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Court of Criminal Appeal 24 July 2001

R v ELCHAMI

[2001] NSWCCA 285

Assault & violenceTheft & property

Citation: R v Elchami [2001] NSWCCA 285
Court: NSW Court of Criminal Appeal
Date: 24 July 2001
Judge(s): Hulme J, Sully J, Newman AJ

Background

The Crown appealed against sentences imposed by Mahoney DCJ in the District Court on 20 April 2001. The respondent had been convicted of aggravated robbery and robbery in company, each carrying a maximum penalty of 20 years imprisonment under the Crimes Act. The sentencing judge had imposed concurrent sentences of five and a half years and four years respectively, both with non-parole periods of only 12 months.

The first offence occurred on the night of 30 October 1997 in Kirribilli. The respondent and two accomplices physically assaulted a man, forcibly restrained him, escorted him against his will to a hotel, punched him repeatedly, produced knives, took his wallet, and threatened to kill his family. This effective kidnapping and armed robbery formed the basis of the aggravated robbery charge, with a further robbery and a larceny taken into account on a Form 1.

The second offence occurred on 9 January 1999 in Campsie. The respondent pressed an extendable baton against a 17-year-old's neck and demanded his possessions. An accomplice then searched and robbed the victim in the presence of the victim's friends. The respondent had also given false names and birth dates to police on arrest in relation to both matters.

  • Whether the non-parole periods of 12 months were manifestly inadequate given the objective seriousness of the offences
  • Whether concurrent sentences were appropriate given the separate nature and timing of the offences
  • What sentencing adjustment, if any, was appropriate given the respondent was facing double jeopardy on a Crown appeal

Decision

The Court of Criminal Appeal found the original sentences to be manifestly inadequate, with the 12-month non-parole periods described as "so obviously inadequate that this court has no option but to interfere." Hulme J found that the aggravated robbery offence alone merited a head sentence at least equal to, if not higher than, the four to five year range indicated by guideline authority, with a non-parole period more closely aligned with the usual proportion.

The Court also found that the sentencing judge had erred in imposing fully concurrent sentences. Given the separation in time and nature of the two offences, at least partly cumulative sentences were required, though totality remained a relevant consideration. The respondent's subjective circumstances, including his father's death, subsequent depression and heroin use, employment in custody, and evidence of rehabilitation, were acknowledged but did not overcome the objective gravity of the conduct.

In resentencing, the Court applied the well-established principle that a Crown appeal should produce either the minimum sentence that should have been imposed below, or something less, in recognition of the respondent facing sentencing jeopardy for a second time. A special circumstances finding by the sentencing judge was not challenged and permitted a departure from the standard ratio between non-parole period and full term on the second sentence.

Orders Made

  • Sentences imposed by Mahoney DCJ quashed
  • For the robbery in company charge: fixed term of 12 months imprisonment commencing 22 September 2000
  • For the aggravated robbery charge (taking into account Form 1 matters): 5 years imprisonment with a non-parole period of 2 years, commencing 22 September 2001

Key Takeaways

  • The Court of Criminal Appeal confirmed that non-parole periods of 12 months for serious armed robberies involving violence, threats, weapons, and deprivation of liberty were manifestly inadequate and warranted appellate intervention.
  • Where offences are separated in time and character, a sentencing court is generally required to impose at least partly cumulative sentences, with totality then applied to moderate any excessive aggregate.
  • On a Crown appeal, the Court of Criminal Appeal applies a recognised practice of imposing the minimum sentence that should have been imposed, or less, to account for the double jeopardy faced by a respondent being resentenced.
  • Significant mitigating factors, including evidence of drug dependency, depression, rehabilitation, and good custodial conduct, did not displace the need for sentences proportionate to the objective gravity of aggravated robbery involving weapons, physical violence, and threats to kill.
  • A special circumstances finding, which permits a lower ratio between non-parole period and head sentence, can be carried forward on appeal if unchallenged by either party.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 95(1) (aggravated robbery) and s 97(1) (robbery in company)

Cases:
- R v Henry (guideline judgment on robbery sentencing, referenced in the judgment text)