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Court of Criminal Appeal 18 June 2004

R v El-Andouri [2004] NSWCCA 178 revised - 17

[2004] NSWCCA 178

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING ACCUMULATION TAKING CONVEYANCE WITHOUT CONSENT DISCOUNT FOR GUILTY PLEA PURPOSE FOR WHICH VEHICLE STOLEN

Citation: R v El-Andouri [2004] NSWCCA 178
Court: New South Wales Court of Criminal Appeal
Date: 18 June 2004
Judge(s): Tobias JA, Kirby J, Bell J

Background

The appellant had pleaded guilty to four offences across two indictments. The first indictment concerned events on Boxing Day 2000 at a Kogarah hotel, where he armed himself with a replica pistol, threatened and assaulted staff during an attempted robbery, and fled empty-handed when police were called. He was bailed and directed to return for sentencing.

While on bail, and only 17 days after pleading guilty to the first indictment charges, the appellant committed far more serious offences. In the early hours of 3 September 2001, he and associates stole a car from a shopping centre car park, used it to surveil and then ram a service station owner's vehicle, and violently robbed him of approximately $12,000 to $13,000 in takings. The victim suffered severe and permanent injuries as a result of the attack, which the sentencing judge described as gratuitous violence of the worst kind.

The District Court sentenced the appellant to a total effective term of 18 years and 6 months with a non-parole period of 13 years and 6 months. The appellant sought leave to appeal against the sentences imposed for the two counts in the second indictment: stealing a motor vehicle and robbery in company inflicting grievous bodily harm.

  • Whether the sentencing judge erred in treating the stolen vehicle offence as an aggravating feature of the robbery, rather than sentencing it as a purely incidental act
  • Whether the sentence for the motor vehicle theft was manifestly excessive, particularly in imposing the maximum penalty of 5 years and ordering that sentence run consecutively (rather than concurrently)
  • Whether the sentence for robbery in company inflicting grievous bodily harm was manifestly excessive when compared with sentences imposed in comparable cases
  • Whether a sentencing disparity arose between the appellant's sentence and that imposed on a co-offender

Decision

On the motor vehicle theft count, the Court of Criminal Appeal found that the sentencing judge had erred. The error lay in treating the vehicle's use as an instrument of the robbery as an aggravating factor justifying the maximum sentence for the stealing offence itself, when that use was already a central feature of the robbery charge. The Court quashed the sentence for this count and resentenced the appellant to 4 years imprisonment with a non-parole period of 2 years and 3 months, preserving the partial accumulation structure.

On the robbery count, the Court dismissed the appeal. It accepted that the offence fell into the worst category of its kind. The appellant was the main perpetrator of extreme violence, the victim was left with permanent and life-altering injuries, and the offending occurred while the appellant was on bail having just pleaded guilty to the first indictment. The Court found these factors properly supported the 16-year sentence with a 9-year non-parole period imposed below.

The Court also rejected the disparity argument. The co-offender comparison did not establish that the appellant's sentence was disproportionate, given the differences in culpability and the overall objective gravity of the offending.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence for the second count of the second indictment (robbery in company inflicting grievous bodily harm) dismissed
  • Appeal against sentence for the first count of the second indictment (stealing a motor vehicle) allowed; sentence quashed
  • In substitution, the appellant sentenced to 4 years imprisonment commencing 30 April 2004 and expiring 29 April 2008, with a non-parole period of 2 years and 3 months commencing 30 April 2004 and expiring 29 July 2006

Key Takeaways

  • A sentencing court errs when it treats the use of a stolen vehicle as an instrument of another offence as an aggravating feature of the stealing charge itself, where that use is already captured within the more serious offence being sentenced at the same time.
  • In dismissing the appeal on the robbery count, the Court of Criminal Appeal confirmed that offending committed while on bail, and shortly after pleading guilty to separate serious charges, is a legitimate aggravating factor in sentencing.
  • Where an offence falls within the worst category of its type and the offender was the principal perpetrator of extreme violence, a sentence at or near the maximum is not necessarily manifestly excessive.
  • Sentencing disparity between co-offenders does not automatically warrant a reduction in sentence; the Court must assess whether the difference reflects a genuine injustice or simply the different circumstances and culpability of each offender.
  • Under the principle in Lowe v The Queen and Postiglione v The Queen, disparity between co-offenders' sentences is relevant but not determinative, and courts assess whether the difference produces a justifiable sense of grievance rather than applying a mechanical equivalence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93C(1), 97(1), 98, 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bavadra (2000) 115 A Crim R 152
- Budd [2002] NSWCCA 302
- Hammoud (2000) 118 A Crim R 66
- Itamua [2000] NSWCCA 502
- Karaman (2002) 128 A Crim R 72
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1996) 189 CLR 295
- R v Merritt [2000] NSWCCA 365
- R v Rutter [2003] NSWCCA 306
- R v Thompson (2000) 49 NSWLR 383
- Sotheren [2001] NSWCCA 425
- Uasi [1999] NSWCCA 306