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Court of Criminal Appeal 12 February 2009

EL-ARJA v REGINA

[2009] NSWCCA 8

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE GROUNDS FOR INTERFERENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE CONSIDERATION OF SENTENCING GUIDELINES CONSIDERATION OF RELEVANT PRINCIPLES

Citation: EL-ARJA v REGINA [2009] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 12 February 2009
Judges: McClellan CJ at CL, Hall J, Harrison J

Background

The appellant pleaded guilty in the Local Court to two counts of robbery whilst armed with an offensive weapon under s 97(1) of the Crimes Act 1900, each carrying a maximum penalty of 20 years' imprisonment. Both offences occurred on 19 February 2007 and involved knife-point robberies on Sydney trains, targeting individual victims. A third robbery in company, committed two days earlier on a Bankstown-bound train, was taken into account on a Form 1 (a form that allows a court to take additional charges into account without recording separate convictions).

The District Court sentenced the appellant to a fixed term of two years for the first count and, accumulated one year later, a term of five years with a three-year non-parole period for the second count. This produced a total effective sentence of six years with an effective non-parole period of four years, commencing from the date of arrest on 15 March 2007.

The appellant sought leave to appeal against the sentences imposed by Marien DCJ, arguing they were excessive and inadequately reflected a finding of special circumstances.

  • Whether the sentence imposed for the second count was manifestly excessive because the sentencing judge gave undue weight to the Form 1 offence taken into account.
  • Whether the sentence insufficiently reflected the sentencing judge's finding of special circumstances, in particular whether the ratio between the non-parole period and the head sentence was too high.

Decision

On the first ground, the Court found no error in the weight given to the Form 1 offence. The sentencing judge was entitled to treat the offences as part of a serious course of criminal conduct, noting that within a matter of days the appellant had participated in three separate armed robberies on public transport against vulnerable individual victims. The Court was not persuaded that the resulting sentence was manifestly excessive.

On the second ground, the Court examined how the finding of special circumstances had been translated into the accumulated sentence structure. The sentencing judge had expressly made a finding of special circumstances, which ordinarily justifies a reduction in the proportion of the sentence served before parole eligibility below the statutory ratio of 75 per cent. Hall J observed that, viewed across the total effective sentence, the ratio of non-parole period to head sentence was approximately 66 per cent, representing a meaningful reduction from the statutory norm and producing a non-parole period roughly six months shorter than would otherwise have applied.

The Court held that the second ground was, in substance, a challenge to an evaluative and discretionary judgment by the sentencing judge. Applying the well-established principle that appellate courts are slow to interfere with such assessments, the Court found no error that would justify intervention. Both grounds were rejected and the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A finding of special circumstances does not mandate any particular ratio between non-parole period and head sentence; it requires the sentencing court to exercise judgment, and that judgment attracts significant appellate restraint.
  • Where a sentencing judge accumulates sentences for related offences, the special circumstances finding may be reflected across the total effective sentence structure rather than in a single component sentence in isolation.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that offences forming part of a course of criminal conduct can properly attract cumulative sentences, particularly where each offence is independently serious.
  • The use of a knife in a public place against vulnerable victims, as part of a short series of targeted train robberies, was treated as warranting a significant non-parole period in the interests of both community protection and deterrence.
  • No error was established merely because the overall sentence was a severe one; manifest excess requires more than a finding that a different judge might have sentenced more leniently.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery whilst armed with an offensive weapon)

Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- Regina v DBN [2005] NSWCCA 435
- Regina v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Regina v Simpson [2001] NSWCCA 534