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Court of Criminal Appeal 13 July 2001

R v Elkhouri

[2001] NSWCCA 277

Theft & property
CRIMINAL LAW SENTENCING OTHERWISE, NO QUESTION OF PRINCIPLE

Citation: R v Elkhouri [2001] NSWCCA 277
Court: Court of Criminal Appeal, New South Wales
Date: 13 July 2001
Judge(s): Simpson J, Sperling J

Background

The appellant was convicted after a trial before Shillington DCJ in the District Court on one count of break, enter and steal, involving the theft of a motor vehicle in March 1999. He was sentenced to two years and six months imprisonment with a non-parole period of just under two years. Three weeks later, following guilty pleas before Karpin DCJ, he was sentenced on three counts of receiving stolen motor vehicles, with two further similar offences taken into account.

The facts before Karpin DCJ revealed that the appellant operated a panel-beating business at premises in Lidcombe. Police attending those premises found numerous vehicles and parts. Several vehicles were substantially stripped or had engines and chassis replaced with those from other vehicles. The enterprise was plainly one of "rebirthing" stolen motor vehicles, that is, disguising stolen vehicles for resale.

Karpin DCJ applied the totality principle (meaning the overall sentence should reflect the total criminality across all offences as a connected course of conduct) and imposed a head sentence of four years dating from the time of the original sentence. The appellant sought leave to appeal against both sentences.

  • Whether Shillington DCJ erred by taking judicial notice, without evidence and without notice to the appellant, of the prevalence of organised motor vehicle theft for resale.
  • Whether Shillington DCJ gave undue weight to the appellant's criminal record and failed to find special circumstances warranting a longer parole period.
  • Whether Karpin DCJ erred in relying on, or was improperly influenced by, Shillington DCJ's findings regarding the purpose of the offending.
  • Whether Karpin DCJ correctly identified and applied the principle of totality across both sentencing proceedings.
  • Whether Karpin DCJ made an error in calculating the non-parole period, and whether special circumstances were properly considered.

Decision

The Court of Criminal Appeal dismissed both appeals, granting leave but finding no appealable error in either sentencing exercise.

On the judicial notice point, the Court confirmed that a sentencing judge is entitled to take notice of the prevalence of particular kinds of crime and to apply that knowledge when considering the need for general deterrence. The Court found that Karpin DCJ's observation that "the rebirthing of cars is endemic in the community" was a legitimate exercise of that principle, supported by the cases of Brenton and A. Further, the evidence itself placed the appellant's representatives on notice that the nature and purpose of the offending would be relevant at sentencing. No unfair surprise arose.

On the question of Shillington DCJ's influence on Karpin DCJ, the Court found that any error by Shillington DCJ was immaterial. Karpin DCJ made her own independent findings from the evidence before her, and her conclusion that a rebirthing operation was being conducted was, in the Court's view, compelled by that evidence regardless of what Shillington DCJ had found. His sentence also ceased to have any practical significance once Karpin DCJ imposed a longer encompassing sentence.

Regarding the non-parole period, the Court noted that Karpin DCJ had set a period of two years and six months against a head sentence of four years, which was shorter than the provisional statutory minimum of three years. The Court reasoned that this could only have been the result of Karpin DCJ finding special circumstances, even though she did not explicitly state that conclusion. The Court also rejected the totality submission, finding that Karpin DCJ's record showed awareness of the principle and that the sentence was consistent with the overall criminality involved.

Orders Made

  • Leave to appeal granted in both matters.
  • Appeal in each case dismissed.

Key Takeaways

  • A sentencing judge in New South Wales is entitled to take judicial notice of the prevalence of a particular type of crime without evidence being formally adduced, and may treat that prevalence as a basis for emphasising general deterrence in the sentencing exercise.
  • Where the evidence before a sentencing judge independently and irrefutably establishes a factual finding, any error by an earlier sentencing judge in making the same finding will not constitute appealable error affecting the later sentence.
  • In applying the totality principle across multiple sentencing proceedings, a later sentencing judge may legitimately encompass the full course of criminal conduct, effectively displacing the practical significance of an earlier, shorter sentence.
  • Sufficient inference of a finding of special circumstances can be drawn where the non-parole period actually imposed falls below the statutory provisional minimum, even in the absence of explicit reasons, provided no arithmetic error could explain the discrepancy.
  • The Court of Criminal Appeal confirmed the principle, drawn from Brenton and A, that sentencing courts may factor in the social and financial consequences of prevalent crimes such as motor vehicle rebirthing when calibrating sentences for general deterrence purposes.

Legislation and Cases Referenced

Cases:
- A [1999] NSWCCA 61
- Brenton (NSWCCA, 14 November 1994, unreported)

Legislation:
No specific legislation was cited by title in the judgment, though the Court referred to provisions governing non-parole periods and the provisional statutory formula for calculating them.