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Court of Criminal Appeal 5 November 2008

David EID v R

[2008] NSWCCA 255

Fraud & dishonestyTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE PLEAS OF GUILTY ARMED ROBBERY KNOWINGLY DEAL IN PROCEEDS OF CRIME WHETHER MANIFESTLY EXCESSIVE

Citation: David EID v R [2008] NSWCCA 255
Court: New South Wales Court of Criminal Appeal
Date: 5 November 2008
Judge(s): McClellan CJ at CL, Simpson J, McCallum J

Background

The applicant pleaded guilty in the District Court to three counts: armed robbery, knowingly dealing in proceeds of crime, and conducting financial dealings to avoid reporting requirements. Two additional offences were taken into account on a Form 1. The offences arose from a connected chain of criminal conduct beginning with a brazen armed robbery at Mascot in February 2006, in which the applicant pointed a revolver at a security officer and made off with almost $2 million in cash.

In the days following the robbery, the applicant used the stolen funds to purchase luxury motor vehicles, paying large sums in cash. When prompted by an AUSTRAC currency declaration at an auction, he and his relatives left and purchased eight separate bank cheques, each just under the $10,000 reporting threshold, in an attempt to conceal the source of the funds.

Williams DCJ sentenced the applicant to 10 years and 4 months on the principal count, with a non-parole period of 6 years and 6 months. The secondary sentences were structured to fall within the non-parole period. The applicant sought leave to appeal, contending the sentence was manifestly excessive and that the sentencing judge had erred in several respects.

  • Whether the sentencing judge impermissibly treated the presence of a firearm as an aggravating factor when it was already an element of the offence of armed robbery
  • Whether the judge failed to sentence in conformity with the mandatory ratio between non-parole period and total term under s 44(1) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the overall sentence was manifestly excessive, having regard to objective seriousness, subjective circumstances, guilty pleas, and applicable sentencing guidelines

Decision

Firearm as aggravating factor: The Court accepted that there was a question about whether the sentencing judge had treated the firearm as an aggravating factor when it was an element of the offence itself (which would be double-counting). However, the Court found that, reading the remarks on sentence as a whole, the judge had not fallen into that error in any meaningful way that affected the outcome.

Section 44(1) non-compliance: The Court identified that the original sentence formulation did not strictly comply with s 44(1) of the Crimes (Sentencing Procedure) Act 1999, which requires the balance of term to bear a proper mathematical relationship to the non-parole period where special circumstances are found. The Court characterised this as a technical error only, not a substantive error that warranted interference with the underlying sentence. To remedy the deficiency, the Court re-formulated the sentence to comply with s 44(1) while leaving the non-parole period and effective total unchanged.

Manifest excess: The Court rejected the submission that the sentence was manifestly excessive. It noted that a starting point of 13 years (before the 20% discount for guilty pleas) represented precisely the mid-point of a maximum 25-year penalty, which the sentencing judge had found was appropriate given the large amount stolen and the significant planning involved. The Court observed that such a finding was, if anything, generous to the applicant. Comparison with the standard non-parole period for the analogous (but distinct) offence under s 98 of the Crimes Act 1900 was given only limited weight, as Parliament had not prescribed a standard non-parole period for the s 97 offence.

Orders Made

  • Leave granted to appeal
  • Appeal dismissed
  • The sentence on the first count re-formulated: non-parole period of 6 years and 6 months commencing 8 August 2006 and expiring 7 February 2013, with a balance of term of 3 years and 10 months expiring 7 December 2016

Key Takeaways

  • A failure to comply with the mandatory sentencing ratio in s 44(1) of the Crimes (Sentencing Procedure) Act 1999 is a technical error. The Court of Criminal Appeal confirmed it can re-formulate the sentence to achieve compliance without disturbing the underlying sentence where no substantive error is shown.
  • In dismissing the manifest excess ground, the Court emphasised that a non-parole period must be assessed by reference to the maximum penalty Parliament has prescribed, and that a mid-range starting point for a very large-scale armed robbery was not excessive.
  • Where an element of the offence (here, the presence of a weapon) is also a statutory aggravating factor, courts must avoid double-counting. The Court of Criminal Appeal confirmed this principle but found no operative double-counting on the facts.
  • The standard non-parole period for a different but related offence under s 98 of the Crimes Act 1900 carries limited relevance when sentencing for a s 97 offence, given Parliament's choice not to legislate a standard non-parole period for that provision.
  • Subjective factors including heroin dependency, family psychiatric history, favourable prison conduct, and cooperation were considered but did not displace the objective gravity of an armed robbery netting almost $2 million, carried out with planning and involving a firearm pointed at a victim.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1), 44(2), Pt 3 Div 3, Pt 4 Div 1A
- Crimes Act 1900 (NSW), ss 97(2), 98, 193B(1)
- Financial Transaction Reports Act 1988 (Cth), s 31

Cases
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (armed robbery guideline judgment)
- R v Way [2004] NSWCCA 131; 60 NSWLR 168 (standard non-parole periods)
- Huynh v R [2006] NSWCCA 224
- Bain v R [2006] NSWCCA 79; 161 A Crim R 36