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Court of Criminal Appeal 25 May 2015

EL-AFCHAL v R

[2015] NSWCCA 112

Theft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE RELATING THERETO THIS DID NOT GIVE RISE TO ERROR APPEAL DISMISSED CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: El-Afchal v R [2015] NSWCCA 112
Court: NSW Court of Criminal Appeal
Date: 25 May 2015
Judge(s): Hoeben CJ at CL, Hall J, R A Hulme J

Background

The appellant was sentenced in the District Court on 21 November 2013 to an aggregate term of four years imprisonment, with a non-parole period of two years, for three offences: receiving stolen property, knowingly facilitating an organised car rebirthing activity, and possessing a prohibited weapon. The offences were committed in early 2007, and all were aggravated by the fact that the appellant was on bail at the time.

The gap between the appellant's arrest in August 2007 and sentencing in November 2013 was substantial. A significant portion of that delay was attributable to the appellant committing further offences in Queensland in December 2008, followed by Queensland proceedings and imprisonment there, before his extradition to New South Wales in May 2012.

The sentencing judge applied a 20% discount for the utilitarian value of the guilty pleas and backdated the commencement of the sentence to account for pre-sentence custody. A separate error in calculating the precise length of that pre-sentence custody was identified during the appeal.

  • Whether the sentencing judge erred in his treatment of the delay between arrest and sentence, and whether he failed to properly account for that delay as a basis for assessing the appellant's rehabilitation
  • Whether the sentencing judge should have found that the appellant had achieved "substantial" progress towards rehabilitation, rather than merely "some" progress
  • Whether the sentencing judge made a factual error regarding the period over which rehabilitation had occurred, and if so, whether that error was material
  • Whether the sentence needed to be amended to correct an error in the calculation of pre-sentence custody

Decision

On the primary ground, the Court of Criminal Appeal found no appellable error in the sentencing judge's treatment of delay and rehabilitation. The sentencing judge had treated the two considerations as interrelated and had expressly reduced the sentence to account for them. The Court found that the judge had weighed both delay and rehabilitation together, as was open on the evidence.

The appellant argued the sentencing judge should have found "substantial" progress towards rehabilitation, rather than merely "some" progress. The Court rejected this. A finding as to the degree of rehabilitation is a factual matter for the sentencing judge, and the appellant did not establish that the judge's finding fell outside the range of available conclusions. The appellate court's function was not to substitute its own assessment of the evidence for that of the trial judge.

The Court acknowledged that the sentencing judge made a factual error as to the precise period over which the appellant's rehabilitation had taken place. However, Hall J found this error did not give rise to appellable error in the sentence itself. The judge's overall approach to rehabilitation and delay was not shown to be legally flawed, and the sentence was not demonstrably outside the proper range.

On the second ground, both parties agreed the sentencing judge had incorrectly calculated the pre-sentence custody period. The judge backdated the sentence by three months and three days, when the correct period was three months and seventeen days. The Court allowed the amendment and corrected the commencement dates accordingly.

Orders Made

  • Leave granted to amend the Notice of Appeal to include Ground 2 (error in pre-sentence custody calculation)
  • Leave to appeal granted
  • The aggregate sentence amended so that the non-parole period is taken to have commenced on 4 August 2013 and expires on 3 August 2015; the balance of term of two years commences 4 August 2015 and expires 3 August 2017
  • The appeal otherwise dismissed

Key Takeaways

  • A sentencing judge is entitled to treat delay and rehabilitation as interrelated considerations, and a sentence will not be disturbed on appeal where the judge demonstrably took both matters into account and reduced the sentence accordingly.
  • No error is established merely because an appellant contends a higher degree of rehabilitation should have been found. The characterisation of progress as "some" rather than "substantial" is a factual conclusion for the sentencing court, and the appellate court will not intervene absent clear error.
  • A factual error by the sentencing judge as to the period over which rehabilitation occurred will not automatically vitiate a sentence; the question is whether the error affected the exercise of the sentencing discretion in a material way.
  • Where a significant portion of the delay between arrest and sentence is attributable to the offender's own conduct in committing further offences and undergoing proceedings in another jurisdiction, that context is relevant to how the delay is characterised and weighted.
  • In dismissing the substantive appeal, the Court still corrected the pre-sentence custody calculation by consent, confirming that such arithmetic errors are amenable to correction even where the overall sentence is upheld.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 154G, 188(1)(a)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 53A(2)

Cases
- House v The King (1936) 55 CLR 499
- Kentwell v R [2014] HCA 37; (2014) 313 ALR 451
- R v Tannous; R v Fahda; R v Dib [2012] NSWCCA 243