AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 29 October 2019

Elzahed v Kaban

[2019] NSWSC 1466

Public order & justice offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE SENTENCE APPEAL DISMISSED

Citation: Elzahed v Kaban [2019] NSWSC 1466
Court: Supreme Court of New South Wales
Date: 29 October 2019
Judge: Harrison J

Background

This decision is the sentencing chapter of a broader appeal. Earlier in 2019, Harrison J dismissed the appellant's appeal against conviction on nine offences under s 200A of the District Court Act 1973 (NSW). Those offences arose from the appellant's repeated refusal to stand when a judge entered the courtroom during District Court proceedings. Harrison J had reserved the sentencing grounds for further written submissions before issuing this judgment.

The sentencing Magistrate had imposed 75 hours of community service across the nine offences, finding the objective seriousness of the conduct to be above the mid-range. The Magistrate's remarks on sentence incorporated her earlier findings of fact, including that the appellant had intentionally communicated disrespect to the court and the presiding judge.

On appeal, the appellant challenged that sentence on grounds that the Magistrate had made a series of erroneous factual findings that infected the sentencing discretion. She also argued that a non-conviction order under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ought to have been made.

  • Whether the Magistrate erred in finding that the appellant intended to communicate disrespect to the judge
  • Whether the Magistrate erred in finding that the conduct was disrespectful to the judge personally, not merely to the court
  • Whether the Magistrate erred in finding there was no evidence of a genuine religious belief underlying the conduct
  • Whether the Magistrate erred in finding the appellant knew of relevant court practice and convention
  • Whether the Magistrate erred in finding the conduct in fact communicated disrespect
  • Whether any such errors amounted to a denial of procedural fairness or an error of law affecting the sentence
  • Whether, on resentencing, a s 10 non-conviction order was appropriate

Decision

Harrison J examined each of the five alleged errors in the sentencing Magistrate's reasoning. The appellant argued that the Magistrate's finding of an intention to communicate disrespect was unsupported, that it went beyond what circumstantial evidence permitted, and that it was practically impossible for the appellant to have controverted findings made at trial when those findings were expressly adopted as the factual basis for sentencing. Harrison J considered these arguments carefully but ultimately was not persuaded that any of the alleged errors were established.

On the procedural fairness ground, Harrison J acknowledged the appellant's contention that re-opening findings made after a three-day trial would likely have been seen as an abuse of process. Nonetheless, the court found that the Magistrate's findings were sufficiently explained by the reasons given, including her Honour's treatment of the appellant's unsworn letter at the sentencing hearing in which the appellant stated she had not intended disrespect. The Magistrate had weighed that letter against the earlier evidentiary findings and was not persuaded to revise her view.

Turning to resentencing and the question of a s 10 order, Harrison J declined to record no conviction. Three factors weighed against it. First, the multiple offences, though not the gravest imaginable, were directed at maintaining respect for the judicial process, and repetition of such conduct was inconsistent with treating the offending as trivial. Second, general deterrence was a legitimate sentencing consideration for offences under s 200A, given the section's evident purpose in protecting the integrity of court proceedings. Third, the court was not satisfied that recording a conviction would expose the appellant to extra-judicial punishment. Harrison J noted that in the particular circumstances, public opprobrium might actually be higher if no conviction were recorded.

The appeal against sentence was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Sentencing courts are entitled to incorporate factual findings from the conviction judgment as the factual basis for the sentencing exercise, provided those findings are adequately reasoned.
  • A defendant's unsworn letter tendered at sentencing can be weighed against earlier evidentiary findings; the Magistrate was not obliged to revise her findings of intention on the basis of a self-interested, untested statement.
  • Under s 200A of the District Court Act 1973, multiple and repeated instances of the same conduct weigh against characterising the offending as trivial for the purposes of a s 10 non-conviction order.
  • General deterrence remains a relevant sentencing consideration for offences directed at maintaining respect for judicial proceedings, and the usual caution about general deterrence where a prospective offender cannot reasonably anticipate criminal consequences carries less force in that context.
  • In dismissing the sentence appeal, Harrison J confirmed that whether recording a conviction will attract extra-judicial punishment is a case-specific inquiry; it is not answered simply by the public profile of the offender or the nature of the offending.

Legislation and Cases Referenced

Legislation:
- District Court Act 1973 (NSW), s 200A
- Crimes (Appeal and Review) Act 2001 (NSW), ss 3(3), 3(3A), 55(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10, 10A
- Child Protection (Working with Children) Act 2012 (NSW), ss 8, 13, 18

Cases:
- Elzahed v Kaban [2019] NSWSC 670
- Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3
- Director of Public Prosecutions (NSW) v Hughes [2017] NSWSC 492
- Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd (2003) 59 NSWLR 210; [2003] NSWCCA 356
- Director of Public Prosecutions v Belani (2005) 64 NSWLR 319; [2005] NSWSC 1013
- Director of Public Prosecutions v Sadler [2013] NSWSC 718
- Erector Group Pty Ltd v Burwood Council [2018] NSWCCA 56
- Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1
- Lake Macquarie City Council v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387
- Matheson v Director of Public Prosecutions (2008) 185 A Crim R 83; [2008] NSWSC 550
- Mok v R [2011] VSCA 247
- R v Ingrassia (1997) 41 NSWLR 447
- R v Mauger [2012] NSWCCA 51
- R v Nguyen [2002] NSWCCA 183
- Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213
- DPP v Pell [2019] VCC 260