counsel at sentence. Defence counsel did not submit that there was a material difference between the criminality of Mr Abdul-Hassien’s offending and that of the offending of his co-offenders. Nor did he make a submission that a difference in sentences was warranted on such account.
- Defence counsel concentrated on the description of Mr Abdul-Hassien as a point of contact. He challenged it, contending that the fact that Mr Abdul-Hassien had made several calls to a taxi driver did not elevate him to being a point of contact between the applicants as a group and those higher up in the organisation or between the organisation and outsiders. That function distinguished him “in a very modest way” only. It was further submitted that the three applicants were all properly described as “foot soldiers” with no relevant criminal histories.
- In the course of his sentencing remarks directed to Mr Abdul-Hassien, the learned sentencing judge said:
“There was some evidence in your case of an intercepted phone call which put you in contact with a taxi driver in Sydney who may have been the source or connected in some way with the source of the people who were doing the actual cloning and supplying the cards. But the way it has been discussed during submissions is that the three of you seem to have been essentially foot soldiers in a large operation, and it is urged upon me, and I do accept, that that degree of contact by you with somebody else in the organisation, does not necessarily place you in a more serious position than the others.
That is particularly so where the true details behind all this are still somewhat shrouded in mystery. It does not appear that the person who was actually using the skimming apparatus which is normally used in these cases, has been apprehended, so the actual manufacturer of the cloned cards has not been identified. All that we know is that they came from somewhere, and there was a lot of them, and you and your friends ended up with them, and undertook this escapade.”
His Honour evidently regarded the criminality of the offending of all three applicants as comparable. He did not draw a distinction on that account in fixing either their respective periods of imprisonment or time to be served before suspension.
Mr Abdul Hassien’s application
- Mr Abdul-Hassien’s sole ground of appeal is that his sentence is manifestly excessive. Unsurprisingly, he makes no complaint about his head sentence of three years imprisonment. It was at the lower end of the range suggested by the prosecutor, citing R v Norris and R v Sea. It is not suggested that defence counsel should have contended that the lower end was less than three years.
- Submissions: The written submission made for Mr Abdul-Hassien is that the suspension could have been earlier than the usual one third because of his “fragile state of mind and mental health”, the fact that he was to serve the imprisonment in Queensland isolated from his family in New South Wales and his background in having lived in a war-torn country. Suspension after six or nine months is proposed.
- In oral submissions, reference was also made to the fact that for the two years immediately prior to sentence, Mr Abdul-Hassien had been the primary carer for his ailing mother and full time carer for his daughter. This and the matters referred to in the immediately preceding paragraph “could further ameliorate the sentence”, counsel submitted. As well, counsel referred to the observations of Peter Lyons J in R v Agboti, particularly that the prisoner’s perceived prospects of rehabilitation will generally make a significant difference in fixing the minimum period in actual custody that he must serve.
- Discussion: Mr Abdul-Hassien does not complain that despite the relevance of each one of those above factors to sentencing, it was not taken into account by the learned sentencing judge. Nor could he have done so. His Honour referred to the opinions expressed by Ms J Dombrowski, psychologist, in her report with respect to Mr Abdul-Hassien’s depression and significant financial issues and resultant gambling problem. He also referred to the war-torn background in which Mr Abdul-Hassien spent his formative years. Regard for his carer responsibilities in New South Wales was reflected in suspending the sentence rather than subjecting him to parole conditions that would have required residence and reporting in Queensland.
- As noted, Mr Abdul-Hassien does not complain about his head sentence. His complaint is that his sentence is manifestly excessive in that it is suspended after 12 months and not after a shorter period.
- In this context, it need be borne in mind that the High Court of Australia has consistently held that appellate intervention on the ground of manifest excessiveness is not warranted unless having regard to all of the relevant sentencing factors, the appellate court is driven to conclude that there must have been some misapplication of principle by the sentencing judge.
- To submit that the period to be served by Mr Abdul-Hassien before suspension of his sentence could have been less than 12 months having regard to those factors, falls well short of a submission that the sentence is manifestly excessive because it is 12 months. The submission neither asserts that there must have been some misapplication of principle in fixing the period to be served at 12 months, nor articulates why that must be so.
- Putting to one side this shortcoming in the submission that has been made, I am, nevertheless, unable to see why this Court ought to conclude that there has been some misapplication of principle in fixing the period to be served before suspension. I agree with the respondent’s submission that this ground of appeal has not been made out.
Mr Bannout and Mr El Sayed’s applications – parity
- At the hearing of the applications, leave was granted to Mr Bannout to add a second ground of appeal, namely, that the learned sentencing judge erred in law in failing to have regard to the parity principle. His other ground of appeal is the same as Mr El Sayed’s sole ground of appeal – that the sentence is manifestly excessive. In view of the written submissions made on behalf of Mr El Sayed, it is appropriate to regard his ground of appeal as embracing the error of law separately raised by Mr Bannout.
- The submissions made by both applicants in relation to parity are similar. It is convenient to consider them together.
- Submissions: It is submitted for these applicants that Mr Abdul-Hassien had a greater role in the offending than they did. He had booked and paid for the rental cars and accommodation and he had paid a taxi driver for skimming.
- Counsel cited the observations of Dawson and Gaudron JJ in Postiglione v The Queen that “if there are relevant differences, due allowance should be made for them” in sentencing co-offenders in order to achieve equal justice. “[D]ifferent sentences may reflect different degrees of culpability or their different circumstances”, their Honours said.
- It was argued that, here, there was a relevant difference on account of Mr Abdul-Hassien’s greater role. That it had not been reflected in either the head sentence or period to be served before suspension in the other applicants’ cases gave rise to a justifiable sense of grievance on their part, it was further argued. It was then submitted that consistently with the decision of the High Court in Lowe v The Queen, appellate intervention was warranted. The head sentence for these applicants should be set aside and substituted with a sentence of between two and two and half years with a suspension after serving up to one third of the period of imprisonment imposed.
- In developing these arguments, counsel were critical of the applicants’ counsel at the sentence hearing in not pressing an argument that Mr Abdul-Hassien had had a greater role in the offending and that that factor ought to have been reflected in lesser sentences for them. That lapse had arisen, it was suggested, from a failure to observe the observations of Brennan J in Lovelock v The Queen that where the interests of an accused require that a distinction be made between his circumstances and those of a co-accused, those interests are best served, and the court is best assisted, by separate counsel representing the several accused. However, this suggestion was not accompanied by a submission that had there been separate representation, either co-accused would have challenged any fact in the Schedule of Facts.
- Discussion: The parity principle countenances different sentences for co-offenders where there is a relevant difference in their offending or circumstances. Here, reliance is principally placed by Mr Bannout and Mr El Sayed upon there having been a relevant difference between their offending and that of Mr Abdul-Hassien. His was worse, they submit.
- This submission encounters an obvious difficulty in that the learned sentencing judge did consider whether there was such a relevant difference in their offending as would attribute measurably greater criminality to Mr Abdul-Hassien’s offending than to theirs. He concluded that there was not. To use his Honour’s words, Mr Abdul-Hassien was not placed “in a more serious position” than the others by virtue of the identified additional tasks he performed.
- There is no appeal against that finding. The consequence of it is, of course, to preclude any scope for the application of the rule that forms part of the parity principle that an appreciable difference in the criminality of the offending of co-offenders ought to be reflected in different sentences for them.
- Secondly, had the learned sentencing judge found that the criminality of Mr Abdul-Hassien’s offending was appreciably worse than that of his co-offenders, he may well have imposed a head sentence greater than three years imprisonment on him. That, it will be recalled, was at the lower end of the range suggested by sentencing decisions involving this type of offending. Had that happened, a sentence of three years imprisonment might well still have been imposed on these applicants.
- For these reasons, I conclude that the contention that the learned sentencing judge failed to apply the parity principle on account of a relevant difference in offending, is misplaced. It cannot be accepted.
- I would, at this point, add that it was also submitted for Mr Bannout that there was a relevant difference in his circumstances which, in order to achieve parity, called for a lesser sentence in his case. For reasons discussed later, I do not accept that submission.
- Finally, as to the observations of Brennan J in Lovelock, for the reasons given by the learned sentencing judge, there was no apparent relevant difference in either the offending or the circumstances of these co-accused. That being so, the applicants have not demonstrated that they needed to have been separately represented.
Mr Bannout’s additional submission
- For Mr Bannout, it was submitted that his personal circumstances were more deserving of leniency than those of his co-offenders on account of his post-traumatic stress disorder and additional stress during 2016 caused by epileptic fits sustained by his eldest daughter. He had a primary carer role for this daughter while his wife principally cared for their younger children. Reliance was placed on these circumstances for parity purposes, and more generally, in support of an argument that his sentence is manifestly excessive.
- I am unpersuaded that this submission should be accepted. As the learned sentencing judge noted, Mr Bannout was not alone in suffering stress and depression. His co-offenders also suffered depression. As in Mr Abdul-Hassien’s case also, it led to a gambling habit and ultimately precipitated the offending. As well, Mr Abdul-Hassien was subject to the stresses of being a primary carer for a family member.
- In these respects, Mr Bannout’s circumstances did not warrant a lesser sentence than that imposed on Mr Abdul-Hassien. Nor do they compel a conclusion that there must have been a misapplication of principle in sentencing Mr Bannout to three years imprisonment suspended after 12 months.
- None of the grounds of appeal advanced by the applicants has succeeded. The applications for leave to appeal against sentence must therefore be refused.
- I would propose the following order in each application for leave to appeal against sentence:
- Application refused.
- APPLEGARTH J: I agree with the reasons of Gotterson JA and with the order proposed in each application.
 AB 5-8, 1-4 and 9-12.
 AB 14-15.
 Exhibit 2: AB 67-71.
 AB 56 l19.
 Ibid ll28–32.
 Report of Ms Julie Dombrowski, psychologist, dated 29 November 2018 – Exhibit 6: AB 75-80.
 Report of Dr Olav Nielssen, psychiatrist, dated 14 December 2018 – Exhibit 8: AB 85-90.
 Report of Bianca Frahm, psychologist, dated 12 December 2018 – Exhibit 13: AB 97-105.
 AB 40 Tr 1-13 ll43-46.
 AB 41 Tr 1-14 ll8-26.
 AB 47 Tr 1-20 ll1-11.
 AB 48 Tr 1-21 ll9-11.
 AB 56 ll14-28.
 Mr Abdul-Hassien’s Outline of Submissions (“A-HOS”) paragraph 14.1.
  QCA 376.
  QCA 421.
 A-HOS paragraph 14.1.
 A-HOS paragraph 15.3.
 Appeal Transcript (“AT”) 1-2 l39.
 AT 1-3 ll10-12.
  QCA 280 at  (Muir and Morrison JJA agreeing).
 AB 57 ll27-45; AB 58 ll1-26.
 Most recently in R v Pham  HCA 39; (2015) 256 CLR 550 per French CJ, Keane and Nettle JJ at .
 AT 1-3 ll20-44.
 (1997) 189 CLR 295 at 301.
 (1984) 154 CLR 606.
 Mr Bannout’s Outline of Submissions paragraph 32; Mr El Sayed’s Outline of Submissions paragraph 29.
 (1978) 33 FLR 132 at 136-137, repeated by his Honour in Lowe at 618.
- Published Case Name:
R v Bannout; R v Abdul-Hassien; R v El Sayed
- Shortened Case Name:
R v Bannout, Abdul-Hassien & El Sayed
 QCA 156
Fraser JA, Gotterson JA, Applegarth J
16 Aug 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC770/18 (No Citation)||17 Dec 2018||Date of Sentences (Kent QC DCJ).|
|Appeal Determined (QCA)|| QCA 156||16 Aug 2019||Applications for leave to appeal against sentence refused: Fraser and Gotterson JJA and Applegarth J.|