Regina v El-Youssef [2000] NSWCCA 481

New South Wales Court of Criminal Appeal

CITATION : Regina v El-Youssef [2000] NSWCCA 481 FILE NUMBER(S) : CCA 60850/98 HEARING DATE(S) : 20/11/00 JUDGMENT DATE : 15 December 2000

PARTIES : Regina v Elie El-Youssef JUDGMENT OF : Barr J at 1; Carruthers AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/2120 LOWER COURT JUDICIAL O'Reilly DCJ OFFICER :

COUNSEL : (Applicant): G Nicholson QC (Crown): P G Berman SC SOLICITORS : (Applicant): Patricia White & Associates (Crown): S E O'Connor CATCHWORDS : Sentencing - severity appeal - five counts of robbery in company on indictment and four counts of robbery in company on a Form 1 - "an enormous criminal enterprise" - no question of principle. LEGISLATION CITED : Crimes Act 1900 Sentencing Act 1989 R v Tran (1999) NSWCCA 109 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 R v Valentini 46 A Crim R 23 DECISION : Leave to appeal granted. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

60850/98 BARR J CARRUTHERS AJ

Friday, 15 December 2000 REGINA v Elie EL-YOUSSEF

JUDGMENT

1 BARR J: I agree with Carruthers AJ. 2 CARRUTHERS AJ: Elie El-Youssef seeks leave to appeal against the severity of sentences imposed upon him by Judge O'Reilly QC at the Liverpool District Court on 15 December 1998. 3 The applicant had earlier pleaded guilty to an indictment containing five counts of robbery in company under s 97(1) of the Crimes Act, 1900 (the Act). His Honour also took into account, at the applicant's request, four offences of robbery in company by way of a prescribed Form 1. 4 His Honour imposed, on the first count, an overall sentence of ten years imprisonment with a minimum term of seven years to commence on 26 May 1998 and to expire on 25 May 2005 and an additional term of three years to commence on 26 May 2005. With regard to counts 2 to 5, his Honour imposed concurrent fixed terms of seven years imprisonment to commence on 26 May 1998 and to expire on 25 May 2005. The Form 1 matters were taken into account in passing sentence on the first count. 5 His Honour found special circumstances for the purposes of s 5(2) of the Sentencing Act 1989 based upon the applicant's perceived need for a full three years of parole supervision "to help him settle down and make absolutely certain he has dealt with his drug problem." This perceived need for extended supervision was not challenged by the applicant in this Court. 6 The maximum penalty prescribed for the subject offence is twenty years imprisonment. 7 The applicant was born in Spain on 16 October 1966 and arrived in Australia with his parents in about 1970. His father died in 1986 and his mother is still alive but, unfortunately, because of a stroke, she is now a paraplegic with little or no speech. 8 The applicant obtained the Higher School Certificate and, having found employment with the State Rail Authority, became a Track Engineer which is a responsible position. 9 However, in 1988 he suffered a severe injury to his left knee which rendered him unfit to continue his employment with the Rail Authority, and it is said that this became a catalyst for his future criminal activity. 10 The knee injury left him with continuing pain which, it is further said, led to addiction to narcotic substances. 11 The applicant contends that he committed the subject offences to obtain funds to support this addiction which at the time of the offences was costing him $200 per day. I note that there was a pre-sentence report dated 8 December 1998 before his Honour under the hand of Peter Lewis, Probation and Parole Officer, which states "he [the applicant] suggested the money he had obtained from the offences was spent on the purchase of drugs and gambling." 12 Prior to the subject matters, the applicant had served a sentence by way of a fixed term of six months imprisonment in 1995 for stealing and a further fixed term of twelve months between October 1995 and October 1996 for larceny. 13 On 23 October 1995 the applicant was sentenced to a minimum term of eighteen months to commence on 23 October 1995 and an additional term of twelve months to commence on 23 April 1997 and to expire on 22 April 1998. This was with respect to a conviction at the Sydney District Court for break, enter and steal. 14 The applicant had been admitted to parole on 23 April 1997 and thus was on parole during the commission of the subject series of offences, with the exception of the last offence, which was committed on 28 April 1998. 15 His Honour described this series of offences as "an enormous criminal enterprise". No challenge could be made to this description. 16 Dealing first with the matters in the Indictment. They all involved robbery in company of banks in the western suburbs of Sydney. 17 As to count 1 which occurred on 16 December 1997, the applicant was in company with three co-offenders, one of whom was armed with a 9mm pistol. Count 2 occurred on 30 September 1997 and there was one co-offender who was armed with a 9 mm pistol. Count 3 occurred on 4 November 1997. The applicant was with one co-offender but neither was armed. Count 4 occurred on 17 March 1998. There was one co-offender armed with a small calibre pistol. Count 5 occurred on 28 April 1998 when the applicant was in company with one co-offender who was armed with a knife. This was the most serious of the offences. 18 A total sum of $233,866 was taken and only a modest sum was recovered when the applicant was arrested. On all occasions the applicant and his co-offenders were disguised and members of the staff of the various banks were threatened. The money was generally shared equally, it would appear, between the co-offenders. The maximum stolen from one bank was $108,794 (count 1). 19 The four matters on Form 1 involved three robberies in company of post offices in the suburbs and one offence involved the robbery of a bank. With the exception of that last-mentioned matter, which occurred on 17 November 1997, either the applicant or his co-offender was armed. 20 It is important to note the following remarks on sentence by his Honour: "I looked at the section 97(1) statistics myself and found that in eighty eight cases the overall sentence ranged from three years to eight years. Plainly, where I am dealing with nine offences, one would be heading towards the top of that range. There was only one case where the overall sentence was fourteen years, and in only two per cent of cases was the overall sentence twelve years. So that is some guide to me. Mr Dalton makes the point that the plea of guilty has a considerable value, and indeed it has."