Citation: Zreika v R; Elsaj v R [2016] NSWCCA 177
Court: NSW Court of Criminal Appeal
Date: 19 August 2016
Judge(s): Hoeben CJ at CL, Button J, N Adams J
Background
Two applicants, each aged approximately 18 at the time of offending, pleaded guilty to multiple counts of armed robbery and aggravated armed robbery arising from a series of service station hold-ups in late 2013 and early January 2014. The offences involved co-offenders and, in most instances, a long-barrelled firearm. One offence involved the physical wounding of a victim struck by a baseball bat.
Judge Culver of the District Court sentenced the first applicant (Elsaj) to an aggregate sentence of 15 years and 6 months, with a non-parole period of 10 years and 6 months, commencing 3 January 2014. The second applicant (Zreika) received an aggregate sentence of 16 years and 6 months, with a non-parole period of 11 years and 6 months, also commencing 3 January 2014.
Both applicants sought leave to appeal against their sentences. Elsaj argued on five grounds, including failure to observe the totality principle, manifest excess, inadequate weight given to youth and rehabilitation, failure to properly reflect a finding of special circumstances, and a justified sense of grievance arising from disparity with co-offenders. Zreika argued his aggregate sentence and non-parole period were each manifestly excessive.
Legal Issues
- Whether the aggregate sentences and non-parole periods imposed on each applicant were manifestly excessive
- Whether the sentencing judge properly applied the totality principle to Elsaj's sentence
- Whether the sentencing judge adequately considered Elsaj's prospects of rehabilitation, his youth, the objective seriousness of individual offences, and the impact of Form 1 matters
- Whether the non-parole period for Elsaj sufficiently departed from the standard statutory ratio to reflect the finding of special circumstances
- Whether a parity principle grievance arose from the disparity between Elsaj's sentence and those imposed on his co-offenders
Decision
Hoeben CJ at CL, with whom Button J and N Adams J agreed, granted leave to appeal in both cases but dismissed both appeals.
On Zreika's grounds of manifest excess, the court found that the sentencing judge was entitled to impose a longer sentence on Zreika than on Elsaj, given Zreika's greater number of offences and his role as an active participant armed with a firearm on six occasions. The aggregate sentence and non-parole period were within the available discretion and were not shown to be manifestly excessive.
On Elsaj's grounds, the court rejected each argument in turn. It found that the sentencing judge had properly applied the totality principle, made findings on the relevant considerations including youth and rehabilitation, and had appropriately reflected the special circumstances finding in the extended additional term. On the parity ground, the court noted that intervention is warranted only where a disparity is "gross, marked or glaring." The court found that the differences between Elsaj's and co-offenders' sentences were justified by the distinct features of each offender's criminality, including Elsaj's prior conviction for the same type of offence, his re-offending immediately after release from a parole revocation, and the particular gravity of Incident 1, which involved actual physical wounding.
Button J added that, while the sentences were severe for young men of 18 years, neither applicant had demonstrated that the sentence fell outside the range properly available to the sentencing judge.
Orders Made
- Leave to appeal granted for both applicants.
- Both appeals dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that intervention on parity grounds requires a disparity that is "gross, marked or glaring," and differences between co-offenders' sentences justified by individual culpability will not meet that threshold.
- Acknowledging that sentences were severe for offenders aged 18 at the time of the offences, the court nonetheless found that objective gravity and the pattern of offending placed the sentences within the available range of discretion.
- A prior conviction for a materially identical offence, combined with re-offending immediately after release from custody following parole revocation, constitutes a significant feature properly weighing against a lesser sentence even for a young offender.
- Where a sentencing judge makes a finding of special circumstances, a sufficient departure from the standard non-parole period ratio may be reflected through an extended additional term rather than a reduction in the non-parole period itself.
- In dismissing both appeals, the court reinforced that aggregate sentencing for serial offending involving weapons and multiple victims carries substantial weight, and that the totality principle does not require an artificially low head sentence where the overall criminality is extensive.
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 6
- Crimes Act 1900 (NSW), ss 97(2), 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
Cases
- Abbas and Ors v R [2013] NSWCCA 115; 231 A Crim R 413
- Alvi v R [2014] NSWCCA 191
- Anaki v R [2006] NSWCCA 414
- Bland v R [2014] NSWCCA 82; 241 A Crim R 51
- Bobbin v R [2016] NSWCCA 38
- Bullock v R [2016] NSWCCA 131
- Cavanagh v R [2009] NSWCCA 174
- DB v R [2007] NSWCCA 27
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- England v R; Phanith v R [2009] NSWCCA 274
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
- JM v R [2014] NSWCCA 297
- Jodeh v R [2011] NSWCCA 194
- Johnson v R; Moody v R [2010] NSWCCA 124
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616
- Khawaja v R [2014] NSWCCA 80
- Lam v R [2014] NSWCCA 50
- Loader v R; Dunn v R [2013] NSWCCA 215
- Makarian v The Queen [2005] HCA 25; 228 CLR 357