New South Wales Court of Criminal Appeal CITATION : R v El-Hage [2003] NSWCCA 118 revised - 15/05/2003 HEARING DATE(S) : 28 April 2003 JUDGMENT DATE : 28 April 2003 JUDGMENT OF : Hulme J at 23; Simpson J at 1 DECISION : Leave to appeal granted. Appeal dismissed. CATCHWORDS : severity of sentences - pleas of guilty - subjective circumstances - application for leave to appeal LEGISLATION CITED : Crimes Sentencing Procedure Act 1999, Part 3 Division 3, s44 PARTIES : Respondent - Crown Applicant - George El Hage FILE NUMBER(S) : CCA 60023/03 COUNSEL : MC Grogan - Crown A Francis - Applicant SOLICITORS : SE O'Connor - Crown DJ Humphreys - Applicant LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0993 FILE NUMBER(S) : LOWER COURT Backhouse DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60023/03 HULME J SIMPSON J Monday 28 April 2003 REGINA v George EL-HAGE JUDGMENT 1 SIMPSON J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant following his pleas of guilty to two counts of robbery whilst armed with a dangerous weapon and one of assault with intent to rob. In addition, the applicant asked that one count of obtaining money by deception and one of attempting to obtain money by deception be taken into account pursuant to Part 3 Division 3 of the Crimes Sentencing Procedure Act 1999. 2 On the first count, and taking into account the additional offences, the sentencing judge imposed a sentence of imprisonment for two years commencing on 7 December 2001, the date on which it was imposed, and specified a non-parole period of twelve months. On the second count she imposed a term of imprisonment for eighteen months to commence at the expiration of the non-parole period imposed in relation to the first count and specified a non-parole period of nine months. On the last count she imposed a term of imprisonment for fifteen months which again she made cumulative upon the previous counts. On this count she imposed a non-parole period of nine months. Her Honour ordered that all sentences be served by way of periodic detention. 3 Her Honour stated that she found special circumstances within the meaning of s 44 of the Crimes Sentencing Procedure Act justifying departure from the ratio therein specified. However, some attention must be paid to the manner in which she did this. 4 In sentencing the applicant on the first charge she said this: "In respect of charge number one I take into account the offences on the Form 1 and I impose a sentence of two years imprisonment. I find that there are special circumstances for the purpose of setting a non-parole period and the non-parole period that I set in relation to that term of imprisonment is one year". 5 Her Honour did not specify the reasons that she found special circumstances but it is worth noting that when she proceeded to sentence the applicant on the second and third offences she made no mention of special circumstances. 6 The remarks are at least open to the interpretation that the special circumstances found in relation to the first charge were found by reason of her Honour's intention to impose cumulative sentences in relation to the subsequent charges. Certainly there was no reference in the remarks on sentence to any need that the applicant might have to an extended period of supervision on parole. 7 The effective total sentence was one of three years with a non-parole period of two years and six months. Had it been her Honour's intention to find special circumstances on the basis of a need for an extended period of supervision this would have had implications in relation to the grounds argued on appeal. 8 The offences were committed over a period of less than one month in the south-western suburbs of Sydney. The first occurred on 25 May 2001 on a suburban train. The applicant accosted a thirteen year old school boy wielding a folded black pocket knife and demanded his wallet. The victim produced the wallet, the applicant removed a credit card and rail pass and demanded the boy's PIN. When the boy gave him a number the applicant told him that if the PIN was incorrect he would "come after you". He allowed the boy to leave the train. The applicant used the key-card to withdraw $300 from the victim's account. 9 The second offence occurred on 30 May 2001, again on a suburban train. The victim, a twenty one year old male, was travelling on the train to the city. He was accosted by the applicant and a co-offender. The applicant demanded his wallet, producing a flick knife, threatened to stab the victim pressing the point of the knife into his right shoulder. The victim produced a wallet, the applicant removed $20 from it and demanded the victim's telephone. The victim attempted to leave and the applicant grabbed him in a headlock. He took the victim's mobile phone and bank key-card and driver's licence. He asked for the victim's PIN and the victim gave him a false number. The applicant attempted to use the key-card but evidently this was unsuccessful because of the false number. 10 The third offence occurred on 13 June 2001 and involved the same victim as the first offence. This occurred at a railway station where the applicant approached the victim and told him to sit down, take out his wallet and give him $20. The victim said that he had no money and could not give him any and the applicant instructed him to go home and get money from his mother. The applicant walked with the victim to his home and threatened that if he did not provide him with money he would have his friends at the victim's school kill the victim. While the applicant waited outside the victim's mother rang the police. 11 The offences taken into account were the offences of obtaining money from the account of the first victim and attempting to obtain money from the account of the second victim. 12 The applicant was arrested on 13 June 2001 following the incident when he accompanied the victim to his home. He gave a false account of his presence in the vicinity. He was subsequently interviewed about all matters. He made some admissions but then denied being implicated in the offences. Later he admitted withdrawing money from an ATM but said he had found a card with its PIN on it. He admitted being present at the offence of 30 May but denied other involvement. He gave some information to police about the co-offender with whom he committed that offence. subjective circumstances 13 The applicant was born on 20 September 1982 and was eighteen years of age at the date of the offences. He had no prior convictions although he has subsequently been convicted of possession of a prohibited drug and introduction of a small quantity of the drug into a detention centre, of stealing from the person and of common assault. 14 He was born in Melbourne of Lebanese parents. His father died when the applicant was nine years of age. The family is law abiding and there do not appear to have been other encounters with the legal system. 15 Prior to these offences in March 2001 the applicant was diagnosed as suffering from an endogenous depressive illness which appears to have been quite severe. The extent to which the depression is causally related to the offences is uncertain. 16 The applicant's psychiatrist reported that the applicant is "mentally slow". He described him as "somewhat vulnerable and suggestible" and thought it unlikely that the applicant would have had the capacity to initiate the robbery himself. 17 The applicant spent six months in presentence custody before apparently being released on bail and this was taken into account in the sentencing decision. There was some evidence of assistance to authorities and the report of this has been placed in a sealed envelope which the members of this Court have today read. 18 It was also argued and accepted that the applicant was entitled to a discount on sentence, both by reason of his plea of guilty and on the basis of the principles stated in The Queen v Ellis (1986) 6 NSWLR 603. the application for leave to appeal 19 The application for leave to appeal is based upon the manner in which the sentences were imposed and structured. The sentencing judge, as I have mentioned, expressly found special circumstances in relation to the first count, such as to warrant departure from the ratio specified in s 44 of the Crimes (Sentencing Procedure) Act. However, I do not read this as necessarily implying that there was warrant for an enlargement of the overall non-parole period. In fact, the non-parole period that was fixed was very significantly less than that mentioned in s 44. The portion of the sentence to be served by way of custody, on in this occasion in periodic detention, was something like eighty or eighty three per cent of the overall sentence. 20 The Crown has conceded that there was an irregularity in sentencing but has argued that having regard to the number of crimes and their seriousness, any sentence less than that imposed would have been manifestly inadequate. I am of the view that this submission should be accepted. I am further of the view that although there may have been an irregularity it is difficult to be precise about what the sentencing judge intended by her finding of special circumstances. There is nothing in the remarks on sentence which I would take to indicate that her Honour intended that the overall non-parole period be less than seventy five per cent of the total sentence. 21 Another argument that was put before this Court was that given the potential for the sentence to be converted to one of full time custody and given the applicant's assistance to authorities, it would be necessary, if he was sentenced to full time custody, that he serve that sentence in protective custody. This is not a matter that demonstrates error on the part of the sentencing judge. Whatever has happened subsequent to sentence cannot in the ordinary course be taken into account in determining an application such as this. 22 I am not satisfied that error has been demonstrated. I would therefore grant leave to appeal but dismiss the appeal. 23 HULME J: I agree with the orders proposed by her Honour and with her Honour's reasons, accordingly the order of the Court will be as proposed. 24 There is one further matter I should say. The Court directs that the contents of the envelope which were perused by the Court should be again placed in a sealed envelope, not to be opened except by order of a judge. 25 Mr Crown over the next quarter hour or so I will have that done and the envelope given back to you. ********** 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. 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