Eli EL-YOUSSEF v R [2010] NSWCCA 4

New South Wales Court of Criminal Appeal

CITATION: Eli EL-YOUSSEF v R [2010] NSWCCA 4

HEARING DATE(S): 17/12/2009

JUDGMENT DATE: 10 February 2010

JUDGMENT OF: Tobias JA at 1; Hidden J at 2; Howie J at 3

DECISION: Application for leave to appeal is granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Sentencing - inappropriate use of Form 1 - no other matter of principle.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 44

CATEGORY: Principal judgment

CASES CITED : Eedens v R [2009] NSWCCA 254 CP v R [2009] NSWCCA 291

PARTIES: Eli El-Youssef v Regina

FILE NUMBER(S): CCA 2007/8732

COUNSEL: P Leask - Crown In person - Applicant

SOLICITORS: S Cavanagh - Crown In person - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/0161

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 14/03/2008

IN THE COURT OF CRIMINAL APPEAL 2007/8732

TOBIAS JA HIDDEN J HOWIE J

WEDNESDAY 10 FEBRUARY 2010 Eli EL-YOUSSEF v Regina Judgment 1 TOBIAS JA: I agree with Howie J. 2 HIDDEN J: I agree with Howie J. 3 HOWIE J: The applicant was sentenced in the District Court by Hulme DCJ (as his Honour then was) for a number of dishonesty offences. He had pleaded guilty to two counts of robbery, one count of larceny from the person and one count of robbery while armed with a dangerous weapon. In respect of that last offence the Judge was asked to take into account a further five matters on a Form 1: being two offences of larceny from the person; an offence of armed robbery; an offence of robbery; and an offence of drive conveyance without consent. 4 Each of the offences on the indictment, except that in the fourth count, carried a maximum penalty of imprisonment for 14 years. The fourth count carried a maximum penalty of 25 years imprisonment. 5 On 14 March 2008 the applicant was sentenced to a total effective term of 11 years with an overall non-parole period of 8 years 3 months. The sentences were dated from 12 November 2007, the date upon which the pleas of guilty were entered, and the applicant is eligible for release to parole on 31 January 2016. 6 The applicant was unrepresented before this Court. He had filed grounds and written submissions with the Registrar prior to the hearing. He placed further written material and made oral submissions before the Court at the hearing. He appeared to be intelligent and articulate. 7 The first count related to a robbery committed on a pharmacy on 27 September 2006. The applicant waited until the cash register was opened and attempted to snatch notes from the drawer. The pharmacist closed the drawer trapping the applicant's hand. He threatened the pharmacist with his other fist and the till was opened. The applicant escaped with $450. 8 The next offence was a stealing from the person taken into account on the Form 1. On 29 September the applicant entered a pharmacy. He waited until the till was opened and then went to the staff side of the counter ordering the persons to "stand back". He then took $260 in cash from the till. 9 The third offence was committed on 7 October and was an armed robbery taken into account on the Form 1. The applicant armed with a rifle entered a service station and threatened to shoot the attendant and a member of the public unless he was given money. He received $400. 10 The fourth offence was a stealing from the person taken into account on the Form 1. On 8 October the applicant entered a grocery store. He proffered $10 to purchase a chocolate bar and, when the till was opened, grabbed all of the $50 notes before fleeing from the store. He stole about $1,500. 11 The fifth offence was a robbery taken into account on the Form 1. On 28 October the applicant entered a supermarket. He waited for the till to be opened. He then pushed the attendant aside and grabbed notes from the till. He stole about $500. 12 Count 2 on the indictment was a robbery that took place on 29 October. The applicant entered a gourmet food store and proffered a $10 dollar note for the purchase of a soft drink. When the till was opened he attempted to grab the tray but was prevented by the attendant. However the applicant managed to grab about $80 in notes before running from the store. 13 Count 3 on the indictment was a stealing from the person that occurred on 30 October. The applicant was present in a supermarket and, when the attendant opened the till, he reached into it and withdrew about $350 before leaving the store. 14 Count 4 on the indictment occurred on 31 October 2006. The applicant and a co-offender entered a bank. The applicant was armed with a black replica pistol and the co-offender with a rifle. The applicant approached a teller and handed her a bag. He told her that he would shoot her unless she filled it with money. She was also told to obtain money from a neighbouring teller. Cash amounting to $9,490 was placed in the bag. In addition the teller planted two dye bombs in the bag. As the applicant and his co-offender left the bank, the dye bombs exploded, staining some of the money, the applicant's clothing and the pistol. The police had been intercepting calls made by the applicant and heard him make statements implicating himself in the robbery. He was later arrested and was in possession of money and other objects stained with dye. 15 It should be noted that this is another case where a serious matter was inappropriately placed onto a Form 1 with the result that the judge could not impose a sentence to reflect the seriousness of that offence: see Eedens v R [2009] NSWCCA 254. This Court has been critical of this practice and has reminded judges of their power to reject a Form 1 which contains inappropriate matters: CP v R [2009] NSWCCA 291. Obviously the offence in the fourth count was the most serious matter for which the applicant was before the court. However, the next most serious offence was clearly the robbery on 7 October where the applicant was armed with a rifle. This offence, although contained on a Form 1, was substantially more serious than each of the first three offences on the indictment, which were in effect snatching money from a till. 16 At the hearing of the application the applicant indicated that he no longer relied upon four of the eight complaints he had raised in his earlier written submissions. The remaining complaints were as follows: