New South Wales Court of Criminal Appeal CITATION : Regina v El-Farra [2003] NSWCCA 140 revised - 19/05/2003 HEARING DATE(S) : 5 May 2003 JUDGMENT DATE : 5 May 2003 JUDGMENT OF : Giles JA at 1, 38, 40; Bell J at 39; Carruthers AJ at 2 DECISION : Appeal allowed. See par 37 of judgment. CATCHWORDS : Sentencing - Crown appeal against manifest inadequacy - whether sentencing judge erred in backdating sentences to date of arrest - whether judge erred in imposing concurrent sentences. LEGISLATION CITED : Crimes Act 1900, s 35(a), s 117, s 154A(1)(a), Pearce v The Queen (1998) 194 CLR 610 Regina v AEM, KEM and MM [2002] NSWCCA 58 CASES CITED : Regina v Atkin [2001] NSWCCA 54 Regina v Farra [1999] NSWCCA 283 Regina v Gorman [2002] NSWCCA 516 Regina v Ravet [2001] NSWCCA 535 PARTIES : Regina v Fadi El-Farra FILE NUMBER(S) : CCA 60035/03 COUNSEL : Crown - P.G. Ingram Respondent - G.J. Stanton SOLICITORS : Crown - S.E. O'Connor Respondent - N/A LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0208 FILE NUMBER(S) : LOWER COURT His Honour Judge Taylor JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60035/03 GILES JA BELL J CARRUTHERS AJ Monday, 5 May 2003 REGINA v Fadi EL-FARRA Judgment 1 GILES JA: We are in a position to deal with the matter immediately. I ask Carruthers AJ to give the first reasons. 2 CARRUTHERS AJ: The Director of Public Prosecutions appeals against sentences imposed upon Fadi El-Farra (the respondent) by his Honour Judge Taylor at the Sydney District Court on 6 December 2002, on the ground of alleged inadequacy. 3 On 11 February 2003 the Notice of Appeal was served on the respondent. 4 On 17 June 2002 an indictment containing three counts was presented against the respondent in the Sydney District Court. The first count pleaded an offence of malicious wounding contrary to s 35(a) of the Crimes Act 1900 (the Act). The second count pleaded an offence of assault occasioning actual bodily harm contrary to s 59 of the Act. This count was pleaded in the alternative to the first count. 5 The third count was an offence of take and drive a conveyance without the consent of the owner contrary to s 154A(1)(a) of the Act. 6 On 17 June 2002 the respondent pleaded not guilty to the first count but guilty to the alternative second count and guilty to the third count. The Crown accepted those pleas of guilty in full satisfaction of the indictment. 7 The maximum penalty prescribed for an offence of assault occasioning actual bodily harm is imprisonment for a term of five years. The maximum penalty prescribed for an offence of take and drive a conveyance without the consent of the owner is imprisonment for five years: see ss 154A(1)/117 of the Act. 8 On 6 December 2002 his Honour Judge Taylor sentenced the respondent. On the second count the respondent was sentenced to a term of imprisonment for two years and six months to date from 11 September 2001. A non-parole period of twenty months was imposed to date from 11 September 2001 and to expire on 10 May 2003. 9 On the third count the respondent was sentenced to a fixed term of imprisonment for nine months to date from 11 September 2001. Thus, both sentences were to be served concurrently. 10 To appreciate the significance of the sentences being backdated to 11 September 2001, it is necessary to consider briefly the following historical background. 11 A convenient starting point is 21 October 1998 when the respondent was sentenced at the Liverpool District Court in relation to three offences of armed robbery, one offence of robbery and one offence of detain for advantage. The total effective sentence imposed for all those offences was imprisonment for a term of five years constituted by a minimum term of three years to date from 5 June 1998 to 4 June 2001 and an additional term of two years to date from 4 June 2001. On 4 June 2001 the respondent was released to parole in relation to these offences. 12 The offences the subject of this appeal were committed on 11 September 2001. On that date the respondent was arrested and taken back into custody. On 6 June 2001 the parole order granted on 4 June 2001 was revoked by the Parole Board. The circumstances under which that parole was revoked are to be found in a Probation and Parole Service pre-sentence report dated 19 July 2002 under the hand of Mr Peter Poole, Probation and Parole Officer, Bankstown District Office. It is convenient to quote the following passage from Mr Poole's report: "On 4 June 2001, Mr El-Farra was released from prison after serving three years for 'Armed Robbery' offences. His Parole Order was to expire on 4 June 2003. The offender was supervised by this Service prior to his arrest on the current matters. Although Mr El-Farra's initial response to supervision appeared to be satisfactory, he subsequently became tardy in his reporting and he was withdrawn from an AOD group course conducted at the Bankstown District Office due to non-compliance and disruptive behaviour. A Breach Report was submitted to the Parole Board on 25 October 2001, and Mr El-Farra is currently serving a sentence of one year nine months and 28 days for 'Breach of Parole'." 13 Before this Court the Crown argued that his Honour erred by imposing a sentence in relation to count 3 that was to be served entirely concurrently with the sentence to be served in relation to count 2. Further, his Honour erred by backdating the sentences on counts 2 and 3 to commence on 11 September 2001. 14 The respondent was born in Australia on 10 August 1977 of Lebanese parents. Prior to the sentences which were imposed on 21 October 1998, the respondent had been dealt with on three occasions at Local Courts. On 13 November 1996 he served a term of imprisonment for three months in relation to certain offences including a break, enter and steal. 15 As to the present offences his Honour made the following findings. At about 11.30 am on 11 September 2001 the victim was on a business related visit to a furniture store situated in Parramatta Road, Camperdown. He parked his 1999 model Mercedes Benz on Parramatta Road opposite the store. The vehicle was locked and secured. 16 After attending to his business at the store, the victim returned to his vehicle, unlocked it by use of a remote control device and entered the vehicle. As the victim closed the door and was putting on his seat belt, the respondent entered the vehicle via the passenger door. He sat next to the victim and closed the door. The victim yelled out. The respondent produce a thirty centimetre long screwdriver and holding it in a threatening manner, said to the victim "Drive". The victim said "Okay, I'm driving" and proceeded to start the car. The respondent then said "I'm driving or I'll stab you". 17 In his remarks on sentence, the learned sentencing judge quoted the following passage from the victim's statement: "... the offender lunged at me with the screwdriver and tried to stab me with the screwdriver. I quickly leant back towards the driver's door, but the screwdriver still made contact with my throat, and the impact caused my head to tilt back even further. At this stage I felt pain to my throat. I was very scared and generally feared that I may be killed or badly injured." 18 The victim, in fear for his safety, then jumped out of the driver's seat and ran across Parramatta Road to the furniture store. As he did this he heard the car accelerate away from the scene. The victim contacted police via the emergency number, a radio broadcast was made and police sighted the vehicle travelling west along Parramatta Road near the intersection of Burwood Road at Burwood. Police followed the vehicle. 19 The vehicle stopped in a right hand turning lane approaching the intersection of Concord Road. At that point the respondent left the car, leaving the driver's door open and ran across Parramatta Road. The police followed the respondent on foot, keeping him within sight. 20 The respondent made a determined effort to escape but was eventually overtaken and overpowered by the police. When the police backtracked the route of the pursuit, they located the respondent's jumper along with the screwdriver. The respondent was taken into custody. Bail was refused. 21 The doctor who examined the victim on 12 September 2001 noted that he had suffered a seven millimetre superficial laceration to his throat area. There was evidence of a break in the skin and a small amount of blood in the wound. The doctor also noted that at the time of the examination the victim was anxious, upset and hypertensive. 22 Psychiatric reports before his Honour expressed the view that the respondent had a mild depressive disorder and severe personality problems. Professor Greenberg expressed the view that the respondent's prognosis is guarded unless there is a marked change in his behaviour. 23 There was a history of polysubstance abuse by the respondent but at the time of the hearing the respondent asserted that this was no longer a problem. 24 In his remarks on sentence, his Honour noted that there were a number of aggravating circumstances, namely, that the respondent was on parole at the time of the offence, that parole related to "a previous robbery" [strictly, previous robberies]. His Honour added that the method of the offences to his mind showed premeditation and the fact that they happened so suddenly did not indicate impulsiveness but rather clever timing on the part of the respondent, who took the opportunity once the driver had deactivated the locking system by remote control, to enter the vehicle as the victim was just seated. There was further indication of premeditation, in his Honour's view, in that the respondent was bent on obtaining some money quickly to meet a drug debt and that the screwdriver itself was sharpened. 25 His Honour found that there were special circumstances which justified a slight adjustment to the relationship between the non-parole period and the sentence. Presumably, his Honour had in mind here his belief that there was some possibility of rehabilitation. His Honour indicated that the non-parole period which he selected should give the Parole Service sufficient time to build on the slight progress that had occurred so far. His Honour also took into account the respondent's age and a recommendation by one of the psychiatrists that the respondent have drug and alcohol counselling in prison and also upon his release, because of the tendency for drug addiction to be a relapsing problem. 26 With regard to the submission by counsel for the respondent that the sentences should be backdated, his Honour said: "I have given consideration to the backdating of the sentence. The situation that the offender is in is that, for what appear to have been relatively minor breaches of his parole, it was revoked. This was not challenged by him because of the fact that he was on bail refused on this matter. I am informed by his counsel that the Parole Board has not finally determined the matter, it having been adjourned from time to time because of the matters that I am dealing with. It seems to me in these circumstances that the sentence should be backdated to 11 September 2001. The Crown does not offer any resistance to that submission made by the offender." 27 It is true that during the course of submissions by counsel for the Crown before his Honour, no reference was made to the submission by counsel for the respondent that the sentences be backdated. In this regard it is important, as was pointed out by the presiding judge during the course of argument, to look at the actual course of events and what was said during the sentencing process. 28 Mr Stanton, who appeared for the respondent before this Court and who also appeared for him before Taylor DCJ, specifically asked that the sentences be backdated. At page 6 of the transcript of the proceedings on sentence, one notes that Mr Stanton said: "STANTON: It is a matter where I have acknowledged a custodial sentence should flow. HIS HONOUR: He is entitled to the sentence to be backdated to the date of the commission of the offence and the date of his arrest, which was 11 September last year. STANTON: What as I understand will now happen in the usual course of events, your Honour will sentence him, his issues if any in respect of the Parole Board will be a matter for them to determine, a sentence having been imposed. HIS HONOUR: Mr Crown, is there anything you need to say?" 29 The particular terminology that his Honour there used is of importance. Mr Gibson, who appeared for the Crown before his Honour, then made certain submissions mainly related to the alleged seriousness of the offences, the fact that, in the Crown submission, there was no evidence that the respondent was "at the crossroads", and that there was a lack of contrition on the part of the respondent. Therefore, Mr Gibson submitted, his Honour would not find special circumstances. 30 In his concise but helpful submissions Mr Stanton, on behalf of the respondent, submitted that the Crown should be taken to have acquiesced, because of the events that I have just related, to his Honour backdating the sentences to 11 September 2001. I am unable, with respect, to accept this submission. Further, in my view, the case upon which Mr Stanton heavily relied, namely the judgment of this Court in Regina v Atkin [2001] NSWCCA 54 is to be distinguished from the circumstances in the present case. The remarks of Howie J, speaking on behalf of the Court in that case, have no relevance to the specific situation that arose in this case. Particularly when one gives full weight to the particular terminology that his Honour used when addressing Crown counsel before him, I am quite unable to conclude that the fact that the Crown did not specifically submit that the sentences should not be backdated to 11 September 2001 could be possibly taken as a concession on behalf of the Crown that that was an appropriate course for his Honour to follow. Accordingly I would reject the submission that has been made before this Court in that particular respect. 31 In my respectful view the Crown submission that the sentences that were imposed, backdated as they were, did not reflect the serious nature of the subjective offences or the aggravating circumstances arising from the fact that they were committed as a serious breach of parole is made out. The principles regarding breaches of parole are well established and reference may be made again to Atkin at [28] and [29] and Regina v Ravet [2001] NSWCCA 535 at [34], [41] and [45]. 32 Due regard must be given to the fact that the Parole Board resolved that the respondent's conduct was such as to justify revocation of his parole on 6 November 2001. It must not be overlooked that the parole which was breached was referable to a two year additional term that had been imposed in relation to three offences of armed robbery and one each of robbery and detain for advantage (see Regina v Farra [1999] NSWCCA 283 at [15] and [19] of the judgments of this Court when the appeal against the sentences imposed on Mr Farra in relation to those offences was dismissed.) 33 I also agree with the Crown submission to this Court that upon the facts of this particular case, the learned sentencing judge erred by imposing a sentence in relation to count 3 that was to be served entirely concurrently with the sentence to be served in relation to count 2. In this regard, if I may respectfully say so, his Honour did not pay sufficient regard to the principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610 and Regina v AEM, KEM and MM [2002] NSWCCA 58 and more recently Regina v Gorman [2002] NSWCCA 516. 34 In relation to whether sentences should be imposed concurrently or cumulatively this Court (Beazley JA, Wood CJ at CL and Sully J) said, inter alia, in Regina v AEM, KEM and MM at [87-90]: "But whatever the source of her Honour's error, it was necessary for her to determine whether there were discrete features of the individual offences which required accumulation at least in part." 35 It was argued by Mr Stanton forcefully that these two offences involved one single episode of criminality. Difficult questions of fact and degree often arise in determining whether particular offences can fairly and accurately be considered for sentencing purposes as falling within one episode of criminality. In this particular case, however, considering the particular facts in question there were clearly, in my view, discrete features of the individual offences in the way in which that phrase was used in AEM. The discrete features may be discerned sufficiently from the brief outline of the facts to which I have already referred. 36 In my view, therefore, the Crown submissions in relation to both grounds of appeal have been made out. What then is to be done? This is not a case that would justify the Court exercising its discretion to dismiss the appeal. However, in re-sentencing the respondent this Court must of course give full weight to the principle of double jeopardy and the well-established restraints upon this Court in re-sentencing upon a Crown appeal. 37 For the reasons that I have given I would propose the following orders: 1. The appeal be allowed. 2. The sentences imposed by his Honour be set aside. 3. So far as re-sentencing is concerned:, that the finding of special circumstances by his Honour should stand, bearing in mind there was no argument to the contrary by the Crown. 4. As to the proposed fresh sentences: first, the respondent be sentenced in relation to the third count, taking and driving a conveyance without consent, to a period of imprisonment for nine months to commence on 6 December 2002 and to expire on 5 September 2003. 5. With regard to the second count, assault occasioning actual bodily harm, the respondent be sentenced to a term of imprisonment for two years to commence on 6 September 2003 and to expire on 5 September 2005. 6. In relation to the second count I would specify a non-parole period to commence on 6 September 2003 and to expire on 5 December 2004 and direct that the respondent be released to parole at the expiration of the non-parole period. 7. The reason I have not proposed a non-parole period in relation to the third count is because of the accumulation of the sentence in relation to the second count upon the sentence imposed in relation to the third count. 38 GILES JA: I agree with the orders proposed by Carruthers AJ and with his Honour's reasons and direction as proposed. 39 BELL J: I also agree. 40 GILES JA: The orders and direction as proposed will therefore be the order and direction of the Court. ********** Last Modified: 05/20/2003 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.