Citation: R v El-Hage [2003] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 28 April 2003
Judge(s): Simpson J; Hulme J
Background
The applicant, an eighteen-year-old male at the time of the offences, pleaded guilty in the District Court to two counts of robbery whilst armed with a dangerous weapon and one count of assault with intent to rob. Two further offences (obtaining money by deception and attempting to obtain money by deception) were taken into account on a Form 1. The offences were committed over less than a month in Sydney's south-western suburbs, principally on suburban trains, and involved the use of knives against victims including a thirteen-year-old schoolboy.
The sentencing judge, Backhouse DCJ, imposed cumulative sentences of periodic detention totalling three years with a non-parole period of two years and six months. Her Honour also found special circumstances under the relevant sentencing legislation to justify departing from the standard non-parole ratio, though her reasons for that finding were not spelled out in her remarks on sentence.
The applicant sought leave to appeal on the ground that the sentences were structured incorrectly, particularly in relation to the special circumstances finding and its effect on the overall non-parole period.
Legal Issues
- Whether the sentencing judge erred in the manner in which she structured the sentences, particularly in finding special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999
- Whether the special circumstances finding warranted a reduction in the overall non-parole period below the statutory ratio
- Whether subsequent developments, including the potential for the sentence to be converted to full-time custody and the need for protective custody, could be taken into account on appeal
Decision
Simpson J (with Hulme J agreeing) accepted that there was an irregularity in the way the sentences were structured. However, her Honour found it difficult to determine precisely what the sentencing judge intended by finding special circumstances, noting that nothing in the remarks on sentence suggested an intention to reduce the overall non-parole period below seventy-five per cent of the total sentence. The non-parole period as fixed actually represented approximately eighty to eighty-three per cent of the overall sentence, exceeding the statutory minimum proportion.
The Crown conceded the irregularity but argued that any lesser sentence would have been manifestly inadequate given the number and seriousness of the offences. The Court accepted that submission, finding no demonstrated error that would warrant interference with the sentences imposed.
The Court also rejected the argument based on post-sentence developments. The possibility that the periodic detention might be converted to full-time custody, and the consequent need for protective custody given the applicant's assistance to authorities, was held to be irrelevant. Events occurring after sentencing cannot ordinarily be taken into account when determining a severity appeal.
Orders Made
- Leave to appeal granted
- Appeal dismissed
- Contents of the sealed envelope (relating to assistance to authorities) to be resealed and not opened except by order of a judge
Key Takeaways
- No error was established in the overall non-parole period despite a conceded irregularity in the sentencing structure, because the remarks on sentence did not indicate an intention to depart below the statutory ratio in a way that materially disadvantaged the applicant.
- Under s 44 of the Crimes (Sentencing Procedure) Act 1999, a finding of special circumstances must be understood in context; where the non-parole period as fixed actually exceeds the statutory minimum proportion, any structural irregularity may not produce a reviewable error.
- Post-sentencing developments, including the potential conversion of a periodic detention order to full-time custody and resulting protective custody requirements, cannot ordinarily be considered by the Court of Criminal Appeal on a severity appeal.
- In dismissing the appeal, the Court confirmed that the Crown's concession of a sentencing irregularity does not automatically lead to resentencing if the original sentence was not demonstrably inadequate or excessive.
- A sealed envelope containing information about assistance to authorities was subject to a specific direction restricting access, reflecting the Court's approach to protecting sensitive material of that kind.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3; s 44
Cases:
- The Queen v Ellis (1986) 6 NSWLR 603 (concerning sentencing discounts for assistance to authorities)