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Court of Criminal Appeal 19 February 2025

Elali v R

[2025] NSWCCA 9

Assault & violenceTheft & propertyTraffic & drivingPublic order & justice offences
CRIME APPEALS APPEAL AGAINST CONVICTION APPEALS APPEAL AGAINST SENTENCE APPEALS

Citation: Elali v R [2025] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 19 February 2025
Judges: Price AJA (principal judgment); Ierace J and McNaughton J (both agreeing)

Background

The applicant pleaded guilty to a series of offences including break and enter, larceny, police pursuit, assault of police officers, and driving while disqualified. Among the charges was an offence of entering a building with intent to commit an indictable offence under s 114(1)(d) of the Crimes Act 1900 (NSW), where the intended indictable offence was the common law offence of escaping from lawful custody. He also pleaded guilty directly to the common law offence of escaping police custody.

On 21 November 2023, a District Court judge sentenced the applicant to an aggregate term of 8 years imprisonment with a non-parole period of 4 years, after applying a 25% discount for guilty pleas and finding special circumstances.

The applicant sought leave to appeal against both his conviction and his sentence on several grounds, and during the hearing applied to raise a further ground concerning the sentencing judge's treatment of his history of sexual abuse in juvenile detention.

  • Whether the applicant could, in law, be convicted of entering a building with intent to commit the common law offence of escape, given the agreed facts about the sequence of events
  • Whether the common law offence of escaping from lawful custody is a continuing offence, and whether there is any temporal limitation that ends the offence (such as loss of pursuit or loss of sight)
  • Whether the sentencing judge erred in fixing the commencement date of the aggregate sentence
  • Whether the judge applied the wrong maximum penalty for the driving while disqualified offences
  • Whether fresh evidence of the applicant's sexual abuse at Reiby Juvenile Justice Centre, not before the sentencing judge, gave rise to a miscarriage of justice warranting resentencing

Decision

Ground 1: Conviction for entering a building with intent to escape

The Court of Criminal Appeal held unanimously that the common law offence of escaping from lawful custody is a continuing offence. The offence does not end merely because pursuit has ceased, the escapee has moved out of sight, or the custodian has temporarily lost control. Whether an escape has ended is a question of fact, not one resolved by imposing fixed boundaries. On the agreed facts, the applicant was still in the process of escaping when he entered the premises, and his conviction was therefore legally sound. The appeal against conviction was dismissed.

Ground 2: Commencement date of the aggregate sentence

The Court found that the commencement date of a sentence is a matter of discretion for the sentencing judge, and that an error of the kind described in House v The King (1936) had to be established before the Court of Criminal Appeal could intervene. The applicant failed to establish any such error, and this ground was rejected.

Ground 3: Incorrect maximum penalty for driving while disqualified

The Crown conceded this ground. Following 2017 amendments to the Road Transport Act 2013 (NSW), the maximum penalty for the relevant driving while disqualified offences was 12 months imprisonment, not the 2 years the sentencing judge applied. The Court held that applying the wrong maximum had the capacity to materially affect the aggregate sentence, making resentencing necessary.

Proposed Ground 4: Sexual abuse in juvenile detention

The Court granted leave to add this ground and admitted fresh evidence that the applicant had been sexually abused at Reiby Juvenile Justice Centre. The Court found that, had this material been before the sentencing judge, his Honour would have found on the balance of probabilities that the applicant had been both physically and sexually abused there. A finding of sexual abuse is significant and cannot readily be set aside in a sentencing exercise. The absence of this material deprived the judge of a full appreciation of the applicant's background and, in these exceptional circumstances, constituted a miscarriage of justice. The Court resentenced the applicant to a reduced aggregate sentence of 7 years and 6 months, with a non-parole period of 3 years and 9 months, maintaining the 50% ratio between head sentence and non-parole period that the sentencing judge had applied.

Orders Made

  • Leave to appeal against conviction granted; appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal against sentence allowed
  • Aggregate sentence imposed on 21 November 2023 quashed
  • In its place, aggregate term of imprisonment of 7 years and 6 months imposed, comprising a non-parole period of 3 years and 9 months commencing 20 March 2022 and expiring 19 December 2025, and a balance of term of 3 years and 9 months commencing 20 December 2025 and expiring 19 September 2029
  • Earliest date of eligibility for release on parole: 19 December 2025

Key Takeaways

  • The Court of Criminal Appeal confirmed that the common law offence of escaping from lawful custody is a continuing offence in New South Wales. It persists while the escape is ongoing, and no temporal rule automatically terminates it upon loss of pursuit, loss of sight, or loss of immediate control by the custodian.
  • Whether an escape has concluded is a question of fact to be determined on the specific circumstances of each case, without reference to fixed limiting rules of the kind disapproved in certain New Zealand authorities.
  • Applying an incorrect maximum penalty to constituent offences has the capacity to infect an aggregate sentence, and where that capacity is established, resentencing is required.
  • Fresh evidence of childhood sexual abuse in a custodial setting can constitute a basis for allowing a sentencing appeal where its absence at the original hearing deprived the sentencing judge of a full understanding of the offender's background. The Court treated this as an exceptional case warranting that outcome.
  • In dismissing the conviction appeal, the Court applied the principle that a guilty plea to an offence that is legally available on the agreed facts does not give rise to a miscarriage of justice, even where the offender challenges the legal basis of the charge on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 60(1), 61, 114(1)(d), 117
- Road Transport Act 2013 (NSW), s 54(1)(a)
- Road Transport Amendment (Driver Licence Disqualification) Act 2017 (NSW), Sch 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A(2)(b)
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Inclosed Lands Protection Act 1901 (NSW), s 4(1)(b)

Cases
- House v The King (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601
- Meissner v The Queen (1995) 184 CLR 132
- R v Tommy Ryan (1890) 11 LR (NSW) 171
- R v Ryan and Walker [1966] VR 553
- R v Reid (Stuart William) [2015] EWCA Crim 597
- R v Scott [1967] VR 276 (distinguished)
- Barnes v R [2022] NSWCCA 140
- Da Silva v R [2024] NSWCCA 216
- Nasrallah v R (2021) 105 NSWLR 451
- Moriarty v Nye [2024] NSWCCA 116
- Delaney v R [2013] NSWCCA 150
- Kaveh v R [2017] NSWCCA 52
- Kandemir v R [2018] NSWCCA 154
- Andreata v R [2015] NSWCCA 239
- Nassr v R [2015] NSWCCA 284
- R v AGR (NSW Court of Criminal Appeal, 24 July 1998, unrep)