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Court of Criminal Appeal 5 May 2003

Regina v El-Farra [2003] NSWCCA 140 revised - 19

[2003] NSWCCA 140

Assault & violenceTheft & property
SENTENCING

Citation: Regina v El-Farra [2003] NSWCCA 140
Court: NSW Court of Criminal Appeal
Date: 5 May 2003
Judge(s): Giles JA, Bell J, Carruthers AJ

Background

The respondent pleaded guilty in the Sydney District Court to assault occasioning actual bodily harm and taking and driving a conveyance without the owner's consent. The offences arose from a single incident on 11 September 2001, in which the respondent entered a parked vehicle, threatened the owner with a screwdriver, inflicted a laceration to the victim's throat, and then drove the vehicle away before being apprehended by police.

At sentencing in December 2002, Judge Taylor backdated both sentences to commence on 11 September 2001 (the date of arrest) and imposed them concurrently. The effect was that the respondent had, by the time of sentence, already served the entire fixed term on the conveyance count and much of the non-parole period on the assault count.

The Director of Public Prosecutions appealed to the Court of Criminal Appeal on the ground that the sentences were manifestly inadequate, arguing that the backdating and the concurrent structure were both errors in principle.

  • Whether the sentencing judge erred by backdating both sentences to the date of the respondent's arrest rather than to the date of sentencing.
  • Whether the sentencing judge erred by imposing the two sentences to run entirely concurrently, given that the offences involved discrete criminal acts.

Decision

On the backdating ground, the Court found that the sentencing judge had erred. The respondent had been in custody from 11 September 2001 not because of these offences, but because his parole (from a prior armed robbery sentence) had been revoked by the Parole Board for breach. Backdating the sentences to that date effectively credited the respondent with time served in custody for an unrelated matter, which was not a proper basis for the backdating.

On the concurrency ground, the Court found a further error. Although the assault and the taking of the vehicle arose from the same incident, the Court considered them to involve discrete features warranting some accumulation of sentences, consistent with the principles discussed in cases such as Regina v AEM, KEM and MM and Pearce v The Queen. An entirely concurrent structure failed to reflect the separate criminality involved in each offence.

The Court declined to exercise its discretion to dismiss the appeal despite the double jeopardy principle applicable in Crown appeals. It re-sentenced the respondent with appropriate restraint, restructuring the sentences so they ran consecutively rather than concurrently, and commencing from the date of the original sentencing rather than the date of arrest.

Orders Made

  • Appeal allowed.
  • Sentences imposed by Judge Taylor set aside.
  • Finding of special circumstances by the sentencing judge to stand.
  • On Count 3 (taking and driving without consent): fixed term of nine months imprisonment commencing 6 December 2002, expiring 5 September 2003.
  • On Count 2 (assault occasioning actual bodily harm): term of two years imprisonment commencing 6 September 2003, expiring 5 September 2005, with a non-parole period commencing 6 September 2003 and expiring 5 December 2004.
  • Direction that the respondent be released to parole at the expiration of the non-parole period.

Key Takeaways

  • Backdating a sentence to the date of arrest is an error where the offender was in custody during that period for an unrelated reason, such as a parole revocation arising from separate prior offences.
  • Where two offences committed in the same episode involve discrete elements of criminality, an entirely concurrent sentence structure may fail to reflect the full gravity of the offending, and some accumulation may be required.
  • The Court of Criminal Appeal confirmed that double jeopardy remains a significant restraining principle in Crown appeals, but it does not preclude intervention where errors of principle are established and the sentences are manifestly inadequate.
  • Re-sentencing on a Crown appeal requires the appellate court to give full weight to established constraints, including the principle against double jeopardy, even when errors below are found.
  • A finding of special circumstances (which adjusts the ratio of non-parole period to total sentence) can be preserved on re-sentencing where the Crown has not challenged it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(a), 59, 117, 154A(1)(a)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Regina v AEM, KEM and MM [2002] NSWCCA 58
- Regina v Atkin [2001] NSWCCA 54
- Regina v Farra [1999] NSWCCA 283
- Regina v Gorman [2002] NSWCCA 516
- Regina v Ravet [2001] NSWCCA 535