Citation: Elskaf v R [2023] NSWDC 8
Court: District Court of NSW
Date: 31 January 2023
Judge(s): Scotting DCJ
Background
The appellant had been found guilty in the Local Court of four counts of driving in a manner or at a speed dangerous to the public, contrary to s 117(2) of the Road Transport Act 2013. The offending occurred across four separate occasions in early 2020 and involved sustained high-speed driving, including speeds of up to 211 km/h, dangerous overtaking manoeuvres, and driving on a motorway closed due to bushfire. The appellant had filmed these episodes and published them on social media.
The Magistrate sentenced the appellant to Intensive Corrections Orders (ICOs) and imposed a total of 800 hours of community service. The appellant's prior conviction appeal was dismissed by Scotting DCJ on 2 November 2022. The severity appeal proceeded separately.
The prosecution conceded that each term of imprisonment imposed by the Magistrate exceeded the maximum penalty of 9 months for each offence charged as a first offence, and agreed that resentencing was required.
Legal Issues
- Whether the Magistrate's sentences were infected by legal error by exceeding the statutory maximum penalty for each offence
- What aggregate sentence was appropriate upon resentencing
- Whether the sentence should be served by way of an ICO rather than full-time custody
- Whether the disqualification orders imposed by the Magistrate should be disturbed
Decision
Error in Original Sentences:
The prosecution conceded, and the court accepted, that the Magistrate had imposed terms of imprisonment exceeding the 9-month statutory maximum for each offence, which was charged as a first offence under s 117(2). This required the appeal to be allowed and the appellant resentenced (at [4]).
Objective Seriousness:
Each offence was found to be objectively serious. The appellant drove at extreme speeds across multiple occasions, creating real risks of death or injury to passengers and other road users (at [11]-[15]). The court found that the appellant deliberately drove dangerously to film and publish his conduct on social media, intending to create notoriety, encourage imitation, and express contempt for police authority (at [17]).
Sentencing Considerations:
The court placed significant weight on general deterrence given the risks posed to road users by irresponsible driving, noting that the appellant's social media publication of the offending made a strong deterrent message particularly appropriate (at [20]-[21]). Specific deterrence was also relevant: the appellant had not accepted responsibility, expressed no remorse, and had demonstrated active disregard for law enforcement (at [22]). The court treated the absence of regard for public safety as an aggravating factor and noted the appellant's limited prior record (at [23]-[24]).
Aggregate Sentence and Mode of Serving:
The court imposed an aggregate term of 15 months imprisonment pursuant to s 54 of the Crimes (Sentencing Procedure) Act 1999 (at [27]). Having considered s 66 of the same Act, the court was satisfied the sentence should be served by way of an ICO, noting that community safety could be achieved through the disqualification period, and that community service and interventions would provide adequate punishment and retribution (at [28]-[30]). Community service was set at 150 hours, a figure consistent with what the Sentencing Assessment Report indicated the appellant could complete (at [5]).
Disqualification:
The court confirmed the disqualification orders made by the Magistrate, finding them proportionate and appropriate. Credit was to be given for any period of licence suspension between charge and the original court date (at [36]).
Orders Made
- Appeal allowed
- The ICOs imposed by the Magistrate were set aside
- An aggregate term of imprisonment of 15 months was imposed, to be served by way of an Intensive Corrections Order commencing 31 January 2023, with standard conditions applying
- The appellant must perform 150 hours of community service
- The disqualification order made by the Magistrate was confirmed
Key Takeaways
- Where a Magistrate imposes a term of imprisonment exceeding the statutory maximum for an offence, that error is sufficient to require the sentence to be set aside and the offender resentenced on appeal (at [4]).
- An aggregate ICO of 15 months with 150 hours of community service was held appropriate for four counts of dangerous driving at extreme speeds, where the offending was deliberate, filmed, and published to social media for notoriety (at [17], [27], [30]).
- General deterrence carries particular weight in dangerous driving sentencing, and the court found that deliberate social media publication of the conduct reinforced the case for a sentence sending a clear message to like-minded members of the public (at [20]-[21]).
- Under s 66 of the Crimes (Sentencing Procedure) Act 1999, a court may order that a term of imprisonment be served by way of an ICO where community safety is adequately addressed through other means, such as disqualification, even for objectively serious offending (at [28]-[29]).
- A failure to express remorse or accept responsibility, combined with active obstruction of police and contempt for legal authority, remains a relevant factor supporting specific deterrence in sentencing for traffic offences (at [22]).
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001
- Road Transport Act 2013
Cases
- Elskaf v R [2022] NSWDC 525