El Katrib v R [2022] NSWCCA 266

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: El Katrib v R [2022] NSWCCA 266 Hearing dates: 11 October 2022 Decision date: 15 December 2022 Before: Macfarlan JA at [1]; Button J at [2]; Wilson J at [67] Decision: (1) Leave to appeal granted. (2) Appeal against sentence dismissed. Catchwords: CRIME – Appeals – Appeal against sentence – Parity – Joint criminal enterprise – Where differing degrees of involvement in offending – Where significant differences in subjective features in mitigation – Where all factual findings of sentencing judge open – Leave to appeal granted and appeal dismissed Cases Cited: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 4 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Category: Principal judgment Parties: George El Katrib (Applicant) Rex (Respondent) Representation: Counsel: N Mikhaiel (Applicant) C O Gleeson (Respondent)

Solicitors: Macquarie Law Group (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2020/269322 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 11 March 2022 Before: Craigie SC DCJ File Number(s): 2020/269322

HEADNOTE [This headnote is not to be read as part of the judgment] Mr El Katrib (the applicant) sought leave to appeal against sentence imposed on him on 11 March 2022 by Judge Craigie SC in the District Court. The applicant was sentenced to a term of imprisonment for 5 years 3 months with a non-parole period of 3 years 6 months for one offence of specially aggravated detaining a person for advantage, committed by way of joint criminal enterprise with four other co-offenders. He and three other co-offenders who pleaded guilty early – and were thereby entitled to a discount of 25% - were sentenced on the same day, and another was sentenced subsequently, having pleaded guilty at a later date, and being entitled to a discount of 10%. The applicant pressed a single ground of appeal, submitting that he had a justifiable sense of grievance having regard to the sentences imposed on his co-offenders. Two key submissions were advanced in support of the ground of appeal. First, that his lesser degree of involvement in the serious offending combined with his relatively weaker subjective case meant that his sentence should be more comparable with the female co-offender who had been present for a longer period of the offending, but a significantly more profound subjective case. This co-offender received a head sentence of 3 years 3 months with a non-parole period of 1 year 6 months. Secondly, and somewhat in the alternative, that the applicant's sentence should have been considerably less than a co-offender with a significantly more violent and objectively serious role in the offending, but with whom the applicant who shared some subjective characteristics. The Court held, dismissing the appeal (per Button J, Macfarlan JA and Wilson J agreeing): 1. The varying degrees of involvement by the five co-offenders, and findings made as to subjective features in mitigation, engaged the discretionary, evaluative assessment of the sentencing judge. Relatedly, factual findings of the sentencing judge with regard to the applicant's lack of insight and remorse were open on the evidence: [53], [56]-[58] (Button J); [1] (Macfarlan JA); [67] (Wilson J). 2. Where a single judge sentences all co-offenders in a joint criminal enterprise, and thereby engages with the question of parity, it will be more difficult for an applicant to impugn this process of instinctive synthesis: [59] (Button J); [1] (Macfarlan JA); [67] (Wilson J).