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Court of Criminal Appeal 3 August 2018

Elshaimy v R

[2018] NSWCCA 169

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENDERS NO ERRONEOUS DISPARITY FOUND APPEAL DISMISSED

Citation: Elshaimy v R [2018] NSWCCA 169
Court: Court of Criminal Appeal (NSW)
Date: 3 August 2018
Judges: Meagher JA, R A Hulme J, Button J (unanimous, with Button J delivering the principal judgment)

Background

The applicant was convicted after a jury trial of aggravated (in company) break, enter and commit a serious indictable offence (larceny), contrary to s 112(2) of the Crimes Act 1900 (NSW). The offence related to an armed robbery of a Kings Cross hotel in July 2013, during which two balaclava-wearing men forced entry and stole over $140,000 in cash. The applicant was acquitted of a separate conspiracy to commit armed robbery charge arising from a second planned robbery in October 2013.

The applicant was sentenced in the District Court in May 2016 to a head sentence of five years and six months, with a non-parole period of three years and nine months. Three co-offenders, including his brother Islam Elshaimy and Ammar Chahal, were sentenced on the same day for overlapping offences. Ammar Chahal subsequently succeeded on a sentencing appeal to the Court of Criminal Appeal, which altered the comparison available to the applicant when assessing sentence parity.

The applicant sought an extension of time to appeal his sentence, which the Court granted, largely because one ground was partly based on a 2017 decision of the same court.

  • Whether the sentencing judge erred by failing to make express findings about the applicant's risk of re-offending (s 21A(3)(g), Crimes (Sentencing Procedure) Act 1999) and prospects of rehabilitation (s 21A(3)(h))
  • Whether the applicant had a justifiable sense of grievance arising from a sentencing disparity with his co-offenders, Islam Elshaimy and Ammar Chahal, in respect of the identical aggravated break and enter charge

Decision

Ground 2: Parity (dealt with first by the Court)

Button J undertook a detailed comparative analysis of the objective and subjective circumstances of the applicant, Islam Elshaimy, and Ammar Chahal. The Court found that the differences in sentence reflected the genuine differences in culpability and circumstance between the offenders. Islam was convicted of both the break and enter and the conspiracy to commit armed robbery, resulting in a higher overall sentence. Ammar Chahal, although re-sentenced on appeal, had pleaded guilty and demonstrated remorse, which attracted discounts not available to the applicant. No erroneous disparity was established.

Ground 1: Failure to make findings on rehabilitation and re-offending risk

The Court acknowledged that sentencing remarks must generally engage with written and oral submissions made on behalf of each party. However, it rejected any requirement that a sentencing judge mechanistically address each discrete statutory consideration by name, provided the overall tenor of the remarks implicitly accepts the relevant points. In this case, the sentencing judge's discussion of the applicant's subjective circumstances was extensive and substantially positive, including findings of prior good character, tertiary education, and a supportive family background. The Court found it inevitable that the sentencing judge accepted the applicant had sound prospects of rehabilitation, even without stating so expressly. No material error was established.

Orders Made

  • Extension of time and leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not required to address each statutory sentencing factor in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 by name, provided the overall remarks on sentence implicitly reflect the relevant considerations.
  • Where the whole flavour of sentencing remarks amounts to an implicit acceptance of a point made in an offender's favour, the failure to refer to that point expressly will not ordinarily constitute a material error warranting re-sentence.
  • In dismissing the parity ground, the Court of Criminal Appeal confirmed that sentence comparisons must account for genuine differences between co-offenders, including differences in the charges of which each was convicted, whether a plea of guilty was entered, and any demonstrated remorse.
  • No erroneous disparity arises simply because co-offenders received lower sentences, where those differences are explained by material distinctions in objective and subjective circumstances.
  • An extension of time to appeal was granted despite significant delay, because one proposed ground was partly founded on a Court of Criminal Appeal decision handed down after the original sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(g) and (h)

Cases: No specific cases were cited by name in the portion of the judgment provided.