Citation: AYOUB, Omran v R; EL MASRI, Ali v R [2010] NSWCCA 196
Court: NSW Court of Criminal Appeal
Date: 6 September 2010
Judge(s): Hodgson JA; Rothman J; Barr AJ
Background
Two co-appellants were convicted after a trial in the District Court of detaining a person for advantage in circumstances of aggravation, contrary to s 86(2)(a) of the Crimes Act 1900. The aggravating circumstance was that the offence was committed in company. The victim, who had purchased and subsequently sold a travel agency, was detained and coerced into transferring substantial money and other assets to the offenders.
Judge Neilson of the District Court sentenced each appellant to a total term of seven years' imprisonment, with a non-parole period of five years and three months. The commencement dates differed by two days to account for pre-sentence custody. Neither appellant had pleaded guilty, and the sentencing judge found no evidence of remorse.
Both appellants sought leave to appeal their sentences, relying on substantially identical grounds. The maximum penalty for the offence was twenty years' imprisonment.
Legal Issues
- Whether the sentencing judge erred by placing undue emphasis on the length of detention when assessing objective seriousness, particularly having already found the offending fell below the mid-range of seriousness
- Whether the sentencing judge applied an incorrect principle by treating a longer period of detention as necessarily increasing the severity of the sentence
- Whether the sentences were manifestly excessive
- Whether the sentencing judge erred by failing to find special circumstances justifying a greater than standard ratio between the non-parole period and the head sentence
- Whether the sentencing judge gave insufficient reasons for arriving at the head sentence and non-parole period
- Whether insufficient weight was given to available mitigating factors
Decision
The Court of Criminal Appeal granted leave to appeal in both matters but dismissed all grounds. The Court found no error in the sentencing judge's treatment of the length and circumstances of detention as relevant factors in assessing objective seriousness. Although the sentencing judge had found the detention not to have been particularly onerous in a physical sense, Hodgson JA observed that this assessment had to be understood in the context of the detention being sufficiently coercive to cause the victim to transfer substantial assets. The period and circumstances of detention were therefore properly treated as relevant considerations.
On the ground concerning multi-tier sentencing, the Court rejected the contention that the sentencing judge had engaged in impermissible double counting by separately reciting factors relevant to objective seriousness. A structured recitation of those factors does not, of itself, constitute multi-tier sentencing.
The Court found no error in the failure to find special circumstances, noting that no application for such a finding had been made at first instance. Regarding the reasons ground, the Court was satisfied that the sentencing remarks disclosed an adequate basis for the sentences imposed.
On manifest excess, the Court accepted that the sentences may have been higher than another judge might legitimately have imposed, but concluded they were within the range available to the sentencing judge. Applying the principle from House v The King and the High Court's guidance in Markarian v R, the Court found no identifiable error and no outcome that was manifestly unreasonable or unfair. The process of intuitive synthesis, which requires balancing competing sentencing objectives, did not require slavish adherence to outcomes in comparable cases.
Orders Made
- In each matter, leave to appeal granted
- In each matter, the appeal dismissed
Key Takeaways
- A sentencing judge's structured recitation of factors relevant to objective seriousness does not constitute impermissible multi-tier sentencing, provided those factors are not counted twice in the actual calculation of the sentence.
- The length and circumstances of a victim's detention remain relevant considerations in assessing objective seriousness for an aggravated detention offence, even where the sentencing court has described the physical conditions of detention as not particularly onerous.
- Failure to find special circumstances is not an error on appeal where the appellant made no application for such a finding at the sentencing hearing.
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a sentence need not be the lowest available within the range; it is sufficient that it falls within the range open to the sentencing judge.
- Sentencing courts retain considerable flexibility in fixing appropriate sentences, and appellate intervention requires identification of a specific error in the sentencing process or an outcome that is manifestly unreasonable, not merely one that a different judge might not have reached.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 86(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 24(2)
Cases:
- Andrews v Law Society of British Columbia [1989] 1 SCR 143
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- HAN, Zhi Qiang v R [2009] NSWCCA 300
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Jimmy v R [2010] NSWCCA 60
- Johnson v R [2004] HCA 15; (2004) 78 ALJR 616
- Lowe v R [1984] HCA 46; (1984) 154 CLR 606
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555
- R v F [2002] NSWCCA 320; (2002) 132 A Crim R 308
- R v Fernando (1992) 76 A Crim R 58
- R v Tiddy [1969] SASR 575