R v Elleissey [1999] NSWCCA 299

New South Wales Court of Criminal Appeal CITATION : R v Elleissey [1999] NSWCCA 299 FILE NUMBER(S) : CCA 60758/98 HEARING DATE(S) : 15/9/99 JUDGMENT DATE : 15 September 1999

PARTIES : P. Ramos for Applicant R. Ellis for Crown JUDGMENT OF : Wood CJ at CL; Simpson J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/1023 LOWER COURT JUDICIAL OFFICER : Downs DCJ

COUNSEL : P. Ramos for Applicant R. Ellis for Crown SOLICITORS : S.E. O'Connor T.A. Murphy CATCHWORDS : CRIMINAL LAW - sentencing - appeal against sentence for armed robbery - whether raises question of principle - whether manifestly excessive - whether appellant should have been givenbenefit of a portion of time spent already in custody for other offences DECISION : Leave to appeal granted. Appeal dismissed

- IN THE COURT OF CRIMINAL APPEAL

No. 60758 of 1998 WOOD CJ at CL SIMPSON J WEDNESDAY 15 SEPTEMBER 1999 Regina v Oussama ELLEISSEY JUDGMENT

1 WOOD CJ at CL: We grant leave to appeal. The appeal is, however, dismissed. It does not raise any question of principle. Pursuant to S21A of the Criminal Appeal Act 1912, the Court's reasons in short form are: 2 The applicant was sentenced to a minimum term of penal servitude for 18 months, and to an additional term of 2 years, in respect of an offence of armed robbery contrary to S97(1) Crimes Act 1900, for which the prescribed maximum penalty is penal servitude for twenty years. 3 The offence involved the robbery of $600 from a newsagency, in the course of which the attendant was threatened with a knife. The offence was committed by reason of the addiction of the applicant to heroin. 4 The sole point of the appeal relates to the circumstance that a sentence was directed to commence at the expiration of a minimum term of 12 months, for two counts of break and enter inter a building with intent to commit a felony, and of a fixed term for 6 months for the offence of having in custody an offensive implement in a public place. 5 It was submitted that since the applicant had been arrested on 7 January, 1998, had pleaded guilty on 19 August 1998, and had been sentenced on 23 October 1998, he should have been given the benefit of, at least, portion of the time served in custody, even though during the entirety of that period he was serving sentences for the other matters which have just been mentioned. 6 We observe that each sentence had less than one month to run when the applicant was in fact sentenced. He had an extensive criminal record disclosing a continuous defiance for the law dating back to 1994. His record included multiple offences of stealing, assault, resist police, break enter and steal, drug related offences, and similar forms of criminality. 7 It was entirely appropriate for his Honour to accumulate the sentences upon the existing sentences, and to extend the additional term in the way that he did, taking into account the special circumstances found relating to the applicant's need to have a lengthy period of supervised rehabilitation, and also the fact of accumulation. 8 Even allowing for the plea of guilty, the sentence was lenient, when considered in the light of the guideline judgment of this court in Henry (1999) NSW CCA 107, and the aggravating circumstances involved in the use of a knife, Wright (1997) 93 A Crim R 48. 9 No error or principle has been identified, and the sentence could not, on any view, be regarded as manifestly excessive. **********