R v Elkhouri [2001] NSWCCA 277

New South Wales Court of Criminal Appeal

CITATION : R v Elkhouri [2001] NSWCCA 277 FILE NUMBER(S) : CCA 60822/00; 60128/01 HEARING DATE(S) : 13 July 2001 JUDGMENT DATE : 13 July 2001

PARTIES : Regina Christopher Elkhouri JUDGMENT OF : Simpson J at 28; Sperling J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0341; 00/21/0180 LOWER COURT JUDICIAL Shillington DCJ & Karpin DCJ OFFICER :

COUNSEL : D M Woodburne for the Crown K G Horler QC for the Appellant SOLICITORS : S E O'Connor for the Director of Public Prosecutions Otto Stichler & Associates for the Appellant CATCHWORDS : Criminal Law - sentencing - judicial notice of prevalence of crimes of a particular kind - otherwise, no question of principle CASES CITED: A [1999] NSWCCA 61 Brenton (NSWCCA, 14 November 1994, unreported) DECISION : Leave to appeal granted in both matters and the appeal in each case dismissed.

- 1 -IN THE COURT OF CRIMINAL APPEAL

Simpson J Sperling J

Friday 13 July 2001

60822/00 & 60128/01 Christopher El Khouri v Regina

Judgment

1 SPERLING J: The applicant, having pleaded not guilty, was convicted on 24 November 2000 at a trial before Shillington DCJ on one count of break, enter and steal. The offence involved the theft of a motor vehicle on 29 March 1999. On 2 February 2001, Shillington DCJ sentenced the applicant to a term of imprisonment of two years and six months from 24 November 2000 with a non-parole period of one year and eleven months, expiring on 23 October 2002. 2 On 23 February 2001, three weeks after receiving that first sentence, the applicant was sentenced by Karpin DCJ following pleas of guilty to three counts of receiving - again, motor vehicles. Two similar offences were taken into account on Form 1. 3 Karpin DCJ had before her the evidence adduced before Shillington DCJ and his remarks on sentence, together with further evidence adduced before her. She recognised that the principle of totality applied on the basis that all the offences were part of the same course of conduct. In relation to the first of the counts before her and taking into account the two offences on Form 1, she imposed a sentence of imprisonment for four years dating from 24 November 2000 with a non-parole period of two years and six months expiring on 23 May 2003. Her Honour imposed lesser sentences for the offences under the remaining counts before her, these to be served concurrently. 4 Shillington DCJ's sentence became a concurrent sentence expiring earlier than the sentence imposed by her Honour. His sentence was, in effect, replaced by the sentences imposed by her Honour and it ceased to have any practical significance so far as imprisonment of the appellant was concerned. 5 The appellant seeks leave to appeal against the sentence imposed by Shillington DCJ and the sentences imposed by Karpin DCJ. 6 The sentence by Karpin DCJ under the first count before her was intended to reflect the whole of the applicant's culpability for the course of conduct comprised by all the offences, including the break-enter offence for which the applicant was sentenced by Shillington DCJ. Accordingly, if the sentencing by Karpin DCJ is free of error, that is the end of the matter. Any error by Shillington DCJ will have resulted in no injustice warranting action by this court because it will have had no effect on the ultimate result, unless Karpin DCJ was influenced by any such error.