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Court of Criminal Appeal 26 November 2004

Regina v Eddie AZZI

[2004] NSWCCA 398

Sexual offences
CRIMINAL LAW INDECENT ASSAULT (4) CHALLENGE TO STRUCTURE OF SENTENCES

Citation: Regina v Eddie AZZI [2004] NSWCCA 398
Court: NSW Court of Criminal Appeal
Date: 26 November 2004
Judge(s): Dunford J, Simpson J, Hidden J (judgment of Hidden J)

Background

The applicant was the owner and operator of a well-known hair salon in central Sydney. Over a period of approximately twenty months between October 1999 and mid-2001, he committed a series of sexual offences against four adult female clients at his salon. The offences included locking victims inside the premises, exposing himself, and in one case attempting sexual intercourse without consent.

The applicant pleaded guilty in the District Court to one charge of attempted sexual intercourse without consent and four charges of indecent assault. Two further acts of indecency were taken into account on a Form 1 (a procedural mechanism allowing additional charges to be considered at sentencing without separate conviction). Sentencing Judge Steward ADCJ imposed concurrent fixed terms of two years for each indecent assault, with a wholly cumulative four-year term (two-year non-parole period) for the attempted sexual intercourse charge, producing an aggregate sentence of six years with a four-year non-parole period.

The applicant sought leave to appeal against those sentences, arguing the sentencing judge made errors of fact and erred in how the sentences were structured.

  • Whether the sentencing judge made findings of fact that went beyond the agreed facts or were otherwise unsupported, potentially treating uncharged conduct as an aggravating factor in a manner precluded by the rule in De Simoni
  • Whether the sentencing judge erred in structuring the sentences cumulatively rather than concurrently, particularly for the two offences arising from the same incident involving the one complainant
  • Whether the aggregate sentence of six years was manifestly excessive having regard to the totality of the applicant's criminality

Decision

The Court granted leave to appeal (noting the application was several months out of time, with an extension granted by consent) but dismissed the appeal on all grounds.

On the factual challenge, Hidden J examined the sentencing judge's remarks carefully. The sentencing judge had drawn inferences from the agreed facts, including that victims did not feel free to leave while the offences were in progress, noting that the salon doors were locked during several incidents and the applicant physically positioned himself between victims and exits. Hidden J found these inferences were legitimately open on the agreed facts and did not amount to findings beyond the evidence or impermissible reliance on uncharged conduct.

On the question of sentence structure, the Court accepted that the sentences could have been arranged differently, for example by passing concurrent sentences for the two offences arising from the same incident and accumulating the balance. However, Hidden J noted that any such restructuring would have produced the same aggregate result. Consistent with the policy in s 6(3) of the Criminal Appeal Act, the Court of Criminal Appeal does not intervene to restructure sentences at first instance where doing so would make no difference to the overall outcome.

On totality, Hidden J concluded the aggregate sentence of six years was within the proper discretionary range. The offences were serious, they were committed against four women over nearly two years, and the effective non-parole period of four years appropriately reflected retribution and deterrence while still extending the benefit of a finding of special circumstances to the applicant.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed it will not restructure sentences imposed at first instance where any restructuring would produce an identical aggregate outcome, consistently with the policy in s 6(3) of the Criminal Appeal Act.
  • Inferences drawn from agreed facts by a sentencing judge do not necessarily constitute findings that go beyond the evidence or amount to reliance on uncharged conduct contrary to the principle in De Simoni, provided those inferences are reasonably available on the material before the court.
  • An aggregate sentence of six years (with a four-year non-parole period) for one count of attempted sexual intercourse without consent and four counts of indecent assault, committed against four victims over approximately twenty months, was held to fall within the proper discretionary range even after discounts for guilty pleas and remorse.
  • Where two offences arise from the same incident, cumulation is not automatically precluded; what matters is whether the overall sentence reflects the totality of the criminality.
  • A finding of special circumstances, allowing a longer parole period relative to the non-parole period, can co-exist with sentences that still properly reflect the principles of retribution and deterrence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L, 61N(2), 61P
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- The Queen v De Simoni (1981) 147 CLR 383
- Pearce v The Queen (1998) 194 CLR 610