New South Wales Court of Criminal Appeal CITATION : R v ELKURDI [2001] NSWCCA 240 FILE NUMBER(S) : CCA 60502/00 HEARING DATE(S) : 27/06/2001 JUDGMENT DATE : 27 June 2001 PARTIES : REGINA v Moamar ELKURDI JUDGMENT OF : Barr J at 1; Howie J at 16 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/0102 LOWER COURT JUDICIAL English DCJ OFFICER : COUNSEL : Crown: MC Grogan Applicant: In Person SOLICITORS : Crown: SE O'Connor DECISION : Leave to appeal against sentence granted; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60502/00 BARR J HOWIE J Wednesday, 27 June 2001 REGINA v Moamar ELKURDI JUDGMENT 1 BARR J: Moamar Elkurdi seeks leave to appeal against a sentence imposed upon him in the District Court. On 14 July 2000 Judge English sentenced the applicant to a prison term of five years with a non-parole period of three years for armed robbery. 2 On 11 December 1999 the applicant entered a shop at North Strathfield and asked for change. When the proprietor opened the till the applicant produced a knife and asked for money. There was a struggle and the applicant jumped over the counter, waving the knife in the face of the proprietor. The proprietor sustained superficial injuries. The applicant got away with about $100. Fortunately, the husband of the proprietor heard the noise of the struggle and saw the applicant driving away. He made a note of the registration number of his car. The applicant was identified by that medium and arrested. The proprietor and her husband correctly identified him in an identification parade. His premises were searched and clothing was found similar to that worn by the armed robber. In the car a knife was found similar to that used in the robbery. 3 The applicant pleaded guilty before the magistrate and was committed to the District Court for sentence. 4 He was born on 19 February 1975 and was twenty-five years old when sentenced. He has an extensive criminal history including a conviction for demanding money with menaces and assault. At the time of the present offence he was on bail for assault and shoplifting. He has a long history of drug abuse. He started smoking marijuana at nineteen years of age and started injecting heroin at twenty. He acquired a habit that needed $300 a day. He took cocaine daily and experimented with ecstasy. He used other drugs as well in trying to wean himself off heroin. 5 He was granted legal aid for the plea and his solicitor arranged for him to see a psychiatrist, Dr Ahmed. In due course a report of Dr Ahmed, dated 10 July 2000, was put before the sentencing judge. It contained an account which the applicant had given to the psychiatrist. Dr Ahmed reported that a close friend of the applicant had been shot in 1991 and that his drug intake had become worse after that. Dr Ahmed thought that the applicant did not suffer from any mental illness but suffered from chronic chemical dependence and had done so since 1990. He thought that the applicant was likely to re-offend unless vigorously treated for his drug addiction. 6 The applicant has represented himself before this Court and has made written submissions. The principal complaint appears to be that he received poor legal representation in the sentencing court. He had a barrister. On the day of the sentence hearing another barrister came to speak to him and told him that he now represented him, having spoken to the former barrister. The new barrister then carried on the case but refused to let the applicant give evidence. The applicant told his barrister that he was sorry for having committed the armed robbery but the barrister did not tell this to the Court. 7 There is no evidence of these assertions, and the applicant has not adduced evidence from the barrister who represented him. That barrister is a practitioner of long experience in the conduct of criminal cases in the District Court. Nothing about the facts of this case suggests to me that the applicant ought not be bound by the manner in which his barrister decided to conduct his case. 8 There is no substance in the complaint that the barrister did not tell her Honour that the applicant was sorry. The barrister would have known such expressions, without evidence, are generally afforded little weight. There is nothing about the facts of the case that would have prevented an experienced barrister adequately representing the applicant upon a plea of guilty at short notice. The barrister had a copy of Dr Ahmed's report and the benefit of a conference with the applicant. He would have decided, as barristers are bound to do, whether to call the applicant to give evidence. There are often good reasons why barristers decide not to have their clients give evidence on oath and subject themselves to cross-examination before a sentencing judge. Nothing about the facts of this case leads me to think that the barrister who represented the applicant did not give proper consideration to all these matters and conduct the plea in a manner which was in all the circumstances appropriate. 9 The applicant then complained about Dr Ahmed and said that his report contained a lot of things that he, the applicant, did not say. In fact it appears from the report of Dr Ahmed that he was supplied with copies of the police brief, which would have contained witnesses' statements, and the charge sheet. He also interviewed the applicant. Some of the factual material in the report is clearly extracted from the documents which were furnished to the psychiatrist but other material appears to come from the applicant himself. There is no substance in this complaint. 10 The next complaint is that her Honour mistook the facts in a number of respects. First, her Honour said that the applicant removed the knife from his pocket. The applicant submits in this Court that there was no evidence to support that finding. I consider the matter to be of no importance, but if evidence were needed one could find it in the report of Dr Ahmed. 11 The next was that her Honour stated that the applicant was arrested whilst driving his motor vehicle. In fact, he says, he was not driving it at the time. Whatever the truth of the matter, it is inconsequential. 12 The next matter was that her Honour said the applicant expressed no remorse about the effect of his action on his victims, as opposed to the remorse for the shame he had brought upon his family. In fact, her Honour was referring to a passage in Dr Ahmed's report. There is no substance in this complaint. 13 In my opinion no error has been demonstrated on her Honour's part. The sentence imposed was within the range of the proper sentencing discretion of the Court. 14 The applicant has raised for this Court's consideration a number of matters which had taken place since sentence was passed. He says that he has now rid himself of drugs, has participated willingly and successfully in programs which have been offered to him within the corrective system, and is well on the way to rehabilitation. He also says something about an incident in which he injured himself in order to be placed in more secure custody because he thought he was in danger, and about an attack made on him. It is important for the applicant to understand that this is not a sentencing court, but a court which has power to re-sentence only if error is demonstrated upon the part of the sentencing judge. Since the applicant has demonstrated no error these latter matters are not ones which with the Court may take into account. 15 I would grant leave to appeal against the sentence, but would dismiss the appeal. 16 HOWIE J: I agree. 17 BARR J: The orders are 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.