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Court of Criminal Appeal 29 January 2020

Al Masri v R

[2020] NSWCCA 1

Assault & violenceTheft & property

Citation: Al Masri v R [2020] NSWCCA 1
Court: Court of Criminal Appeal, NSW
Date: 29 January 2020
Judge(s): Hoeben CJ at CL; Price J; Campbell J

Background

The appellant pleaded guilty in the Local Court to a single offence of aggravated break, enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900 (NSW). The underlying offence was larceny of $350 in cash from residential premises in Tempe in the early morning of 1 September 2017. Three circumstances of aggravation applied: the use of corporal violence, the infliction of actual bodily harm on the female occupant, and depriving her of her liberty by binding her with masking tape and an Ethernet cable the appellant had brought to the scene.

The female victim, who was home alone, was punched in the face, wrestled to the ground, kicked multiple times in the abdomen until she lost consciousness, and bound before the appellant ransacked the premises. She was hospitalised for three days and suffered both physical injuries and significant emotional harm. The appellant was arrested four days later and remained in custody from that point.

In the District Court at Parramatta, Judge Turnbull SC sentenced the appellant to 5 years and 8 months imprisonment with a non-parole period of 4 years and 3 months, incorporating a 25% discount for the utilitarian value of the guilty plea. The appellant then sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the sentence of 5 years and 8 months imprisonment (non-parole period of 4 years and 3 months) was manifestly excessive for a single offence of aggravated break and enter under s 112(2) of the Crimes Act 1900 (NSW).
  • Whether statistical sentencing data drawn from comparable cases could provide a reliable yardstick against which to assess whether the sentence was manifestly excessive.

Decision

Campbell J (with whom Hoeben CJ at CL and Price J agreed) dismissed the appeal after examining both the circumstances of the offending and the appellant's subjective case in detail. His Honour was satisfied that the sentencing judge's findings were open on the evidence and that no error had been established that would warrant appellate intervention under the principles in House v the King (1936) 55 CLR 499.

The subjective case included no prior convictions in Australia or Jordan, a plea of guilty at the first available opportunity, a difficult personal history including childhood sexual abuse, severe and recurring depressive disorder, drug dependency, and significant personal hardship (including the death of his father after visiting him in custody, and the cancellation of his visa). The sentencing judge accepted much of this material but did not accept the appellant's claim that his offending was driven solely by drug intoxication, nor that he was unaware someone might be in the premises when he entered.

On the statistical evidence, Campbell J concluded that the data available, covering 163 cases over approximately ten years, was insufficient to provide meaningful guidance. Only 23 of those offenders were sentenced to full-time imprisonment, and only three cases involved an offender of broadly comparable profile (aged 26 to 30, single offence, no prior convictions, plea of guilty). Those three cases produced sentences of 18 months, 3 years, and 4 years and 5 months respectively, but without information about the nature and number of aggravating circumstances in each, the data carried little weight. Hoeben CJ at CL agreed with the orders and general reasoning but expressly reserved his position on the utility of statistics in sentencing, noting the issue was not fully argued.

The Court concluded that while the sentence may have been comparatively longer than many others for the offence, that fact alone did not establish manifest excess. The sentence was neither manifestly excessive nor plainly unjust on the findings made by the sentencing judge.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence that is comparatively longer than many others imposed for the same offence does not, without more, establish manifest excess; the question is whether the sentence is plainly unjust or unreasonable on the findings made.
  • Statistical sentencing data may carry little or no practical weight where the sample size is small, the relevant sub-group is tiny, and there is insufficient information about the nature and degree of aggravating circumstances in the comparable cases.
  • Under s 112(2) of the Crimes Act 1900 (NSW), the combination of multiple statutory aggravating circumstances, including actual bodily harm, use of corporal violence, and deliberate deprivation of liberty, can support a substantial sentence even for a first offender who pleaded guilty.
  • Hoeben CJ at CL specifically reserved his position on the broader value of statistical analysis in sentencing, signalling that the role of such evidence in New South Wales criminal sentencing remains an open question.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that positive subjective factors, including no prior record, an early guilty plea, mental health issues, and significant personal hardship, do not automatically render a sentence manifestly excessive where the objective seriousness of the offending is high.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 105A, 112(2)
- Judicial Officers Act 1986 (NSW), s 8

Cases
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Knight v R [2015] NSWCCA 222
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Peters v R [2013] NSWCCA 324
- R v BB [2005] NSWCCA
- R v Coupe [2001] NSWCCA 112
- R v Huynh [2005] NSWCCA 220
- R v Scott [2001] NSWCCA 377
- R v Wood [2014] NSWCCA 184
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64