Citation: Elsaj v R [2017] NSWCCA 124
Court: NSW Court of Criminal Appeal
Date: 8 June 2017
Judge(s): Bathurst CJ; Hoeben CJ at CL; McCallum J
Background
The applicant was sentenced in the Parramatta District Court in September 2016 on five counts: two counts of supplying a commercial quantity of prohibited drugs (ecstasy and cocaine), one count of supplying an indictable quantity of cocaine, and two counts of possessing proceeds of crime totalling over $165,000. The offending spanned mid-2014 into early 2015, with the 2015 supply and possession offences committed while the applicant was on bail for the 2014 offences.
The applicant had been identified through a police strike force investigating drug supply in Western Sydney. He played a role well up the supply chain, filling orders for large quantities of ecstasy and cocaine relatively quickly and at significant scale. Police found nearly one kilogram of cocaine buried in his backyard, as well as substantial cash at his home on the day of his arrest.
The sentencing judge imposed an aggregate term of 16 years and 6 months with a non-parole period of 11 years and 6 months, applying a 25 per cent discount for an early guilty plea. The applicant sought leave to appeal on the sole ground that the aggregate sentence was manifestly excessive.
Legal Issues
- Whether the aggregate sentence of 16 years and 6 months was manifestly excessive
- Whether the seven "comparable" cases cited by the applicant were genuinely comparable for sentencing purposes
- Whether the sentencing judge correctly applied relevant sentencing principles, including partial accumulation for continuing offending conduct
Decision
Hoeben CJ at CL, with Bathurst CJ agreeing, rejected the applicant's sole ground of appeal. The Court found that the seven cases relied upon by the applicant as "comparables" were not, in fact, comparable. The applicant's approach was criticised: it is an incorrect method to simply list cases and assert without detailed analysis that a sentence is disproportionate. As the High Court confirmed in The Queen v Pham [2015] HCA 39, comparable cases are a guide only, and mathematical comparisons across different factual circumstances carry little weight.
The Court examined each of the purported comparable cases and identified material differences in the nature and scale of offending, the offender's role in the drug supply chain, and the offender's criminal history or circumstances. None of the cases were considered sufficiently similar to assist the applicant's argument.
The Court took into account a range of factors that supported the sentence, including the objective seriousness of the offences, the commercial scale of the drug operation, the applicant's position in the supply hierarchy, the commission of further offences while on bail, poor prospects of rehabilitation, prior criminal history, and the need for both general and specific deterrence. The aggregate sentence was held to reflect appropriate partial accumulation for continuing criminal conduct over time and could not be characterised as plainly unjust or manifestly wrong.
McCallum J added a separate observation regarding hardship to the applicant's family. The applicant's wife had filed an affidavit addressing the impact of his incarceration on their children. McCallum J noted that such evidence can provide a proper basis for submissions about hardship to third parties as a relevant sentencing factor, and can at minimum support a finding of "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, because trial counsel had not made that submission below, the Court's consideration of that evidence on appeal was constrained.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Citing a list of purportedly comparable cases without detailed factual analysis is an incorrect approach to a manifest excess argument: the Court of Criminal Appeal confirmed that comparable sentences serve only as a guide and are not a substitute for a careful, case-specific analysis.
- Where an applicant relies on "comparable" cases on appeal, those cases must be genuinely analogous in terms of the nature and scale of offending, the offender's role, and their personal circumstances. Surface-level similarities will not suffice.
- Offending on bail, a high position in a drug supply hierarchy, and poor prospects of rehabilitation are all factors that can justify a substantial aggregate sentence even after a 25 per cent discount for an early guilty plea.
- Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), hardship to an offender's family can support a finding of "special circumstances," even where the circumstances do not rise to the level of "exceptional" as that concept has been developed in the case law.
- The utility of an affidavit addressing family hardship is limited on appeal if the point was not properly developed by way of submission at the original sentencing hearing, as the Court of Criminal Appeal's consideration will be constrained accordingly.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 193B(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 53A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
Cases
- The Queen v Pham [2015] HCA 39; 256 CLR 550
- R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222
- Lowndes v R [1999] HCA 29; 195 CLR 665
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Bugmy v The Queen [1990] HCA 18; 169 CLR 525
- Baquiran v R [2014] NSWCCA 221
- JM v R [2014] NSWCCA 297
- Kremisis v R [2016] NSWCCA 257
- R v Cahill [2015] NSWCCA 53
- R v Cidan [2014] NSWCCA 66
- R v Hatzisavvas; R v Lopez-Rios [2016] NSWCCA 147
- R v Nykolyn [2012] NSWCCA 219
- R v Zolfonoon [2016] NSWCCA 250
- Subramaniam v R [2013] NSWCCA 159
- Wang, Dong Pei v R [2016] NSWCCA 161
- Efstanthiadis v R [2009] NSWCCA 319