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Court of Criminal Appeal 15 December 2000

Regina v El-Youssef

[2000] NSWCCA 481

Assault & violenceTheft & property
SENTENCING SEVERITY APPEAL "AN ENORMOUS CRIMINAL ENTERPRISE" NO QUESTION OF PRINCIPLE.

Citation: Regina v El-Youssef [2000] NSWCCA 481
Court: New South Wales Court of Criminal Appeal
Date: 15 December 2000
Judge(s): Barr J; Carruthers AJ

Background

The applicant, a man in his early thirties with a prior criminal history including a conviction for break, enter and steal, pleaded guilty to five counts of robbery in company under s 97(1) of the Crimes Act 1900. A further four counts of robbery in company were taken into account on a Form 1 (a procedure under which offences not formally charged are acknowledged and factored into sentencing). All nine offences involved robberies of banks or post offices in the western suburbs of Sydney, committed between September 1997 and April 1998. The applicant was on parole for much of this period.

The robberies were carried out with co-offenders, several of whom were armed with pistols or knives. Staff members were threatened on each occasion, and the total sum taken across the offences was approximately $233,866. The trial judge at the Liverpool District Court described the conduct as "an enormous criminal enterprise."

At first instance, Judge O'Reilly QC imposed an overall sentence of ten years imprisonment with a minimum term of seven years on the first count, with concurrent fixed terms of seven years on the remaining counts. The applicant sought leave to appeal, arguing the sentence was manifestly excessive given the early guilty pleas and the historical range of sentences for comparable offences.

  • Whether the overall head sentence of ten years was manifestly excessive in light of the applicant's early guilty pleas and the historical sentencing range for s 97(1) offences.
  • Whether the sentencing judge erred by starting from too high a notional starting point before applying a discount for the guilty pleas.
  • Whether these offences fell within the "worst category" of cases for robbery in company.
  • Whether the sentencing statistics for s 97(1) offences provided meaningful guidance in a case of this complexity and scale.

Decision

The Court of Criminal Appeal granted leave to appeal, given the length of the sentences, but dismissed the appeal. Carruthers AJ (with Barr J agreeing) found no error in the sentencing judge's reasoning, and concluded the sentences were within the proper exercise of judicial discretion when the objective and subjective circumstances were balanced.

The applicant's argument that a head sentence of more than seven years was inappropriate rested heavily on sentencing statistics suggesting the typical range for s 97(1) offences was three to eight years. The Court rejected this submission. Those statistics captured a far broader class of cases and provided, at most, marginal assistance given the number of offences, the applicant's prior criminality, and his status on parole at the time of most of the robberies.

The Court also rejected the contention that these offences did not fall within the worst category of cases. The speed with which the robberies were executed reflected professional planning rather than lesser seriousness. Three robberies involved a pistol; one involved a large serrated knife. The absence of physical injury to staff did not exclude the prospect of severe psychological harm, and the Court noted the well-known practice of banks providing counsellors to staff traumatised by armed robberies.

On the sentencing structure, the Court observed that the sentences had been imposed before the High Court's decision in Pearce v The Queen (1998) 194 CLR 610 and were structured on totality principles. Carruthers AJ expressed confidence that, had the judge applied the Pearce framework, the overall effect would have been the same.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing statistics for a given offence type provide only marginal guidance where a case involves an unusually large number of offences, prior criminality, and offending on parole.
  • A conviction for robbery in company is an offence of the utmost gravity, particularly where arms are involved; the absence of physical injury to victims does not automatically remove a case from the worst category.
  • Offending while on parole is a significant aggravating factor that properly attracts a more severe sentencing outcome.
  • No error was established in the sentencing judge's reasoning, and the Court declined to interfere with a sentence within the available discretion despite forceful submissions about the guilty pleas and historical ranges.
  • Sentences structured on totality principles before Pearce v The Queen were not, in themselves, grounds for appellate intervention where the overall outcome would have been the same under the Pearce framework.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances)

Cases:
- R v Tran (1999) NSWCCA 109
- Pearce v The Queen (1998) 194 CLR 610
- R v Valentini (1989) 46 A Crim R 23