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29
Court of Criminal Appeal 29 April 2005

Regina v Said El Masri

[2005] NSWCCA 167

Assault & violence
SENTENCING

Citation: Regina v Said El Masri [2005] NSWCCA 167
Court: New South Wales Court of Criminal Appeal
Date: 29 April 2005
Judge(s): Hunt AJA, Hulme J, Johnson J

Background

The applicant was charged following an incident at a public toilet in Belmore on 24 November 2002. He was placed on trial in the Parramatta District Court on two counts arising from the same incident: assault with intent to rob in circumstances of aggravation, and the lesser offence of assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900.

The applicant pleaded not guilty to the more serious count but guilty to the assault charge. The Crown declined to accept the plea to the lesser count alone, and the matter proceeded to trial. On 9 June 2004, the jury acquitted the applicant on the aggravated robbery count. He was then sentenced on the assault charge, to which he had maintained his guilty plea throughout.

Acting Judge Shillington QC sentenced the applicant to a community service order of 300 hours. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal, arguing it was manifestly excessive.

  • Whether the sentencing judge made adequate allowance for the fact that the assault offence could have been, and appropriately would have been, disposed of summarily in the Local Court rather than on indictment in the District Court.
  • Whether sentencing statistics for s 59(1) offences dealt with in the Local Court were relevant to the exercise of the sentencing discretion in the District Court.
  • Whether the community service order of 300 hours was manifestly excessive in all the circumstances.

Decision

Johnson J (with whom Hunt AJA and Hulme J agreed) found the 300-hour community service order manifestly excessive. A central concern was that the sentencing judge made no reference in his remarks on sentence to the fact that the assault offence was one which could and, in the circumstances, should have been dealt with summarily in the Local Court. This omission was treated as indicative of error, because a sentencing court dealing with a matter on indictment must, where summary disposal was both open and appropriate, moderate the sentence to reflect that reality.

The court considered the objective facts of the offence as found by the sentencing judge: a single punch to the side of the victim's head, described by investigating police as causing relatively minor injury, unplanned, and delivered following what the applicant perceived as provocation. The applicant's guilty plea had been entered at the earliest opportunity and he had experienced considerable delay in having the more serious charge resolved.

Sentencing statistics for s 59(1) offences in the Local Court were noted as a relevant consideration, informing the range of appropriate sentences for offences of this character that would ordinarily be dealt with summarily. Taking those factors together, the Court concluded that a substantially shorter community service order was warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; the 300-hour community service order imposed by the Parramatta District Court on 9 June 2004 was quashed.
  • A community service order of 100 hours substituted under s 8(1) of the Crimes (Sentencing Procedure) Act 1999.
  • The applicant directed to report to Bankstown Probation and Parole Office within seven days.

Key Takeaways

  • Where a charge could appropriately have been dealt with summarily in the Local Court, a sentencing court in the District Court must explicitly account for that factor and moderate the sentence accordingly; failure to do so may constitute error.
  • Sentencing statistics for s 59(1) assault offences dealt with in the Local Court are a relevant consideration when the offence is of a character that would ordinarily be disposed of summarily.
  • A conviction for assault occasioning actual bodily harm following acquittal on a more serious related charge does not, without more, justify a sentence at the higher end of the range available for the lesser offence.
  • In dismissing the higher sentence, the Court of Criminal Appeal reduced the community service order from 300 hours to 100 hours, reflecting the minor nature of the injury, the absence of planning, the delay in proceedings, and the early guilty plea.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal may substitute its own sentence where it finds a lesser sentence is warranted in law and should have been passed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 95(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8(1), 21A(2)(h), 86(1), 86(5)
- Criminal Procedure Act 1986 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- R v Crombie [1999] NSWCCA 297
- R v Majors (1991) 27 NSWLR 624
- R v Doan (2000) 50 NSWLR 115
- R v Sandford (1994) 72 A Crim R 160
- R v Griggs (1999) 109 A Crim R 484
- R v LPY (2002) 135 A Crim R 237
- R v Hanslow [2004] NSWCCA 163
- R v Depoma [2003] NSWCCA 382
- Re Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 137 A Crim R 196
- R v Salameh (1991) 55 A Crim R 384
- R v Bloomfield (1998) 44 NSWLR 734
- R v Vachalec (1981) 1 NSWLR 351