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Court of Criminal Appeal 10 February 2010

Eli EL-YOUSSEF v R

[2010] NSWCCA 4

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING INAPPROPRIATE USE OF FORM 1 NO OTHER MATTER OF PRINCIPLE.

Citation: Eli EL-YOUSSEF v R [2010] NSWCCA 4
Court: Court of Criminal Appeal, New South Wales
Date: 10 February 2010
Judge(s): Tobias JA, Hidden J, Howie J

Background

The applicant pleaded guilty in the District Court to two counts of robbery, one count of larceny from the person, and one count of robbery while armed with a dangerous weapon. The offences were committed over a period of roughly five weeks in late 2006 and involved a series of till-snatching incidents at retail premises, culminating in an armed bank robbery in which the applicant threatened a teller with a replica pistol and obtained nearly $9,500. A co-offender was involved in the bank robbery.

At the time of the offences, the applicant was on parole following earlier sentences for robbery in company and escape. His parole was revoked in November 2006. Hulme DCJ sentenced him in the District Court on 14 March 2008 to a total effective term of 11 years with an overall non-parole period of 8 years 3 months, the sentences running from the date the guilty pleas were entered.

Five additional offences, including a separate armed robbery in which the applicant threatened to shoot people at a service station with a rifle, were placed on a Form 1 and taken into account in relation to the most serious count. The applicant, unrepresented, sought leave to appeal against his sentence.

  • Whether the discount allowed for the guilty pleas was adequate
  • Whether the sentencing judge failed to give proper weight to the applicant's treatment in custody and conditions imposed by the Parole Board
  • Whether the sentencing judge relied improperly on the applicant's past record in setting the sentence
  • Whether the sentence was manifestly excessive
  • Whether the overall non-parole period should be reduced to allow earlier parole eligibility
  • Whether a serious offence (the armed service station robbery) had been inappropriately placed on a Form 1

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds. Howie J, with whom Tobias JA and Hidden J agreed, found no error in the exercise of the sentencing judge's discretion on any of the grounds raised.

On the guilty plea discount, the Court found the reduction was open on the facts and circumstances, including the applicant's criminal history and limited subjective matters. On the custody conditions complaint, the Court found there was no mitigation available in the applicant's custodial history or the conditions imposed by the Parole Board. The sentencing judge's reference to the prior record was found to be a proper exercise of discretion, reflecting the significance of general and specific deterrence given the nature and extent of the applicant's criminality.

On manifest excess, the Court characterised the sentence as appropriate in light of the applicant's record, the seriousness of the offending, his age, and his commission of the offences while on parole. The non-parole period was slightly above the statutory ratio under section 44 of the Crimes (Sentencing Procedure) Act 1999, but the Court found no basis to reduce it and no warrant for a finding of special circumstances.

The Court also noted, drawing on earlier authority, that the placement of the armed service station robbery on a Form 1 was inappropriate. That offence was considerably more serious than each of the indictment counts it accompanied, and its inclusion on a Form 1 meant the judge could not impose a sentence reflecting its true gravity. As a result, the applicant in fact received a sentence less severe than his overall criminality warranted.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal reaffirmed that placing a serious offence on a Form 1 is inappropriate where that offence is substantially more grave than the principal counts on the indictment, as it prevents the sentencing court from imposing a penalty that reflects the true seriousness of that offending.
  • Consistent with its earlier decisions in Eedens v R and CP v R, the Court reminded sentencing judges of their power to reject a Form 1 containing matters that do not belong there.
  • In dismissing the manifest excess ground, the Court treated the commission of offences while on parole and a lengthy prior record of similar dishonesty as factors substantially diminishing the weight available to subjective matters, including the applicant's personal history and expressed remorse.
  • A non-parole period slightly exceeding the statutory ratio under section 44 of the Crimes (Sentencing Procedure) Act 1999 does not of itself constitute error where there is no warrant for a finding of special circumstances.
  • No error was established in the sentencing judge's reliance on prior convictions as a basis for emphasising general and specific deterrence, provided the sentencing remarks do not disclose that the record was used as a sentencing "guideline" rather than as a relevant aggravating circumstance.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- Eedens v R [2009] NSWCCA 254
- CP v R [2009] NSWCCA 291