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Court of Criminal Appeal 13 November 2009

HEJAZI v THE QUEEN

[2009] NSWCCA 282

Also reported as (2009) 217 A Crim R 151
Theft & property
CRIMINAL LAW SENTENCING WHETHER ELEMENT OF OFFENCE LEVEL OF MORAL CULPABILITY CRIMINAL LAW SENTENCING

Citation: Hejazi v The Queen [2009] NSWCCA 282
Court: Court of Criminal Appeal, New South Wales
Date: 13 November 2009
Judge(s): Basten JA, Howie J, Hislop J

Background

The applicant was sentenced in the District Court at Parramatta on two counts of breaking and entering a dwelling house with intent to steal, contrary to s 112(1) of the Crimes Act 1900 (NSW). The first offence involved ransacking an empty home in Revesby, with jewellery and electronics taken. The second offence, committed roughly three days later, was interrupted when two female occupants returned to their Bankstown home and disturbed the applicant mid-burglary.

The sentencing judge (Ashford DCJ) imposed a fixed term of 18 months for the first offence, and a three-year sentence with a two-year non-parole period for the second, with the sentences partially accumulated. Relevant subjective circumstances included the applicant's drug use, the fact that he was on parole at the time, and a significant prior criminal record.

The applicant sought leave to appeal against the severity of both sentences, raising three grounds: the improper use of "financial gain" as an aggravating factor, the relationship between the non-parole period and balance of term under the accumulated sentences, and manifest excess.

  • Whether the sentencing judge erred by treating "financial gain" as an aggravating circumstance under s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 (NSW), given that break, enter and steal offences are already oriented toward financial benefit
  • Whether the balance of term in the second sentence was an appropriate proportion of the non-parole period, both individually and when viewed against the aggregate of the two sentences
  • Whether the overall sentences were manifestly excessive, including whether it was necessary to account for the fact that the offences could have been prosecuted in the Local Court

Decision

Financial gain as an aggravating factor: The Court held that "financial gain" is not a necessary element of the offence of breaking and entering with intent to steal. While such offences are frequently committed for personal financial gain, other motivations are conceivable. Accordingly, noting financial gain as a feature of particular moral culpability did not constitute prohibited double-counting. The Court cautioned against placing too much weight on how sentencing judges label particular considerations, emphasising that the real question is whether a factor has been counted twice, once as an element of the offence and again as an aggravating circumstance.

Non-parole period and special circumstances: The Court confirmed the established practice of examining the relationship between the effective or aggregate non-parole period and the balance of term across accumulated sentences, not just within each individual sentence. A judge may need to find special circumstances and reduce a non-parole period to ensure a sufficient period of supervision on parole. Ashford DCJ had in fact found special circumstances and reduced the non-parole period on the second offence accordingly. The Court noted that, given the applicant's record and parole status at the time of the offences, a higher effective non-parole period would have been justifiable.

Manifest excess: The Court was not persuaded that the sentences were manifestly excessive. The appeal was otherwise dismissed, with the sole correction being the absence of an express order directing the applicant's release on parole at the expiration of the non-parole period for the second sentence, a formal omission under s 50(1) of the Crimes (Sentencing Procedure) Act.

Orders Made

  • Leave to appeal granted in respect of each sentence imposed by Ashford DCJ on 1 December 2008
  • In relation to the second sentence, the applicant be released on parole at the expiration of the non-parole period
  • Otherwise, the appeal dismissed

Key Takeaways

  • "Financial gain" under s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 (NSW) can be applied as an aggravating factor for break, enter and steal offences, because financial gain is not a necessary element of the offence, even though it is a common motive.
  • The prohibition on double-counting focuses on whether a factor has been used both as an element of the offence and as a separate aggravating circumstance, not on whether the factor commonly accompanies the offending conduct.
  • Where sentences are accumulated, the sentencing court must consider the effective aggregate non-parole period relative to the total balance of term, not merely the proportions within each individual sentence, to ensure adequate parole supervision.
  • Under the approach confirmed in this decision, a finding of special circumstances may be warranted to adjust the non-parole period on a later sentence so that the overall structure remains appropriate.
  • No error was established in the overall sentencing exercise; the Court of Criminal Appeal corrected only the formal omission of a parole direction required by s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 50
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Sch 1 [5]

Cases:
- Cicciarello v R [2009] NSWCCA 272
- Elyard v Regina [2006] NSWCCA 43
- R v Simpson (1992) 61 A Crim R 58
- Re Attorney-General's Application [No 1]; R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327
- Regina v El Masri [2005] NSWCCA 167