Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Elshaimy v R [2018] NSWCCA 169 Hearing dates: 9 July 2018 Decision date: 03 August 2018 Before: Meagher JA at [1] R A Hulme J at [2] Button J at [3] Decision: (1) Extension of time and leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – appeal against sentence – asserted failure of sentencing judge to make findings about applicant's risk of re-offending and prospects of rehabilitation – asserted justifiable sense of grievance on the part of applicant due to sentence disparity with co-offenders – no erroneous disparity found – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), ss 97(1), 112(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3) Category: Principal judgment Parties: Adam Mohamad Elshaimy (Applicant) Regina (Respondent) Representation: Counsel: G James AM QC (Applicant) B Hatfield (Respondent) Solicitors: Hallani & Associates (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/317160 Publication restriction: Nil. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 27 May 2016 Before: GD Woods QC DCJ File Number(s): 2013/317160 Judgment 1. MEAGHER JA: I agree with Button J. 2. R A HULME J: I agree with Button J. 3. BUTTON J: Background 1. This application for leave to appeal relates to a sentence imposed upon Mr Adam Mohamad Elshaimy (the applicant) on 27 May 2016 by his Honour Judge Woods QC in the District Court at Sydney. The applicant requires an extension of time in which to apply for leave to appeal; despite the significant delay in the appeal being prosecuted, I think that extension should be granted, chiefly because one of the proposed grounds is partly based upon a decision of this Court of August 2017. 2. The applicant was found guilty at the end of a trial by jury of the first count on the indictment, an offence (contrary to s 112(2) of the Crimes Act 1900 (NSW)) of aggravated (in company) break, enter and commit serious indictable offence (larceny) after a joint trial with his co-offender and brother, Islam Elshaimy (for convenience, and meaning no disrespect, I shall simply refer to him as Islam). Islam was also convicted of the aggravated break and enter and steal. That offence carries a maximum penalty of imprisonment for 20 years, and a standard non-parole period of five years. 3. The applicant was acquitted of the second count on the indictment of conspiracy to commit an armed robbery, contrary to the common law and s 97(1) of the Crimes Act. In contrast to the applicant, his brother Islam was convicted of that offence as well. The maximum penalty is at large, but may be thought of generally as not being beyond imprisonment for 20 years. 4. Ultimately, his Honour imposed upon the applicant for the aggravated break, enter and steal a head sentence of imprisonment for five years and six months, commencing on 8 March 2016 and expiring on 7 September 2021, with a non-parole period of three years and nine months that expires on 7 December 2019. A diagram annexed to this judgment shows the single sentence imposed upon the applicant. 5. On that same day, his Honour sentenced Islam for the aggravated break and enter and steal, and the conspiracy to commit armed robbery. On the conspiracy count, a fixed term of three years to commence on 9 March 2016 and expire on 8 March 2019 was imposed. On the aggravated break and enter and steal, a head sentence of imprisonment for five years six months with a non-parole period of three years, each to commence on 9 September 2017, was imposed. 6. The total sentence imposed upon Islam is therefore a head sentence of seven years with a total non-parole period of four years six months. Again, a diagram is annexed to this judgment, which sets out the structure of the sentences imposed upon Islam in readily comprehensible form. 7. On the same day, his Honour sentenced two further co-offenders, Mandouh Chahal and Ammar Chahal. Ammar Chahal had pleaded guilty to being part of the aggravated break and enter and steal, and also to a separate count averring that he had possessed an offensive weapon, in the form of a knife, with intent to commit the indictable offence of armed robbery whilst in company. Although differently expressed, and containing different elements, that count pertained generally to the planned armed robbery. 8. The sentence imposed by the sentencing judge upon Ammar Chahal became the subject of a successful appeal to this Court. In the interests of clarity, I shall therefore not recount the sentence originally imposed upon Ammar Chahal, but shall simply detail his sentences as they now stand. 9. With regard to his second count (possession of the knife with intent to commit armed robbery in company), Ammar Chahal has been sentenced to a fixed term of two years, which commenced on 11 March 2016 and expired on 10 March 2018. With regard to the aggravated break, enter and steal, he is serving a head sentence of four years eight months with a non-parole period of two years nine months, each of which commenced on 11 March 2017. Yet again, a diagram is annexed to this judgment that sets out the structure of the sentences of Ammar Chahal after his successful appeal to this Court. 10. Mandouh Chahal was not charged with involvement in the aggravated break, enter and steal. He eventually pleaded guilty to an offence of using or possessing a weapon with intent, in satisfaction of the conspiracy to commit armed robbery count. He was ultimately sentenced to imprisonment for two years to be served by way of an intensive correction order. Due to the nature of the grounds of appeal against sentence of the applicant, his position need not be discussed further. Overview of objective aspects 1. In a nutshell, the two counts related to offences committed in 2013 pertaining to a particular hotel in Kings Cross. 2. The aggravated break, enter and steal occurred on 14 July 2013. Two armed men disguised by balaclavas forced entry into the hotel, and stole over $140,000 cash in takings; one presumes that the vast bulk of that sum was derived from poker machines. The applicant and Ammar Chahal were the two principals in the first degree, and Islam was the driver. The hotel manager was in fact an "inside man" who pretended to be restrained by the offenders, but who in fact assisted them by opening the safe. 3. The conspiracy to commit armed robbery and related offences occurred on 21 October 2013. On that occasion, Ammar Chahal and Mandouh Chahal were arrested near the hotel in question in possession of weapons and other items at about the time when the proprietors of the hotel were expected to leave with the takings. There was evidence that implicated Islam as conspirator; that is, a person who sincerely agreed with at least one other to commit the offence of armed robbery against those proprietors (it is to be recalled that the applicant was acquitted of this count). Summary of subjective matters 1. I shall now set out, in very brief form, an overview of the subjective position of the applicant, Islam, and Ammar Chahal. The "parity table" to be found later in this judgment – derived from documents in similar form helpfully prepared by both parties – goes into much greater detail, and I shall not burden the reader with repetition. 2. Subjectively, the applicant was aged 24 at the time of the commission of the aggravated break, enter and steal. He was a young man of prior good character, who had obtained a tertiary degree. He also came from a well-regarded family, and the commission of that serious offence was a bitter disappointment to many. 3. His brother Islam also had no prior convictions. He also was a young man, aged 21 in 2013, and was aged 24 by the time he came to be sentenced in May 2016. The sentencing judge felt that, in contrast to the applicant, there was "some support for the theory that Islam may have had some family difficulties which have contributed to a lack of judgment later in life". 4. As for the subjective matters relating to Ammar Chahal, he was also young, aged 29 at the time of the commission of the offences, having been born in November 1984. The sentencing judge found remorse on his part, based chiefly on the provision of a bank cheque, made out to the proprietors of the hotel for a significant sum of money, in an effort to make recompense for his crime. A discount of 20% for the utilitarian value of the plea of guilty to the weapons possession charge was allowed by this Court, and a discount of 10% for the same purpose was applied to the sentence for the aggravated break, enter and steal. 5. Although, in contrast to the applicant, Ammar Chahal did possess a criminal record, it was quite limited, and pertained only to an offence of "goods in custody" for which he was placed on a bond; a number of driving offences, for which he was variously fined, disqualified, and placed on a bond without conviction; and an offence of possessing an offensive weapon or instrument in a place of detention, for which he was fined $500. Grounds 1. The following grounds were notified and pressed at the hearing: 1. His Honour erred in failing to make findings in relation to the applicant's risk of re-offending (s 21A(3)(g)), and prospects of rehabilitation (s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999); and 2. The applicant has a justifiable sense of grievance, in light of the sentences imposed upon the co-offenders Islam Elshaimy, and Ammar Chahal. Ground two 1. In my opinion, it is convenient to deal with this ground first. As can be seen, it is an assertion of erroneous disparity when one compares the sentence imposed upon the applicant for the aggravated break, enter and steal with the sentence imposed upon his brother Islam for the identical offence, and also with the sentence imposed for the same offence upon Ammar Chahal after the success of his appeal to this Court. 2. I provide now a table that seeks to compare comprehensively all of the objective and subjective features pertaining to the applicant, his brother Islam, and Ammar Chahal. APPLICANT Ammar CHAHAL Islam ELSHAIMY Count 1: Aggravated (in company) break, enter & commit serious indictable offence (larceny) s112(2) Count 1: Aggravated (in company) break, enter & commit serious indictable offence (larceny) s112(2) Count 1: Aggravated (in company) break, enter & commit serious indictable offence (larceny) s112(2) Charge Maximum penalty: 20 years; SNPP 5 years Maximum penalty: 20 years; SNPP 5 years Maximum penalty: 20 years; SNPP 5 years Count 2: Not guilty of conspiracy to commit armed robbery Count 2: Possess offensive weapon (knife) with intent to commit indictable offence (robbery whilst armed & in company) s 33B(2) Count 2: Conspiracy to commit armed robbery (common law) Maximum penalty: 15 years Count 1: Count 1: Head sentence: 4 years 8 months Head sentence: 5 years 6 months Count 1: NPP: 2 years 9 months NPP: 3 years Sentence Head sentence: 5 years 6 months Count 2: Count 2: NPP: 3 years 9 months Fixed term 2 years Fixed term 3 years No discount Total: 5 years 8 months NPP 3 years 9 months Total: 7 years, NPP 4 years and 6 months Count 1- 10% discount for plea of guilty No discount Count 2- 20% discount for plea of guilty re: count 2 Plea Not guilty to both Guilty to both Not guilty to both Role in aggravated break, enter and steal Principal in the first degree Principal in the first degree Driver However, the sentencing judge found no distinguishing findings in relation to culpability However, the sentencing judge found no distinguishing findings in relation to culpability However, the sentencing judge found no distinguishing findings in relation to culpability Age (at time of offence) 24 29 21 Criminal record No prior convictions Goods in personal custody suspected of being stolen, 2x driving while licence suspended, use unregistered vehicle on road area, driver state false name or address, possession of a knife in a place of detention No prior convictions Remorse No finding made (although counsel for applicant conceded in written submissions "it is likely that his Honour, similarly, would have found the applicant not to be remorseful") Remorse demonstrated by bank cheque Reference from a former headmaster referred to remorse CCA: less convinced cheque demonstrated remorse, but did not take a different view Little evidence of remorse, as when he gave evidence, he strongly protested his innocence Family support Bullied in school Subjective features Degree in oral health & hygiene and worked in that field. Low self-esteem contributed to a depressive disorder Some family difficulties that have contributed to a lack of judgment later in life A number of references were tendered suggesting that the offence was out of character Apprenticeship as cement renderer Degree in teaching Completed volunteer work Well-regarded in community 1. In written submissions in support of this ground, the sentences imposed upon all three men were detailed, including the adjustment after the successful appeal by Ammar Chahal. 2. It was accepted that there was little or nothing to distinguish the three men objectively with regard to their roles in the aggravated break, enter and steal. It was also accepted that the position of the applicant subjectively was "quite similar" to the position of his brother. 3. Attention was drawn without complaint to the identical head sentences imposed upon the applicant and his brother Islam for the aggravated break, enter and steal. 4. As for the fact that the non-parole period imposed upon the applicant was longer than that imposed upon Islam, it was conceded that the sentencing judge had said of Islam, "I find special circumstances for varying the normal relationship between the head sentence and the non-parole period, consisting in the accumulation of the sentences and the fact that it is the first time custody for this prisoner" (emphasis added by me). 5. In a similar vein, it was said that "accumulation is, of course, a proper basis for the making of a finding of special circumstances". But it was also submitted that, even so, one must take care to ensure that an adjustment with regard to the total non-parole period to be served by one offender arising from accumulation does not give rise to an objectively justifiable sense of grievance in another offender. 6. Separately with regard to Islam, the gravity of the conspiracy to commit armed robbery (of which Islam was convicted, and the applicant acquitted) was noted. And yet it was said that, in the event, Islam will serve a total non-parole period of four years six months, merely nine months longer than the single non-parole period of three years nine months imposed upon the applicant. 7. As for the sentence imposed upon Ammar Chahal for the aggravated break, enter and steal, it was accepted that, if one removes the utilitarian discount of 10%, one arrives at a starting point of a head sentence of five years two months. And it was also accepted that, as opposed to the applicant, Ammar Chahal enjoyed a finding that he was remorseful. Nevertheless, attention was drawn to his criminal record, and the submission was made that the applicant would feel a justifiable sense of grievance in comparing the sentence imposed upon himself with that imposed upon Ammar Chahal for the identical offence. 8. In oral submissions, senior counsel emphasised the longer non-parole period of the applicant for the aggravated break, enter and steal in comparison to Islam, despite the applicant being acquitted of count 2. That was submitted to be an error, as the applicant should not be placed "in a much more adverse position" because of the totality principle "giving his brother a benefit". A holistic view of the co-offenders' sentences, and the lack of explanation by the trial judge was said to call for intervention by the Court. 9. Furthermore, in comparison to Ammar Chahal, there was "nothing so significant as to result in any significant difference in sentence". It was submitted that, having regard to the length of the sentences, the applicant received a "significant difference and a significant force", giving rise to a justifiable sense of grievance on his part. 10. Turning to my determination of this ground, I respectfully believe that it does not require deep analysis. 11. Suffice to say, it is perfectly clear that the non-parole period of Islam for the aggravated break, enter and steal was reduced so as to avoid him being subject to a total non-parole period that was greater than 75% of his total head sentence, due to the well-known mathematical effect of accumulation of sentences. That course was not only open to the sentencing judge; in all likelihood, if it had not been adopted, it would have founded a successful ground of appeal on the part of Islam. It provides a sound reason for a reduction that Islam enjoyed, due to the burden of accumulation that was not borne by the applicant. In my opinion, that reduction cannot found a justifiable sense of grievance on the part of the applicant. 12. In a similar vein, the sentence of Islam for the aggravated break, enter and steal is partly concurrent with, and partly cumulative upon, his fixed term for the conspiracy to commit armed robbery. As the diagram shows, the longer sentence commences 18 months after the shorter sentence commences. And the total non-parole period to which Islam is subject is four years six months, whereas the single non-parole period to which the applicant is subject is three years nine months. 13. Even assuming, for the sake of argument only, that the applicant is entitled to point to the total non-parole period (which includes the effect of a sentence imposed for an offence with regard to which the applicant is not a co-offender) being served by Islam, and complain about it when comparing it to his own single non-parole period, I think that the result whereby the total minimum time in custody of Islam is extended by a reasonably short period for the uncompleted offence is explicable, in terms of sentencing law, common sense, and justice. It cannot found a justifiable sense of grievance on the applicant. 14. Turning to the head sentence of four years eight months imposed upon Ammar Chahal for the aggravated break, enter and steal, and the fact that it is ten months shorter than that imposed upon the applicant for the same offence, that outcome is perfectly explicable on the basis of the utilitarian value of his plea, the finding of his remorse, and the fact that his criminal record was neither here nor there. It cannot give rise to a justifiable sense of grievance. 15. Finally, for completeness, as for the fact that the non-parole period for the aggravated break, enter and steal imposed upon Ammar Chahal is 12 months shorter than that imposed upon the applicant for the same offence, all that I have written above about the orthodox shortening of a non-parole period in order to ameliorate the effects of total or partial accumulation is apposite here as well. 16. In short, I do not accept that the applicant is entitled to experience an objectively justifiable sense of grievance when he compares – in any sense – his sentencing outcome with that of Islam or Ammar Chahal. It follows that I would dismiss ground two. Ground one 1. I repeat the ground for the convenience of the reader: His Honour erred in failing to make findings in relation to the applicant's risk of re-offending (s 21A(3)(g)), and prospects of rehabilitation (s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999). 1. This ground was based upon the following aspects of the proceedings on sentence. 2. Counsel then appearing for the applicant provided the sentencing judge with five pages of extensive written submissions. They included the following concise reference: "[t]he mitigating circumstances are really the lack of criminal record of Mr Elshaimy: s 21A(3)(f) and it is submitted the unlikelihood of reoffending and good prospects of rehabilitation: s 21A(3)(g) and (h). This aspect may be further adumbrated in oral submissions in Court." 3. In extensive oral submissions during the proceedings on sentence, counsel for the applicant said two things about the prospects of rehabilitation. The first was verbatim as follows: "The issue which one takes most directly to be under challenge in the submission of the Crown is the submission which is that the Courts would be ‑ this Court would be more circumspect about the prospects of rehabilitation of the three offenders than in the context of the Crown's submission, one would be about Mr Yae [the inside man]. My submission is that the Court would not be more circumspect about the prospects of rehabilitation of Adam Elshaimy." (proceedings on sentence transcript (POST) 30.40-45) 1. Thereafter, counsel went on to emphasise that the "inevitable imprisonment" of the applicant was a disaster for him and his family. The attention of the sentencing judge was invited to all of the family members present in support of the applicant; the fact that the applicant was the father of a child who had just turned two years of age, and was expecting another baby; the fact that he enjoyed very strong family support and connection; and to a letter from the mother of the applicant addressed to the sentencing judge. 2. The second thing said in the plea in mitigation about the topic was "[o]f course the mitigating circumstances are the lack of criminal record from Mr Elshaimy and the unlikelihood of reoffending and the prospects of rehabilitation" (POST 33.5). 3. In written submissions in support of the ground, it was said that the sentencing judge had made no findings "one way or the other" about the prospects of rehabilitation and the unlikelihood of further offences being committed. It was said that that itself constituted an error. 4. In oral submissions, it was emphasised that there was some defect in the judge's findings in relation to the applicant's risk of re-offending and prospects of rehabilitation. That was said to be significant, in light of the evidence, including the evidence tendered at the hearing to support his prospects of rehabilitation. That included: that he was continuing to undertake educational courses; his graduation certificate from university; his certificate of registration as a dental practitioner oral health therapist; his completion of the "Clear Path Orthocare" program; recognition that he visited State Parliament; a certificate in excellence for his High School Certificate in mathematics; and multiple character references. Such material, it was submitted, should have been referred to when reaching a conclusion that the applicant "was to be punished more severely than his co-offenders". 5. Turning to my determination of this ground, again I respectfully believe that I can be brief. 6. The sentencing judge was called upon to sentence four offenders with regard to two separate acts of criminality. The picture of which man was guilty of precisely which offence was not free from complication. The objective features were reviewed concisely but perfectly comprehensively in the remarks on sentence. 7. As for the subjective features of the applicant, his Honour referred to the fact that he had no prior convictions. His Honour also referred to the fact that the evidence that had been tendered on behalf of the applicant showed that he had been a gifted pupil at school, and had won a prize for religious studies; had possessed ambitions to be a dentist, and indeed had already been conferred with a degree in oral health and hygiene from a highly regarded university; to the letter from his mother speaking of her son as "the perfect child"; to the fact that it was obvious that the family of the applicant had been "devastated" by his conviction for a serious offence; to a reference from the former school principal of the applicant that strongly suggested that the "conduct which brings him here is out of character, and that gentleman is certain that he will never reoffend"; to the volunteer work that the applicant had undertaken; to the fact that the applicant had been a worker; and (in the context of a discussion of the position of Islam) that both brothers were "intelligent enough not to have participated in this stupidity". 8. Thereafter, his Honour went further in the remarks on sentence, and summarised what had been put on behalf of the applicant by his counsel. That included some rejected propositions about objective matters; the emphasis upon the prior achievements and prior good character of the applicant, which was said to be fully accepted; the taking into account of prior good character; and the finding that the applicant was an intelligent man. Later, in another context, his Honour said of the applicant and Islam "They do have the benefit, however, as I have said, of the fact that they have no prior convictions - or no prior significant convictions." 9. As the sentencing diagram pertaining to the applicant shows, special circumstances were found that led to a reduction away from the "statutory ratio". The reason given by his Honour for the finding of special circumstances was that "it is the first time that the offender will have been in custody". 10. After imposing sentence, his Honour emphasised "I have taken into account all the arguments of counsel, even though I have not specifically referred to them in these reasons, and that goes for both the arguments of counsel for the Crown and counsel for the defence." 11. In all of those circumstances, I cannot accept that it was a material error leading to mandatory consideration of re-sentence for his Honour to have failed to refer in so many words to the prospects of rehabilitation of the applicant. 12. Far from being wanting, the discussion of the subjective features of the applicant was extensive; indeed, fulsome. And the overwhelming majority of the subjective findings were positive. The inevitable inference is that the sentencing judge accepted that the prospects of rehabilitation of the applicant were very sound (even despite the gravity of the offence he had committed, and his refusal to admit his guilt thereof). 13. Speaking more generally, one can accept that there is a general requirement upon a sentencing judge or magistrate to reflect in his or her remarks on sentence the written and oral submissions that have been made, on behalf of each party. But I do not accept that the law of sentencing in New South Wales is that a sentencing judge or magistrate must formalistically and mechanistically refer to each and every discrete submission made on behalf of the Crown or an offender – for fear of error being shown on appeal – when the whole flavour of the remarks on sentence is an implicit acceptance of the particular point being made in favour of that party. 14. In my opinion, this ground must be rejected. Proposed orders 1. In light of my opinion that neither ground should be upheld, I propose the following orders: (1) Extension of time and leave to appeal granted. (2) Appeal dismissed. Adam Elshaimy sentence diagram (2.20 KB, pdf) Ammar Chahal sentence diagram (2.58 KB, pdf) Islam Elshaimy sentence diagram (2.54 KB, pdf) ********** 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. Decision last updated: 03 August 2018