Citation: Regina v Elkaddour [2001] NSWCCA 302
Court: New South Wales Court of Criminal Appeal
Date: 6 August 2001
Judge(s): Dowd J, Smart AJ
Background
The applicant was convicted in the District Court of armed robbery with an offensive weapon and sentenced by Nield DCJ to six years imprisonment with a non-parole period of three and a half years, commencing 18 November 1999. The offence occurred in the early hours of 15 March 1998, when the applicant gained entry to a victim's home under a false pretext, produced a knife, threatened to kill the victim, bound him with tape, and demanded money, jewellery, and electronic goods. The victim's family, including a two-year-old child, was asleep in the home at the time.
The applicant's mother subsequently found a knife and screwdrivers in a bag he had brought home, handed them to police, and was prepared to give evidence at trial. The applicant entered a guilty plea on the second day of trial, after the trial judge ruled his mother's evidence was admissible. He appeared in person before the Court of Criminal Appeal seeking leave to appeal against the severity of his sentence.
Legal Issues
- Whether the applicant received insufficient credit for his guilty plea, given the timing of that plea and his claimed inability to recall the offence
- Whether the sentence should have been backdated to September 1998, to run concurrently with a sentence for an earlier armed robbery
- Whether sentencing delay between the guilty plea in March 1999 and sentencing in November 1999 caused the applicant to serve an unjustly extended term
- Whether the overall sentence of six years was excessive in the circumstances
Decision
The Court rejected the argument that the applicant deserved a greater discount for his guilty plea. The plea was entered only after the Crown's case was cemented by the admissibility ruling on his mother's evidence. Smart AJ noted that the sentencing judge had already reduced the sentence to reflect the time and cost savings from the plea, as well as the fact that the mother was spared the ordeal of giving evidence. The applicant's assertion that he had never denied involvement was contradicted by his record of interview, in which he relied on alibis.
The Court also rejected the backdating argument. Although an earlier armed robbery sentence commenced in September 1998, the offence the subject of this appeal occurred on 15 March 1998, at a time when the applicant was on bail for that very earlier armed robbery. Smart AJ noted that the sentencing judge would have been entitled to order the sentences to run consecutively from September 2001. Instead, by overlapping the sentences, the judge had conferred an advantage of just under two years on the applicant.
On the question of delay, the Court found that the gap between plea and sentence was largely attributable to difficulties in obtaining a psychologist's report and to the non-availability of counsel, rather than to any systemic failure warranting relief. Taken in the round, Smart AJ described the sentence as "moderate" rather than excessive, having regard to the gravity of the offending, the applicant's criminal record (which included serious assaults, prior robbery and dishonesty offences, and another armed robbery), and the fact that the offence was committed while on bail.
Orders Made
- Leave to appeal refused
Key Takeaways
- A guilty plea entered only after an adverse evidentiary ruling cements the Crown's case will attract limited additional discount beyond what the sentencing court has already allowed.
- Where sentencing delay results from the defendant's own difficulty obtaining reports or from counsel availability, that delay does not of itself entitle the applicant to sentencing relief.
- Overlapping sentences, when they confer a tangible benefit on the offender, weigh against any later complaint that the overall sentence is excessive.
- Committing an armed robbery while on bail for another armed robbery is an aggravating feature that courts will treat as significantly relevant to the overall assessment of criminality.
- In dismissing the application, the Court of Criminal Appeal confirmed that a six-year term with a three-and-a-half-year non-parole period for a serious home-invasion armed robbery, against an offender with a substantial record, was within the moderate range rather than excessive.
Legislation and Cases Referenced
Legislation: None cited
Cases: None cited