New South Wales Court of Criminal Appeal CITATION : Regina v Farra [1999] NSWCCA 283 FILE NUMBER(S) : CCA 60713/98 HEARING DATE(S) : 13 September 1999 JUDGMENT DATE : 15 September 1999 PARTIES : Regina Fadi El Farra JUDGMENT OF : Sully J; Simpson J LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/2083 LOWER COURT JUDICIAL OFFICER : O'Reilly DCJ COUNSEL : C.K. Maxwell QC - Crown J.P. Punch - Applicant SOLICITORS : S. E. O'Connell - Crown CATCHWORDS : - ACTS CITED : Crimes Act Sentencing Act CASES CITED: - DECISION : Leave to appeal granted.; Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60713/98 SULLY J SIMPSON J 13 September 1999 REGINA v Fadi El FARRA JUDGMENT 1 SULLY J: This is an application for leave to appeal against sentences that were imposed upon the applicant, Mr Sadi El Farra, in the Liverpool District Court by his Honour O'Reilly DCJ on 21 October 1998 2 The applicant had been presented before his Honour charged with five separate and serious offences. Three of those offences each involved a charge of robbery being armed with an offensive weapon. Such offence contravenes s 97(1) of the Crimes Act, 1900 and it attracts upon conviction a statutory maximum penalty of penal servitude for twenty years. 3 A fourth count charged the offence of robbery, that is to say robbery not being armed with an offensive weapon, an offence which contravenes s 94 of the Crimes Act, 1900 and attracts upon conviction a statutory maximum penalty of penal servitude for fourteen years. 4 In connection with one of the robbery matters charged against the applicant there was preferred against him a charge of kidnapping in contravention of s 90A of the Crimes Act, an offence attracting upon conviction a statutory maximum penalty of penal servitude for fourteen years. 5 One of the offences was committed on 10 February 1998, the second on the 13th of the same month, the related third and fourth charges on the 14th of the same month, and the final matter on the 20th of the same month. 6 So far as concerns the three charges of robbery being armed with an offensive weapon, each of them, put simply, involved the robbery at knifepoint of three separate young persons who were, so far as the evidence extends, going about their lawful concerns. 7 The fourth robbery, that is to say the one charged without the aggravating circumstance of being armed with an offensive weapon, and the related kidnapping count, involved also the gratuitous interference with the liberty and property of another young citizen going about his lawful affairs. 8 The learned sentencing Judge dealt with these matters in the following way: upon one of the counts of robbery being armed with an offensive weapon, his Honour sentenced the applicant to penal servitude for five years, apportioning the sentence between a minimum term of three years and an additional term of two years. As to each of the other matters charged against the applicant, his Honour imposed a fixed term of penal servitude for three years, dating those sentences so as to make service of them concurrent with the sentence imposed in respect of the first matter. 9 The applicant seeks leave to appeal against those sentences contending that they are manifestly excessive so as to attract, according to proper principles correctly applied, the intervention of this Court. 10 It is conceded, and in my respectful submission correctly so, that the aggregate sentence of penal servitude for five years cannot be attacked successfully as being manifestly excessive in the relevant sense. It is contended, however, that the learned sentencing Judge erred in his Honour's approach to the apportionment of that sentence. It is contended, put shortly, that his Honour both could and should have found "special circumstances" in the sense contemplated by s 5(2) of the Sentencing Act, and should have so found "special circumstances" in terms entailing a much more favourable apportionment of the effective sentence of five years than the apportionment to which I have earlier referred. 11 Having regard to the way in which the submissions for the applicant have been put, it is I think desirable to note, however briefly, the following matters. The first relevant question for this Court is whether there has been demonstrated error on the part of the sentencing Judge. It is not to the point to postulate matters which, had they come to the attention of the Judges of this Court as the primary sentencing Judges, might have yielded a result different to that of which the present complaint is made. The fundamental question, I repeat, is whether there has been demonstrated in the relevant sense error on the part of the sentencing Judge. 12 The only error to which, in the end, the submissions for the applicant point, is error in that the sentencing Judge, it is submitted, although his Honour expressly found "special circumstances"; found them in a way which did not properly take into account evidence that had been placed before his Honour from the applicant's father. 13 It can be said at once that that was evidence of weight having regard to the fact that his Honour did not hesitate to accept the applicant's father as a witness of credit and substance. The evidence given by the applicant's father was to the effect that he, the father, had taken for some years an active part in attempts to keep his son out of a life of crime, to which the son appeared to be descending with some purpose; and that the father was prepared to continue such rehabilitation even to the point of assisting to have the applicant sent to relatives out of the country in the hope that that would cement into place his proper rehabilitation. 14 I think that a fair reading of the remarks on sentence indicates that the sentencing Judge accepted the reliability of what the father had told him, but took the view that the past history of the applicant warranted, to say the least, a degree of healthy scepticism as to whether or not the further assistance of the father, however well intentioned, was going to be of itself enough finally to rehabilitate the applicant. 15 His Honour had, as I respectfully think, a difficult practical balancing exercise to perform. The offences in question were, as his Honour pointed out, - quite correctly in my respectful view, - extremely serious offences. It cannot be said too often or too strongly that individual members of the community are entitled, not as a privilege, but as a right to go about their lawful affairs without being detained and robbed at knifepoint, or at all. I think that his Honour correctly assessed the relevant subjective features. I think his Honour was entitled to feel, as I have earlier said, a degree of healthy scepticism about the prospects of rehabilitation as they had been sketched for him in the evidence of the applicant's father. 16 If it be accepted, -and it must be, - that the aggregate sentence itself is not vulnerable to present attack, then it seems to me that it cannot be fairly said that his Honour has been shown to have erred at all in his approach to the apportionment of that sentence as between minimum and additional terms. 17 I say again: the question is not whether the Judges of this Court, had they been the primary sentencing Judges, would have come to the same result. The question is whether the result reached by the primary Judge has been shown to be in error. I am of the view that there has been no error shown. 18 I would grant the application for leave to appeal but dismiss the substantive appeal. 19 SIMPSON J: I agree. 20 SULLY: The orders will be as I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.