Citation: Regina v Rahme; Regina v El-Hayek [2004] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 7 July 2004
Judge(s): Dowd J, Hislop J, Smart AJ (judgment of Smart AJ)
Background
Two co-offenders sought leave to appeal against sentences imposed in the District Court for a series of serious offences committed in July 2000. The offences included armed robbery with a firearm, sexual intercourse with minors, supply of methylamphetamine, and, in one case, acting to influence a witness. Both offenders had been sentenced at different times by two separate District Court judges, producing accumulated sentences of considerable length.
The first appellant had received sentences from two judges across multiple indictments. When combined, those sentences produced an effective total imprisonment term of approximately 11 years and 5 months, with a non-parole period of approximately 10 years and 5 months. The second appellant faced an aggregate term of 8 years 9 months and 16 days, with an aggregate non-parole period of 7 years 3 months and 16 days.
The central concern raised by both appeals was not the head sentences themselves but the structure of the non-parole periods, which left only a very short time on supervised parole relative to the total time to be served.
Legal Issues
- Whether the totality principle was properly applied when setting non-parole periods across accumulated sentences
- Whether the aggregate non-parole periods were excessive relative to the aggregate head sentences
- Whether special circumstances existed, within the meaning of sentencing principles, to justify departing from the standard 75 per cent ratio between non-parole period and head sentence
- Whether the periods on parole were adequate to serve the rehabilitative purposes of parole supervision for offenders serving long terms
Decision
The Court examined the relationship between the accumulated non-parole periods and the total head sentences for each offender. In the case of the first appellant, the non-parole period amounted to approximately 91 per cent of the total head sentence, leaving a parole period of only around 11 months. The Court found this was manifestly inadequate, particularly given the length of the overall sentence.
The Court applied the totality principle not only to the head sentences but also to the non-parole periods. It held that when sentences are accumulated, the overall structure must be reviewed as a whole to ensure the ratio of non-parole period to total sentence remains appropriate. A very short parole period at the end of a long sentence was found to be inconsistent with the purposes that parole supervision is intended to serve.
For the first appellant, the Court restructured the sentences to produce a non-parole period of 8 years 6 months against an effective head sentence of approximately 11 years and 5 months. For the second appellant, the Court found special circumstances existed based on his age, prior good character, first experience of full-time custody, and good prospects of rehabilitation. The Court also noted that his serious offending was confined to a short period of six days rather than sustained criminality. After more than six years in custody, the Court reasoned, an extended period of supervised parole would be necessary to consolidate rehabilitation and manage the risks of reoffending.
The Court reduced the second appellant's aggregate non-parole period to 6 years and 6 months, representing approximately 74 per cent of the aggregate sentence. The head sentences and their accumulation were not disturbed for either offender.
Orders Made
Rahme:
- Leave to appeal against sentences imposed by Solomon DCJ granted
- Appeal allowed; sentences imposed by Solomon DCJ quashed
- New sentences imposed across the relevant counts, restructuring non-parole periods to produce an aggregate non-parole period of 8 years 6 months against the total term
El-Hayek:
- Leave to appeal against sentences imposed by Solomon DCJ granted
- Appeal allowed; sentences imposed by Solomon DCJ quashed
- In substitution:
- Armed robbery with a dangerous weapon: 7 years imprisonment from 28 October 2003, with a non-parole period of 4 years ending 27 October 2007
- Sexual intercourse with a person over 10 and under 16 (with Form 1 matters taken into account): 2 years 6 months from 11 January 2007, with a non-parole period of 18 months ending 10 July 2008
- Aggregate result: imprisonment of 8 years 9 months and 16 days with an aggregate non-parole period of 6 years 6 months
Key Takeaways
- The totality principle applies not only to the overall length of accumulated head sentences but also to the structure of aggregate non-parole periods, requiring courts to assess whether the resulting parole period is adequate in light of the total time to be served.
- Where accumulated sentences produce an aggregate non-parole period that is disproportionately close to the total head sentence, the resulting parole period may be so short as to defeat the rehabilitative and supervisory purposes of parole.
- Special circumstances justifying a non-parole period below the standard 75 per cent ratio may arise from a combination of factors, including youth, prior good character, a first experience of full-time custody, good prospects of rehabilitation, and the concentrated rather than prolonged nature of the offending.
- After a long period of imprisonment, an extended period of parole supervision is particularly important to assist reintegration, reduce the risk of returning to substance abuse, and prevent renewed association with undesirable influences.
- In restructuring sentences, the Court of Criminal Appeal left head sentences and their accumulation undisturbed, intervening only to correct the non-parole period structure.
Legislation and Cases Referenced
Legislation: None cited in the judgment.
Cases: None cited in the judgment.