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Court of Criminal Appeal 10 September 2007

EL-KHEIR v REGINA

[2007] NSWCCA 280

Public order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE SEVERITY WHERE CUSTODIAL SENTENCE IMPOSED PLEA FOR SUSPENDED SENTENCE ALTERNATIVE SENTENCES

Citation: EL-KHEIR v REGINA [2007] NSWCCA 280
Court: NSW Court of Criminal Appeal
Date: 10 September 2007
Judge(s): Mason P, Adams J, Smart AJ

Background

The appellant pleaded guilty in the District Court to doing an act with intent to pervert the course of justice under s 313 of the Crimes Act 1900. The maximum penalty for that offence is four years imprisonment. The sentencing judge, Sides QC DCJ, imposed a sentence of one year and four months with a non-parole period of eight months.

The conduct at issue occurred in March 2005. The appellant's cousin was under police investigation for a series of armed robberies, with listening devices installed on relevant premises. The appellant arranged, through an intermediary, to have the charges against his cousin "fixed" before any charges were laid, expecting payment of between $6,000 and $7,000. He made multiple telephone calls to a contact called "Ray" and reassured his cousin over several days that the matter could be resolved. In the end, no money changed hands and the scheme came to nothing.

The appellant challenged his sentence in the Court of Criminal Appeal on four grounds: that the sentence was too severe given the agreed facts; that the sentencing judge gave inadequate consideration to a suspended sentence under s 12 of the Crimes Act 1900; that a co-offender with apparently greater criminality received a suspended sentence; and that insufficient weight was given to evidence that the appellant had been "big-noting" himself rather than genuinely operating as a fixer.

  • Whether the sentence of one year and four months was excessive given the agreed level of criminality
  • Whether the sentencing judge erred in declining to impose a suspended sentence under s 12, particularly where community service was unavailable to the appellant as a drug dependant
  • Whether the principle of sentencing parity required a result consistent with the suspended sentence received by a co-offender
  • Whether the sentencing judge gave adequate weight to the possibility that the appellant was boasting rather than genuinely acting as a fixer

Decision

The Court rejected the submission that the appellant's drug dependency, as a motivation for seeking money, provided meaningful mitigation. Mason P characterised this argument as a false dichotomy. The gravamen of the offence was professing to interfere with the criminal justice system in exchange for money, which strikes at the integrity of that system regardless of the offender's personal reasons for wanting payment.

On the question of a suspended sentence, the Court found no error. The sentencing judge had specifically considered and rejected that option, and the Court of Criminal Appeal agreed with his reasoning. The appellant's conduct went beyond mere preparation and constituted active steps directed at corrupting the processes of the criminal law.

The parity argument, comparing the appellant's sentence with that of his cousin's spouse who received a suspended sentence, was also dismissed. The Court noted that the co-offender had already served approximately six months and twenty days in pre-sentence custody, a period not far short of the appellant's non-parole period. Her circumstances, including the placement of a baby in the care of grandparents during her custody, were also distinguishable.

The "big-noting" ground received short attention and was not pressed in oral submissions. The Court observed that whether the appellant was entirely candid with the person he was purporting to assist was ultimately beside the point. He had taken active steps that would have conveyed to his cousin a genuine intent to corrupt the process, and the sentencing judge had specifically noted the probation and parole report's treatment of this issue.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A submission that criminal conduct was motivated by drug dependency, rather than an intent to undermine the justice system, does not automatically reduce the objective seriousness of an offence directed at corrupting judicial processes.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's reasoned rejection of a suspended sentence will not be disturbed on appeal where the judge has genuinely considered and engaged with that option.
  • The parity principle does not compel identical outcomes for co-offenders where the comparison offender's circumstances differ materially, including through substantial pre-sentence custody.
  • Under s 313 of the Crimes Act 1900, conduct that falls within the heart of perverting the course of justice need not be completed or result in any actual payment to attract a full custodial sentence.
  • Sufficient active steps toward the corrupt arrangement existed here even though the scheme never came to fruition and no money was paid, supporting the sentencing court's assessment of objective gravity.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 313 (doing an act with intent to pervert the course of justice; maximum penalty four years)
- Crimes Act 1900 (NSW), s 12 (suspended sentences)