Citation: Hesham ELSOBKY v REGINA [2006] NSWCCA 168
Court: NSW Court of Criminal Appeal
Date: 26 May 2006
Judge(s): James J, Hidden J, Hoeben J
Background
The applicant pleaded guilty in the District Court to being an accessory after the fact to an armed robbery. The victim of that robbery was his own wife, who suffered lacerations during the attack. The perpetrator, a young woman with whom the applicant had been having an intimate relationship, robbed the wife at knifepoint outside a church in Liverpool before fleeing to a car the applicant was driving. Items from the victim's handbag were later found concealed in the boot of that car.
Nield DCJ sentenced the applicant to two and a half years' imprisonment, with a non-parole period of one year and three months, commencing 10 May 2005. The judge applied a fifteen percent discount for the guilty plea, which had been entered at a late stage of proceedings, and found special circumstances justifying a reduced non-parole period because of the hardship imprisonment would cause the applicant's family.
The applicant appeared unrepresented before the Court of Criminal Appeal, relying on written submissions and oral argument. His wife was seriously disabled following a motor vehicle accident, one of his three children had significant ongoing medical needs, and he had been the family's primary carer.
Legal Issues
- Whether the sentencing judge gave appropriate weight to the applicant's guilty plea, and whether a greater discount (up to twenty-five percent) was warranted
- Whether adequate allowance was made for the hardship the applicant's imprisonment would cause to his disabled wife and children
- Whether the overall sentence of two and a half years was manifestly excessive
Decision
Guilty plea discount: The Court confirmed that the discount for a guilty plea is a matter firmly within the sentencing judge's discretion, depending on the circumstances of each case and the timing of the plea. Because the plea was entered at a very late stage of proceedings, a discount of fifteen percent fell comfortably within the proper exercise of that discretion. The applicant's assertion that he had been promised a non-custodial sentence was not supported by any evidence and was regarded as inherently improbable.
Family hardship: The sentencing judge had accepted that the family would "suffer greatly" from the imprisonment, and had already responded to that finding by significantly reducing the non-parole period. The statutory proportion of seventy-five percent would have produced a non-parole period of approximately one year and ten months; the judge reduced it by seven and a half months to one year and three months. The Court held that family hardship does not ordinarily reduce a sentence, and only in exceptional cases does it do so. The circumstances here, though genuinely difficult, did not reach that threshold.
Manifest excess: The Court rejected the submission that the sentence was excessive. The offence carries a maximum of fourteen years' imprisonment. Two aggravating factors were particularly noted: the applicant had participated in the robbery of his own disabled wife, and he was subject to a bond (a form of conditional liberty) at the time of the offence. Courts have consistently treated the commission of offences while on conditional liberty as an aggravating factor. A full-time custodial sentence of the length imposed was plainly open to the sentencing judge.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that a guilty plea discount is highly fact-specific and discretionary; a late plea attracting only fifteen percent, rather than the maximum of twenty-five percent, was held to be entirely appropriate.
- Family hardship caused by an offender's imprisonment is, in the words of the Court, "the tragic but inevitable consequence of almost every conviction." Sentencing courts will reduce a sentence on this basis only in exceptional cases.
- Where a sentencing judge does take family hardship into account, adjusting the non-parole period to reflect special circumstances (rather than reducing the head sentence) represents a legitimate and accepted sentencing response.
- Committing an offence while subject to conditional liberty, such as a bond, recognisance, bail, or parole, is a well-established aggravating factor that sentencing courts treat seriously.
- No error was identified in the sentencing judge's approach, and the length of sentence for an offence carrying a fourteen-year maximum was within the proper exercise of judicial discretion.
Legislation and Cases Referenced
Cases:
- R v Thomson & Houlton (2000) 49 NSWLR 383 (guidelines for guilty plea discounts)
- R v Edwards (1996) 90 A Crim R 510 (family hardship as a sentencing consideration)
- R v Wirth (1976) 14 SASR 291 (hardship to family and friends as an inevitable consequence of imprisonment)
- R v Readman (1990) 47 A Crim R 181 (aggravation arising from offending while on conditional liberty)
Legislation: No specific legislation was identified in the provided text beyond a reference to the statutory non-parole period proportion (seventy-five percent) applicable under NSW sentencing law.