Akkawi v R; Akkawi v R [2012] NSWCCA 11 (17 February 2012)

Last Updated: 19 April 2013

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal New South Wales

Case Title:	Akkawi v R; Akkawi v R
Medium Neutral Citation:	[2012] NSWCCA 11
Hearing Date(s):	29 November 2011
Decision Date:	17 February 2012
Before:	Simpson J at [1] Blanch J at [103] Rothman J at [104]
Decision:	1. Grant leave to appeal, allow the appeal, and re-sentence the applicants as follows: Mark Akkawi: Count 1: imprisonment for 5 years and 6 months, commencing on 29 May 2008 and expiring on 28 November 2013, with a non-parole period of 3 years and 3 months, expiring on 28 August 2011; Count 2: (taking into account the Form 1 offences) imprisonment for 6 years, commencing on 29 May 2009 and expiring on 28 May 2015, with a non-parole period of 4 years, expiring on 28 May 2013. Paul Akkawi: Count 1: imprisonment for 5 years and 6 months, commencing on 29 May 2008 and expiring on 28 November 2013, with a non-parole period of 3 years and 3 months, expiring on 28 August 2011; Count 2: imprisonment for 6 years, commencing on 29 May 2009 and expiring on 28 May 2015, with a non-parole period of 4 years, expiring on 28 May 2013; Count 3: (taking into account the Form 1 offences) imprisonment for 6 years, commencing on 29 August 2011 and expiring on 28 August 2017, with a non-parole period of 2 years and 9 months, expiring on 28 May 2014.
Catchwords:	CRIMINAL LAW - application for leave to appeal against sentences - pleas of guilty - aggravated detain for advantage - kidnapping - robbery in company - discharging a firearm with intent to cause grievous bodily harm - manifestly excessive sentences - special circumstances - parity of sentencing - aggregate non-parole periods - mental health - psychiatric illness - specific deterrence - s33A(1)(a) Crimes Act 1900 - s 86(2)(a) Crimes Act 1900 - s 97(1) Crimes Act 1900 - Pt 3 Div 3 Crimes (Sentencing Procedure) Act 1999 - s 9 Crimes (Sentencing Procedure) Act 1999 - s 11 Crimes (Sentencing Procedure) Act 1999 - s 44 Crimes (Sentencing Procedure) Act 1999
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Hili v The Queen [2010] HCA 45 R v Hemsley [2004] NSWCCA 228 R v Israil [2002] NSWCCA 255 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Thomson v R; Moody v R [2010] NSWCCA 124 Williams v R; Saunders v R [2006] NSWCCA 33
Category:	Principal judgment
Parties:	Mark Akkawi (Applicant) Regina (Respondent) Paul Akkawi (Applicant) Regina (Respondent)
Representation
- Counsel:	Counsel S Hanley SC (Mark Akkawi) G Turnbull SC (Paul Akkawi) F Veltro (Respondent)
- Solicitors:	Solicitors Jack Rigg Solicitors (Mark Akkawi) Jack Rigg Solicitors (Paul Akkawi) Directors of Public Prosecutions (Respondent)
File Number(s):	09/5903; 09/5904
Decision Under Appeal
- Before:	Colefax DCJ
- Date of Decision:	03 December 2010
- Citation:	N/A
- Court File Number(s):	09/5903; 09/5904

JUDGMENT

1. SIMPSON J: On 3 September 2010 the applicants were sentenced in the District Court to terms of imprisonment, following their pleas of guilty (entered in the Local Court) to two charges (in the case of Mark Akkawi) and three charges (in the case of Paul Akkawi). Each applicant now seeks leave to appeal against the severity of the sentences imposed.
   
2. Mark Akkawi pleaded guilty to two counts brought under s 86(2)(a) of the Crimes Act 1900, of aggravated detaining for advantage (the offence commonly known as kidnapping). Each count carries a maximum penalty of imprisonment for 20 years. In addition, he asked, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), that a further two counts, of robbery in company, itemised on a Form 1 (the "Form 1 offences"), be taken into account. Pursuant to s 97(1) of the Crimes Act, each such count (if charged separately) also carries a maximum penalty of imprisonment for 20 years.
   
3. Paul Akkawi pleaded guilty to the same two counts of aggravated detaining for advantage; the third count to which he pleaded guilty was brought under s 33A(1)(a) of the Crimes Act, of discharging a firearm with intent to cause grievous bodily harm. Such an offence carries a maximum penalty of imprisonment for 25 years. Like Mark Akkawi, Paul Akkawi asked that a further two offences, of robbery in company, identified on a Form 1, be taken into account pursuant to Pt 3 Div 3 of the Sentencing Procedure Act.
   
4. Colefax DCJ sentenced Mark Akkawi as follows:
   

Count 1: Imprisonment for 5 years, 11 months and 12 days, commencing on 29 May 2008 and expiring on 10 May 2014, with a non-parole period of 3 years, 6 months and 25 days, expiring on 23 December 2011.

Count 2 (taking into account the Form 1 offences): Imprisonment for 6 years, 9 months and 16 days, commencing on 29 May 2010 (and therefore accumulated by 2 years on the previously imposed sentence), expiring on 16 March 2017, with a non-parole period of 4 years and 28 days, expiring on 25 June 2014. The aggregate sentence was imprisonment for 8 years, 9 months and 16 days, with a non-parole period of 6 years, 27 days (with a balance of term of 2 years, 8 months and 19 days).

5. On the two aggravated detain for advantage counts, Colefax DCJ imposed on Paul Akkawi sentences identical to those he had imposed on Mark Akkawi. On the third count, the firearm offence, taking into account the Form 1 offences, he imposed a sentence of imprisonment for 6 years, 9 months and 18 days, commencing on 29 May 2012 and expiring on 16 March 2019, with a non-parole of 4 years and 28 days, expiring on 25 June 2016. As can be seen, this sentence was further accumulated by 2 years upon the second of the earlier imposed sentences. The aggregate sentence imposed on Paul Akkawi was therefore imprisonment for 10 years, 9 months and 16 days, with a non-parole period of 8 years and 27 days.
   
6. In respect of each applicant's pleas of guilty, Colefax DCJ allowed, in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, a reduction of 15% in the sentences he otherwise would have imposed. In respect of each applicant, he found special circumstances justifying departure from the ratio between the head sentence and the non-parole period specified in s 44(2) of the Sentencing Procedure Act. In each case he gave as the reasons that each applicant would be sentenced for the first time to imprisonment; his relative youth; his good prospects for rehabilitation; and that his prospects of rehabilitation would be enhanced by a longer period on parole.
   
7. The counting of the sentences down to months and days is one of a number of unusual features of this case. I will return to this in due course.
   

The facts

Background

8. The circumstances of these offences are another of the unusual features of this case. The offences were committed over a two day period in March 2008. The applicants are brothers, then aged 21 (Mark Akkawi) and 23 (Paul Akkawi). Although the facts were put before the sentencing judge by way of an agreed statement, in recounting the circumstances of the offences, for completeness I will draw upon material that emerged during the preparation of the cases to be advanced on behalf of the applicants, and which was not the subject of dispute.
   
9. The applicants are the only two children of an Australian born mother and Lebanese born father. (I will return to deal in more detail with their personal circumstances. For present purposes I include only that which is necessary to comprehend the circumstances of the offending.)
   
10. In about 2007, the applicants' mother inherited from her mother a sum of about $250,000. After paying some gambling debts of Paul Akkawi, she put aside $150,000 (in cash), intending to use it to build a house for investment purposes on land that had belonged to her mother. In October 2007, Mrs Akkawi travelled to Dubai to work. She left the money in the charge of Paul Akkawi, to be used for the building work. Paul Akkawi had already developed a significant gambling problem, and promptly applied $50,000 of the money to that activity; the money was lost. He then borrowed, at a high interest rate, $50,000 in order to finance the building work. He lost this money to gambling as well.
    
11. Some time in 2007, Paul Akkawi was introduced to a person called George Tzortzis. After a time, Tzortzis and Paul Akkawi entered into an agreement for the supply of cocaine, at a discounted price, by Tzortzis to Paul Akkawi. (It was never Tzortzis' intention to supply the cocaine.)
    

The offences

Count 1: Aggravated detain for advantage: victim: Father Philippos Apostolopoulous.

12. On Sunday, 2 March 2008, Paul Akkawi, with Mark Akkawi, and another man, not identified, by arrangement met Tzortzis at a Greek Orthodox Church in Surry Hills. Also present at the meeting was Father Philippos Apostolopoulous, the parish priest of the church. Father Apostolopoulous speaks limited English. Tzortzis had, from time to time, lived at the rectory of the church with Father Apostolopoulous.
    
13. The men discussed the sale of cocaine. Paul Akkawi handed Tzortzis $100,000 in cash. Tzortzis took the money and left the state. He turned off his mobile telephone. Shortly after, he left the country. The applicants and the third man became alarmed when he did not return and they could not contact him. They realised that they had been cheated. One of the men demanded Father Apostolopoulous' mobile phone, which, in fear of violence, he handed over. The men ordered Father Apostolopoulous to go outside. He refused. One of the men raised his shirt, and revealed a pistol. Father Apostolopoulous went outside as directed, in fear for his safety. He was directed to enter a vehicle, which he did. He sat in the back seat. He was crying. The unidentified man was driving the vehicle. It travelled for about 30 minutes. The men shouted at Father Apostolopoulous, telling him not to cry, and not to ask for help. One of them threatened to kill him, and demanded to know where Tzortzis and the money were. They drove him to a home at an unidentified location. He remained in the vehicle, while a number of other males approached. The applicants and the unidentified man drove Father Apostolopoulous to a café. The men ordered Father Apostolopoulous to remain in the vehicle, and not move or talk. The man who had the gun removed it from his shorts and handed it to one of the others.
    
14. The three men walked Father Apostolopoulous across the road to a laneway, where they were met by a group of five or six men. One of them took Father Apostolopoulous by the hand and threatened to cut off his finger if he did not pay the money. Father Apostolopoulous called for help and was told to shut up. The men continued to ask him about the whereabouts of Tzortzis and the money. They walked Father Apostolopoulous back across the road to the café where the applicants and the unidentified man ordered him some food. They left him alone in the café for a time. A Greek speaking man approached and spoke to him. Father Apostolopoulous told him that he had nothing to do with the money. Two of the three men then drove Father Apostolopoulous back to the church and released him. He asked for his telephone and was told "tomorrow". The telephone was never returned to him.
    
15. These facts give rise to the first aggravated kidnapping charge. The circumstance of aggravation was that the applicants were in company. The advantage sought to be obtained was the return of the money that Paul Akkawi had given to Tzortzis. The taking of the mobile telephone constituted the first robbery in company offence on each Form 1.
    

Counts 2 and 3: detain for advantage/robbery in company: victim: Peter Theodossiou; discharge firearm

16. Prior to living at the rectory with Father Apostolopoulous, Tzortzis had lived in Belmore with Peter Theodossiou. His car was registered to that address. On the evening of 2 March 2008, Theodossiou was at the home of a Steven Liondos in Canterbury. Father Apostolopoulous telephoned a told him of the events of the day.
    
17. The applicants were able to gain access to information about the address at which Tzortzis' vehicle was registered. Late on 2 March, the applicants and the unidentified man arrived at Liondos' address, and asked where Tzortzis was. Theodossiou said that he did not know. They asked for Tzortzis' telephone number. Theodossiou took out his mobile telephone and searched for the number. One of the men took the phone from him, and one of them scrolled through the numbers recorded in it. They demanded to know where Tzortzis was. Theodossiou said he did not know. He said that Tzortzis lived in Campsie. Mark Akkawi ordered Theodossiou to take the men to the address. One of the men reached into the boot of Theodossiou's car, and removed a number of crowbars. Mark Akkawi and the other man took hold of Theodossiou and walked him down the driveway. They pushed him into a motor vehicle. Theodossiou directed the driver to Tzortzis' apartment in Campsie. They were followed by another vehicle occupied by a number of men. Mark Akkawi left the vehicle for a time (presumably to see if Tzortzis was present in the unit) and returned shortly after. The men drove Theodossiou to a nearby park, where they met the men from the second vehicle. Mark Akkawi opened the door and ordered Theodossiou out. Theodossiou feared for his life; he was very frightened. He asked what the men wanted. He pleaded with Mark Akkawi, and begged not to be harmed. The men ordered him to the park. They demanded information about Tzortzis, and about Tzortzis' parents. One of the men was looking through Theodossiou's telephone, and demanded information about the individuals there listed.
    
18. Paul Akkawi produced a firearm, which he discharged at close range into Theodossiou's leg. The men then ran back to their cars.
    
19. In severe pain, Theodossiou crawled to the street and screamed for help. He was taken to the Royal Prince Alfred Hospital, where he underwent emergency surgery. He sustained a fractured right femur. He remained in hospital until 18 March.
    
20. The detention of Theodossiou constituted the second aggravated kidnapping offence, committed by both applicants. The circumstance of aggravation again was that the offence was committed in company. The theft of the mobile telephone, which was never returned, constituted the second offence of robbery in company on each Form 1. The shooting of Theodossiou constituted the discharge firearm offence charged against Paul Akkawi. Mark Akkawi was not a party to that offence, and was not charged.
    
21. Evidence of the consequences of the shooting of Theodossiou was given by way of a medical report of an orthopaedic surgeon, dated 29 October 2009, and a Victim Impact Statement made by Theodossiou and signed on 14 April 2010. Dr Boyle, the orthopaedic surgeon, said that the likelihood of complete union of the fracture was good, but risks of malunion, non-union and infection remained. He said there was significant muscle loss which was likely to result in ongoing reduced strength in the lower leg, as well as restriction in range of motion of the knee. The expected time for recovery was 12 to 14 months.
    
22. In his Victim Impact Statement, Theodossiou recorded the events of the evening when he was shot. What follows is a much abbreviated synopsis of a very lengthy statement. Theodossiou said that he believed that he was to be "executed" and that he was going to die. He said that, on transfer to hospital, he made "one desperate phone call" to his family, telling them what had happened, and asking them to go away and hide. He said that he asked the doctors to "please save my leg", and that shortly after he was taken to an operating theatre where a team of five specialist doctors operated on him for seven and a half hours. On regaining consciousness the next day he was in severe pain and had lost a lot of blood. He was shocked to see the condition of his leg. During his time in hospital he lost more than 15 kilograms of body weight and was very weak and fragile. He said that he remained in hospital for a month.
    
23. He said that he had had a career as a professional folkloric dancer, which he believed would come to an end and that he would never be able to dance nearly as well as previously. He also said that he had had a newly commenced business fitting aluminium doors and windows, which demands heavy lifting and strong balance, and that that business was lost to him.
    
24. He said that after his discharge from hospital he went into hiding for many months and did not return home because he was warned that it was too dangerous for him.
    
25. He said that he continues to suffer physically and mentally; he had had a very hard time learning to walk again, to shower and to attend to his personal hygiene. He suffered a lot of pain, numbness and discomfort in his right leg, and also had pain in the left leg.
    
26. He continued to be very frightened. His social life has been significantly detrimentally affected. He is very security-conscious.
    
27. Both applicants were arrested on 29 May 2008, and have remained in custody since that date.
    

The applicants' personal circumstances

28. Although the two applicants are brothers, and were brought up together, and were close, the evidence concerning their personal circumstances has some surprising divergences. Some evidence of their personal circumstances was given by their mother. In respect of each applicant, his Honour had available to him a Pre-Sentence Report prepared by an officer of the Probation and Parole Service, and a psychological report prepared by Dr Katie Seidler (a separate report in respect of each applicant). In respect of each applicant there were a number of testimonials and references. In respect of Paul Akkawi there was additional medical evidence, in particular a report of a psycho-pharmacologist and, one of a psychiatrist, Dr Glenys Dore. Neither applicant gave evidence in the sentencing proceedings.
    
29. I will begin with the evidence concerning Mark Akkawi.
    

Mark Akkawi

30. Mark Akkawi is the younger of the two brothers. He was born in October 1986, and was, as mentioned above, 21 years of age at the time of the offences. He has some criminal history, consisting of motor vehicle offences (one of driving recklessly or furiously or at a speed or in a manner dangerous) and one of conspiracy to steal. In respect of this last offence he was, at the time of the present offences, subject to a bail order made under s 11 of the Sentencing Procedure Act (which section permits a lengthier than usual period of adjournment for the purpose of assessment, or demonstration, of rehabilitation).
    
31. On 28 March 2008, after the present offences, but before his arrest, he was dealt with for this offence by way of a s 9 bond to be of good behaviour for 3 years. No other information about this offence was provided.
    
32. Otherwise, evidence of his personal circumstances was given as mentioned above.
    
33. The Probation and Parole officer who signed the Pre-Sentence Report (on 16 October 2009) reported that Mark Akkawi had complied with the conditions of his bail on the conspiracy offence, and had been referred for gambling counselling, with which he had also complied.
    
34. Prior to his arrest, Mark Akkawi was living with his parents and Paul Akkawi. He was attending university, where he was undertaking a Bachelor of Business (Economics and Finance) degree. He gave an account of a family life that was happy and positive. His mother, who also provided information to the Probation and Parole officer, described him as "well-balanced" and "family oriented", but "highly strung" and prone to anxiety.
    
35. He has had no reported problems with alcohol or other drugs, but has had a problem with gambling. He had been referred for counselling. At the time of the preparation of the report, he acknowledged that he continued to gamble occasionally but claimed that he did not do so at a level that caused financial stress. He had had to call on his mother to pay some gambling debts.
    
36. The Probation and Parole officer considered him to be a young man of considerable talent, with potential to make a positive contribution to society. At that time, Mark Akkawi had been in custody for 18 months. An updated report, dated 15 April 2010, when he had been in custody almost two years, confirmed that he had been charged with no internal offences. As a result of internal transfers, he found it difficult to become settled and engage in services provided by the Department of Corrective Services. He had completed an anger management program.
    
37. The psychological report was prepared by Dr Katie Seidler, who assessed Mark Akkawi on 10 November 2009. She took a history of his early life similar to that of the Probation and Parole officer, of a stable and supportive family environment, with no abuse, neglect, financial stringency or social disadvantage.
    
38. Mark Akkawi described a particularly close relationship with his mother, but also was very positive about the dynamics with his father. (The significance of this will become apparent when I come to the personal circumstances of Paul Akkawi.) Although Mark Akkawi reported that he began using alcohol at the age of 15, and sometimes engaged in binge drinking, this was seen by Dr Seidler as "fairly conventional late adolescent and early adult" recreational behaviour. However, Dr Seidler also recorded that he had begun gambling at about 15 years of age and soon became addicted. She considered that his gambling remained an issue to be addressed.
    
39. In addition, Dr Seidler took a history of anxiety dating back to Mark Akkawi's late adolescent or early adult years, anxiety which worsened in the context of the stress associated with problem gambling. He also described mild and transitory symptoms of depressed mood, but this was not seen by Dr Seidler as being at a clinical level.
    
40. Dr Seidler noted that Mark Akkawi had expressed regret for his behaviour, but she considered this to be "generally self-focussed" and that he continued to harbour anger and resentment towards Tzortzis for stealing Paul Akkawi's money. He told Dr Seidler that his offending was motivated by the desire to support his brother.
    
41. Notwithstanding her expressed reservations, Dr Seidler considered Mark Akkawi to be "a young man with positive future potential ...".
    
42. Because of the history of anxiety, Dr Seidler considered that Mark Akkawi would benefit from psychological intervention designed to boost him in developing skills better to understand and manage that condition. She retained concern about his gambling.
    
43. The testimonials were universally positive and expressed surprise at the involvement of Mark Akkawi in these offences.
    

Paul Akkawi

44. Paul Akkawi was born in November 1984 and was 23 years of age at the time of the offences. He also had some criminal history, including three convictions for driving whilst his licence was suspended, one of trespass, one of receiving motor vehicle parts, and one of offensive language.
    
45. The authors of all of the reports in his case recorded a noticeably different family history, or, perhaps more accurately, a noticeably different perception in Paul Akkawi as to the circumstances of his childhood and adolescence from that of his brother. To the author of the Pre-Sentence Report, Paul Akkawi described "a significant lack of parental guidance as a child". He said that his father travelled a lot for work, and had significant gambling issues. As a result of the gambling, in 1994 "the family went bankrupt", and his mother was forced to return to work to provide for the family. This was not mentioned in the histories taken in respect of Mark Akkawi. Paul Akkawi's mother confirmed the absence of the applicant's father from the home during Paul Akkawi's formative years. She described Paul Akkawi as a nervous and "unsettled" child. She reported behavioural problems from a very young age. Although Paul Akkawi reported that his father could be very loving, he also reported that he used physical forms of discipline (something confirmed by his mother), sometimes to a level Paul Akkawi saw as excessive and abusive. When he was 18, Paul Akkawi was sent to Lebanon to live with relatives for a year.
    
46. Paul Akkawi was described as intelligent, sufficiently so to be included in programmes for gifted children. However, he was also disruptive and aggressive, eventually culminating in expulsion from at least one school. In 2007, when he was 22, he completed a bridging programme through which he earned admission to a Media and Communications Course at the University of NSW. He was in the first semester of that course when he was arrested in relation to the present offences.
    
47. The Probation and Parole officer recorded concerns about Paul Akkawi's behaviour from an early age, with anxiety attacks, and a suggestion of Attention Deficit Hyperactivity Disorder. However, out of resistance by Paul Akkawi and his mother to medication, this issue was not pursued. (Further detail will appear in the context of the psychiatric evidence.)
    
48. Paul Akkawi developed a gambling addiction at about age 16. He did not gamble during his year in Lebanon, but resumed on his return to Australia.
    
49. In 2007 Paul Akkawi suffered multiple losses with the deaths, in quick succession, of three grandparents, and his mother's move to Dubai.
    
50. Dr Seidler took a similar history. She found Paul Akkawi to be "a thoughtful, eloquent and reflective person, who has some insight". He described to her a "somewhat different", [from that described by his brother] upbringing repeating his account of his father's absences, his gambling, and the financial losses of 1994. He reported a very close relationship with his mother.
    
51. Paul Akkawi believed that, as a result of his gambling losses, his father suffered from depression for several years, as a result of which he (Paul Akkawi) was forced to take on additional family responsibility.
    
52. He began using alcohol at about 15 years of age; this escalated and he was a heavy consumer of alcohol for a period thereafter.
    
53. He also reported to Dr Seidler a long list of mental health concerns, including:
    

"constant and debilitating anxiety that has been both distressing and causing functional impairment in a number of domains".

Dr Seidler reported more recent concerns that Paul Akkawi may suffer from bi-polar disorder, with paranoid ideation. She considered that his reported symptoms were most consistent with a mood disorder, but also clearly prominent were features of anxiety and paranoid personality profile.

54. Although she administered psychometric tests, she found the results invalid, suggesting an exaggerated and implausible response, which could be attributed either to malingering, or to a disordered and dysfunctional state where he was giving a "cry for help". In the light of his clinical presentation, Dr Seidler favoured the latter explanation.
    
55. As a result of Dr Seidler's comprehensive report, Paul Akkawi was referred to the psychiatrist, Dr Dore. Dr Dore recorded a similar history again, including the gambling, and very heavy alcohol consumption at the age of 18.
    
56. After a telephone consultation with Paul Akkawi's mother, as well as a lengthy interview with Paul Akkawi, Dr Dore provisionally diagnosed bi-polar disorder, with paranoid personality traits. These conditions appear to have existed since childhood.
    
57. In an important finding, Dr Dore said:
    

"It appears likely he was mentally ill at the time the crimes were committed, with an unstable mood disorder and abnormally high levels of anxiety and agitation. It is my impression that his judgment was impaired by mental illness, and that he acted in a manner that was uncharacteristic for him."

The Remarks on Sentence

58. Colefax DCJ recounted the relevant facts and circumstances of the offences in a manner that has not attracted criticism.
    
59. He noted that there was no Victim Impact Statement provided in relation to Father Apostolopoulous, and therefore no evidence that he had suffered any emotional distress additional to that that would ordinarily be expected following such a serious crime. He noted, in some detail, the lengthy Victim Impact Statement provided by Mr Theodossiou, as well as the medical reports. It is not necessary to restate what was therein contained.
    
60. He found, in relation to Mark Akkawi, that three circumstances aggravated the offence. The first was that each offence was committed in the victim's home; the second was the use of the firearm in each offence (excluding the separate offence constituted by the discharge, by Paul Akkawi, of the firearm); and the third that the offences were committed whilst on conditional liberty.
    
61. The first and second of these applied equally to Paul Akkawi, the third did not.
    
62. Colefax DCJ expressly rejected a submission made on behalf of Mark Akkawi that he ought to be treated more leniently than his brother because his role was "subsidiary" to that of Paul Akkawi. He considered that Mark Akkawi played "a prominent role" in the kidnapping of each victim. He found that, apart from the aggravating factor that Mark Akkawi was on conditional liberty, each applicant was equally culpable.
    
63. Later, specifically considering the issue of parity, he said:
    

"Parity is a significant issue in this case. Although Paul Akkawi is the older brother and appears to have been the moving force in obtaining the money which was given to Mr Tzortzis and negotiating the purpose of the transaction, I have already found that his brother Mark was not playing a subsidiary role in the circumstances of the kidnapping. Moreover, he was on conditional liberty at the time of the offences."

64. His Honour considered a submission that, excluding the shooting of Mr Theodossiou, the second offence was more serious than the first; he concluded that, if it were so, it was not by a greatly significant margin. In each case, the victim felt that his life was at risk; the applicants intended to terrorise the victims for the purpose of extracting information from them. While Father Apostolopoulous was threatened with physical mutilation (the threat to cut off his finger) and shown a gun, (suggesting that a more serious offence might be committed against him), that offence occurred in daylight hours; the offence against Mr Theodossiou took place after dark. Father Apostolopoulous was returned to the rectory; Mr Theodossiou was left abandoned and bleeding (and, I would add, seriously injured) in a dark and lonely place.
    
65. Notwithstanding the view expressed by the judge, the sentences imposed reflect a not insignificant differential, perhaps attributable principally to the fact that the offence against Mr Theodossiou was a second offence.
    
66. In relation to the question of accumulation of sentences, his Honour said:
    

"Although each of the offences was a separate act of criminality involving at least, in the cases of the kidnappings, two separate victims, the concept of totality requires there should be partial accumulation of the sentences." (AB 30)

67. His Honour turned to the personal circumstances of each applicant, dealing first with Paul Akkawi. His relatively brief observations focussed upon Paul Akkawi's serious problem with alcohol and gambling and what was subsequently disclosed concerning his psychiatric condition. He said:
    

"It is clear on the material that Paul Akkawi's gambling has been directly attributed to his offending behaviour and his gambling is a product of his psychiatric disorder. Now that the condition has been diagnosed, there are good prospects of successful treatment and for consequential rehabilitation, which in my view would be enhanced by a longer period on parole.

It was submitted by senior counsel for the offender that the shooting was apparently spontaneous and probably a consequence of the then undiagnosed mental illness of Paul Akkawi, to which I have just referred. That may be accepted. But a gun was taken to the park and indeed had been in the possession of two members of the original group of three for all of the afternoon. It was used in circumstances described by senior counsel for the offender as, 'a significant crime' involving, 'the shooting of a man, an unarmed man, a terrified man who had been kidnapped, shooting him in the leg once'. Accordingly, while this offender, because of his psychiatric illness, might not be an appropriate vehicle for the unqualified application of the principles of general deterrence, nevertheless, considerations of specific deterrence assume greater importance." (AB 28-29)

68. He then considered the personal circumstances of Mark Akkawi, noting, first, his age (21 years at offence, almost 24 years at sentencing), his significant gambling problem and "short, but relevant, criminal history". He noted that his offence was committed at a time when he was on conditional liberty.
    
69. He accepted a concession made on behalf of the Crown that each applicant had demonstrated relevant and genuine remorse, not limited to the pleas of guilty.
    
70. He determined to reduce each sentence by 15% by reason of the pleas of guilty, and made the finding of special circumstances pursuant to s 44(2) of the Sentencing Procedure Act, to which I have already referred.
    
71. He proceeded to impose the sentences set out above.
    

The grounds of the application

72. Three grounds of appeal were proposed in respect of Mark Akkawi. They were pleaded as follows:
    

"1. The applicant has a justifiable sense of grievance in relation to the sentence imposed on his co-accused.

2. The sentence is manifestly excessive.

3. The sentencing judge erred in failing to structure the sentences imposed so as to give proper effect to his finding of special circumstances."

73. In respect of Paul Akkawi, two grounds of appeal were proposed, as follows:
    

"1. His Honour erred when setting the aggregate non-parole period by failing to give proper effect to a finding of special circumstances.

2. His Honour erred by finding that specific deterrence assumed greater effect as a result of the applicant's psychiatric illness."

74. I will deal firstly with the application made by Mark Akkawi.
    

Mark Akkawi

Ground 1: Parity

75. Under the first ground, the applicant takes issue with the rejection by Colefax DCJ of the submission that his role was subsidiary to that of Paul Akkawi. Two particular matters were advanced in support of that challenge. They were that the purpose of the detention was tied to the activities and interests of Paul Akkawi and therefore should not bear upon the culpability of Mark Akkawi to the same degree; and that his Honour failed to take into account the relative ages of the two applicants.
    
76. In support of the first proposition, reliance was placed upon the decision of this Court in Williams v R; Saunders v R [2006] NSWCCA 33, per Hall J (with whom Basten JA and Howie J agreed). At [53], Hall J said that a finding made by the sentencing judge in that case concerning the reason or purpose for that offence was relevant both to objective seriousness and relative culpability of the two co-offenders. As is plain even from that brief synopsis, that was a finding made in respect of the particular circumstances of that case. Put briefly, Williams had been recruited to assist Saunders, who had already detained the victim, after the victim had broken into Saunders' premises and, as a result, a marijuana crop being grown by Saunders had been discovered by police. I do not read anything in the passages of the judgment of Hall J to which reference was made that operates as any statement of principle that could be translated to the present case.
    
77. The same applies to a decision of my own relied upon by the Crown to supposed contrary effect. That is the decision in Thomson v R; Moody v R [2010] NSWCCA 124. First, with respect to this point, my judgment was a minority decision; second, the remarks were made in the context of a joint criminal enterprise in which roles had been allocated to various participants. There I expressed the view that it was not readily apparent that the role of one offender could be distinguished from that of another merely on the basis of what he or she did. I emphasised that each case would depend on its own facts. The Crown's submission was that, in circumstances where the offences were not pre-planned, and were, in effect, spontaneous, the allocation of roles, to which I referred to in Johnson and Moody, is not material. The submission is valid.
    
78. Accordingly, I find little assistance in the authorities to which the court was referred in the determination of this issue.
    
79. However, it seems to me that there is some substance in the complaint made on behalf of Mark Akkawi, and there is some merit in the proposition that because the two kidnapping offences were committed in order to extricate Paul Akkawi from the predicament into which he found himself, first by gambling his mother's money, and second by giving what remained of it to Tzortzis, his culpability ought to be seen as greater. Moreover, the evidence establishes that Paul Akkawi was the older, and dominant, brother.
    
80. In my opinion, the relative positions of the two applicants called for some, if not great, differentiation.
    
81. There is therefore some, although limited, substance in this ground of the application.
    

Ground 2: Manifest excess

82. The complaint made under this heading is directed both to the individual sentences imposed, and to the degree of accumulation (two years), resulting, so it was argued, in a manifestly excessive aggregate sentence.
    
83. Reliance was placed upon statistics maintained by the Judicial Commission of NSW to support the submission. The statistics show that the range of sentences imposed for s 86(2)(a) offences is 18 months to 7 years. After a plea of guilty, the highest head sentence, of 6 years, was imposed in 15% of cases. (For the purpose of considering this ground, the applicant's head sentence in respect of the first count ought to be treated as 6 years.) Having regard to the circumstances of the first offence, I would not be disposed to find that that sentence was outside the range legitimately available.
    
84. The statistics would suggest that the sentence imposed in respect of the second count (6 years, 9 months and 16 days) is outside and well above the upper range of head sentences previously imposed. Only 4% of offenders, after pleading guilty, had been sentenced to such a term.
    
85. The limitations on the use that can be made of sentencing statistics are well known. Most recently, the High Court has endorsed the proposition that they stand as a yardstick against which to examine a proposed sentence (to which I would add, on appeal, an imposed sentence): Hili v The Queen [2010] HCA 45 at [54].
    
86. Taken alone the statistics would suggest that such a sentence is above the range of those that have, as a matter of history, been imposed. But it must be remembered that this offence was committed immediately after the first offence, it began at the victim's home, was committed after dark, and in circumstances where the applicants had recruited a considerable body of supported. And the victim was abandoned, seriously injured, in a dark place. I am unable to find that the second sentence was outside the range legitimately available.
    
87. I do, however, consider that, while some accumulation was required, the degree was in itself excessive, and resulted in an aggregate sentence that does not withstand the scrutiny of being measured against the yardstick of historical sentences. I would reduce the accumulation to one year.
    

Ground 3: Special Circumstances

88. It is apparent from the extracts from the Remarks on Sentence above that a significant reason for the finding of special circumstances pursuant to s 44 of the Sentencing Procedure Act was the benefit to be obtained by both applicants of a longer than normal period on parole. In each individual sentence, the non-parole period was therefore reduced to a little over 60% of the head sentence. That is a significant reduction on the statutory proportion of 75%.
    
89. However, as often happens where sentences are accumulated, a good deal of the benefit was lost as a result of the accumulation. The proportion of the overall non-parole period to the overall head sentence is just under 70%: a quite minor reduction.
    
90. I would accept that this did not reflect the sentencing judge's intention.
    
91. For this reason only the sentences imposed on Mark Akkawi must be reviewed, and set aside. It will be necessary to re-sentence.
    

Paul Akkawi

Ground 1: Special Circumstances

92. In this case, the departure from the judge's stated intention is even more marked. The overall non-parole period is reduced from 75% of the head sentence by only 8 days - 74.89%, on the Crown's calculations.
    
93. Although the Crown argued that no error has been demonstrated, and that the sentencing judge had reserved judgment prior to imposing sentence and had given careful thought to the structure of the sentences and the principle of totality, he could not argue against the proposition that he had expressly stated his intention of providing for a longer period on parole.
    
94. I am satisfied that this ground is made out.
    

Ground 2: Psychiatric Illness

95. The complaint under this ground is directed to that passage in the Remarks on Sentence in which his Honour, while relegating considerations of general deterrence to a position of lesser importance, held that "considerations of specific deterrence assume greater importance."
    
96. In my opinion, this ground is made out. It is of some importance, as, amongst other things, his Honour said this applicant, having been diagnosed correctly, is susceptible to treatment that will alleviate his problems. This finding impacts significantly upon the need for specific deterrence.
    
97. The authorities in relation to the effect of psychiatric illness on sentencing are well known: see, for example, the analysis and review of authorities in R v Hemsley [2004] NSWCCA 228; R v Israil [2002] NSW CCA 255. In particular, where the psychiatric illness is causally related to the offending behaviour, allowance may be made in recognition of that fact. It is here that the finding of Dr Dore, extracted above ([57]), is of importance. Further, as observed by the sentencing judge, psychiatric illness may justify giving reduced weight to questions of general deterrence.
    
98. In my opinion, insufficient weight was given to Paul Akkawi's psychiatric illness, particularly in respect of its relevance to questions of specific deterrence. Given the judge's acceptance that treatment of Paul Akkawi's condition would render him unlikely to offend again, it was an error to emphasise specific deterrence.
    
99. It follows that, in each case, I would grant leave to appeal, allow the appeal, and re-sentence the applicant.
    
100. I propose that the applicants be re-sentenced as follows:
     

Mark Akkawi:

Count 1: imprisonment for 5 years and 6 months, commencing on 29 May 2008 and expiring on 28 November 2013, with a non-parole period of 3 years and 3 months, expiring on 28 August 2011;

Count 2: (taking into account the Form 1 offences) imprisonment for 6 years, commencing on 29 May 2009 and expiring on 28 May 2015, with a non-parole period of 4 years, expiring on 28 May 2013.

That is an aggregate sentence for 7 years, commencing on 29 May 2008 and expiring on 28 May 2015, with a non-parole period of 5 years, expiring on 28 May 2013.

Paul Akkawi:

Count 1: imprisonment for 5 years and 6 months, commencing on 29 May 2008 and expiring on 28 November 2013, with a non-parole period of 3 years and 3 months, expiring on 28 August 2011.

Count 2: imprisonment for 6 years, commencing on 29 May 2009 and expiring on 28 May 2015, with a non-parole period of 4 years, expiring on 28 May 2013;

Count 3: (taking into account the Form 1 offences) imprisonment for 6 years, commencing on 29 August 2011 and expiring on 28 August 2017, with a non-parole period of 2 years and 9 months, expiring on 28 May 2014.

The aggregate is a sentence of imprisonment for 9 years and 3 months commencing on 29 May 2008 and expiring on 28 August 2017, with a non-parole period of 6 years, expiring on 28 May 2014.

Although I have found above that Mark Akkawi was less morally culpable than his brother, that finding is balanced by Paul Akkawi's mental illness. Accordingly, the sentences I propose in respect of the aggravated kidnapping offences are identical.

I have structured the sentences so as to achieve of the objective of implementing the finding of special circumstances in order to provide lengthier periods on parole.

101. I add one observation concerning the sentences imposed at first instance. In my opinion, the form of sentencing here undertaken (at first instance) is not to be encouraged. By this I refer to the imposition of sentences composed of years, months and days.
     
102. I assume that this was done in order to apply the reduction in sentence of 15% referrable to the pleas of guilty. However, it is conducive to error, both at first instance and on appeal. In my opinion, justice is better achieved by the conventional means of sentencing in round figures. There is nothing in R v Thomson; R v Houlton that requires a mathematical approach of the precision here demonstrated.
     
103. BLANCH J: I agree with Simpson J.
     
104. ROTHMAN J: I agree with Simpson J
     

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Amendments

15 Apr 2013	Discrepancy between orders in the reasons for judgment and orders on coversheet corrected	Paragraphs: Coversheet (Decision)
15 Apr 2013	Aggregate sentence of Mark Akkawi corrected as a result of the discrepancy between orders in the reasons for judgment and orders on coversheet	Paragraphs: [100]