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Court of Criminal Appeal 20 December 2024

Elahmad v R

[2024] NSWCCA 250

Fraud & dishonestyTheft & property
CRIME APPEAL AGAINST AGGREGATE SENTENCE APPLICANT HELD TO CONCESSION NO LESSER SENTENCE WARRANTED

Citation: Elahmad v R [2024] NSWCCA 250
Court: NSW Court of Criminal Appeal
Date: 20 December 2024
Judges: Davies J, Yehia J, R A Hulme AJ

Background

The applicant was sentenced in the District Court at Newcastle to an aggregate term of six years' imprisonment with a non-parole period of three years. The sentence covered 11 offences committed over approximately three weeks in April and May 2022: nine counts of steal from the person, one count of aggravated steal from the person, and one count of dishonestly obtaining property by deception.

The offending involved a consistent pattern: the applicant posed as a prospective buyer of items listed on Gumtree, asked to inspect the item (typically a mobile phone or iPad), then fled in his car with it. On several occasions, victims were injured. The most serious incident, which gave rise to the aggravated charge, resulted in a victim losing four teeth after she grabbed the door frame of his car as he drove away.

At the time of the offences, the applicant was on parole for a prior aggregate sentence of six years imposed in 2019. The sentencing judge referred to this conditional liberty when assessing the objective seriousness of the offending. The applicant sought leave to appeal on that single ground.

  • Whether the sentencing judge erred by taking the applicant's status on parole into account when assessing the objective seriousness of the offences, rather than as a separate aggravating factor going to the overall sentence.
  • Whether, on resentencing, the applicant could advance a submission that conflicted with a concession made in the court below.
  • Whether the re-exercise of sentencing discretion warranted a lesser sentence than that originally imposed.

Decision

The Court of Criminal Appeal held that the sentencing judge had erred. While being on conditional liberty (including parole) is a recognised statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that factor is personal to the offender. It bears on the overall sentencing exercise but not on the objective seriousness of the offending conduct itself. Taking it into account at that stage of the analysis is an established error, confirmed by authority including R v McNaughton [2006] NSWCCA 242 and Muldrock v The Queen [2011] HCA 39.

Having found error, the Court was required to resentence the applicant afresh under s 6(3) of the Criminal Appeal Act 1912 (NSW). During that process, the applicant sought to advance a submission that conflicted with a concession made by his counsel before the District Court, specifically that 50% of the time spent in custody after his arrest (where that custody was also referable to serving the balance of his revoked parole) should be credited toward the new sentence. The Court held the applicant to that concession.

On resentencing, the Court assessed indicative sentences for each offence at the same or very similar levels to those determined by the primary judge, applied the totality principle with an appropriate degree of notional accumulation, and arrived at an aggregate sentence no less than the original six years. Because the resentenced term was not lower than the sentence under appeal, the appeal was dismissed in accordance with established practice.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Conditional liberty, including parole, is a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW), but it is personal to the offender and cannot be used to elevate the objective seriousness of the offending conduct. Doing so constitutes legal error.

  • The Court of Criminal Appeal confirmed the distinction between factors that inform objective seriousness (those that relate to the nature and circumstances of the offending itself) and factors that are relevant only to the broader sentencing exercise (such as an offender's criminal history or conditional liberty status).

  • Where an established error in sentencing is found, the appellate court must resentence afresh. An applicant is not automatically advantaged by that process: the re-exercised discretion can produce a sentence equal to or greater than the original.

  • An applicant on resentencing will generally be held to concessions made by counsel in the court below. The Court declined to allow a submission that contradicted what had been accepted without demur at the sentencing hearing.

  • In dismissing the appeal, the Court applied the principle that where the re-exercised sentencing discretion yields a term no less than that originally imposed, the appeal must be dismissed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 94(b), 95(1), 192E(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Court Act 1998 (NSW), s 5A(1)
- Road Transport (Vehicle Registration) Regulation 2017 (NSW)

Cases
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Boney v R [2015] NSWCCA 291
- McCabe v R [2016] NSWCCA 7
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- Adams v R [2018] NSWCCA 139
- Kliendienst v R [2020] NSWCCA 98
- Rahman v R [2023] NSWCCA 148