HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant, Abdul Elali, sought leave to appeal against his conviction for the offence of entering a building on 30 December 2021 with intent to commit an indictable offence contrary to s 114(1)(d) of the Crimes Act 1900 (NSW), to which he pleaded guilty. It was common ground between the parties that the indictable offence was the common law offence of escaping from lawful custody.
The applicant also sought leave to appeal against his sentence imposed by Turnbull SC DCJ ("the judge") on 21 November 2023 in the District Court where he was sentenced to an aggregate sentence of 8 years imprisonment, with a non-parole period of 4 years.
The applicant sought leave to appeal against his conviction and sentence on three grounds:
Ground 1: A miscarriage of justice was occasioned by the applicant's conviction for the offence of entering a building with intent to commit an indictable offence, namely the common law offence of escape, in circumstances where, on the agreed statement of facts, the applicant could not in law have been convicted of the offence.
Ground 2: His Honour erred in determining the commencement date of the aggregate sentence by reference to the asserted effect of the applicant's parole and previous intensive corrections order having been revoked, in circumstances where there had been no such revocation.
Ground 3: His Honour erred in sentencing the applicant in respect of the two driving while disqualified offences on the basis that the maximum penalty was one of 2 years imprisonment, when in fact the maximum penalty was one of 12 months imprisonment.
During the hearing, the applicant sought leave to advance a proposed fourth ground of appeal:
Ground 4: His Honour erred in failing to find that the applicant was sexually mistreated in the custodial environment.
The Court held (Price AJA, Ierace and McNaughton JJ agreeing) granting leave to appeal, dismissing the appeal against conviction, allowing the appeal against sentence and resentencing the applicant:
As to Ground 1:
1. The common law offence of escaping from lawful custody is a continuing offence: [34]-[36], [63]-[65] (Price AJA), [166] (Ierace J), [167] (McNaughton J). Whether an escape has ended is a question of fact. It is not constrained by the imposition of boundaries such as the lack of immediate pursuit, loss of control or being out of sight: [51]-[56], [59]-[61] (Price AJA), [166] (Ierace J), [167] (McNaughton J).
R v Tommy Ryan (1890) 11 LR (NSW) 171; (1890) 6 WN (NSW) 162; R v Ryan and Walker [1966] VR 553; R v Reid (Stuart William) [2015] EWCA Crim 597, applied.
R v Scott [1967] VR 276, distinguished.
R v Keane [1921] NZLR 581; R v Kafka [1962] NZLR 351; R v Kura [2008] NZCA 337, disapproved.
Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76; Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75; Moriarty v Nye [2024] NSWCCA 116, cited.
1. The applicant was in the process of escaping when he entered the premises and is guilty of the offence: [32]-[33], [38], [62], [68] (Price AJA), [166] (Ierace J), [167] (McNaughton J).
R v Liberti (1991) 55 A Crim R 120; Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41; Nassr v R [2015] NSWCCA 284, cited.
As to Ground 2:
1. The commencement date of a sentence is a matter of discretion for the sentencing judge and a House v The King (1936) 55 CLR 499; [1936] HCA 40 error must be established. The applicant did not establish error: [81]-[85] (Price AJA), [166] (Ierace J), [167] (McNaughton J).
Delaney v R [2013] NSWCCA 150; (2013) 230 A Crim R 581; Refaieh v R [2018] NSWCCA 72; (2018) 272 A Crim R 245; Rizk v R [2020] NSWCCA 291, cited.
As to Ground 3:
1. The judge acting upon the erroneous maximum penalty for the driving whilst disqualified offences had the capacity to materially impact the aggregate sentence imposed. Ground 3 was established and it was necessary to resentence the applicant afresh: [86], [89]-[91] (Price AJA), [166] (Ierace J), [167] (McNaughton J).
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Andreata v R [2015] NSWCCA 239; Kandemir v R [2018] NSWCCA 154, cited.
As to Proposed Ground 4:
1. Whilst this Court does not readily receive new evidence, the Court's jurisdiction is concerned with the prevention of a miscarriage of justice: [131]-[133] (Price AJA), [166] (Ierace J), [167] (McNaughton J).
Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483; Shortland v R [2024] NSWCCA 174, considered.
1. Had the fresh and new evidence been before the judge his Honour would have found on the balance of probabilities that the applicant had been both physically and sexually abused at Reiby Juvenile Justice Centre ("Reiby"): [134]-[135] (Price AJA), [166] (Ierace J), [167] (McNaughton J).
R v Goodwin (1990) 51 A Crim R 328; Kaveh v R [2017] NSWCCA 52; Da Silva v R [2024] NSWCCA 216, cited.
1. A finding of sexual abuse is significant and not a matter that can readily be put aside in a sentencing exercise. The additional material may have had a real bearing on the aggregate sentence imposed. The absence of that material during the sentencing proceedings deprived the judge of fully appreciating and considering the circumstances of the applicant's sexual abuse at Reiby and in this exceptional case, results in a miscarriage of justice: [136]-[137] (Price AJA), [166] (Ierace J), [167] (McNaughton J).
R v AGR (Court of Criminal Appeal (NSW), 24 July 1998, unrep); R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469; Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207; Shaw v R [2024] NSWCCA 241, cited.
1. The additional evidence is admitted and leave is granted to the applicant to add Ground 4 to his appeal. Ground 4 has been established. The applicant resentenced to an aggregate term of imprisonment of 7 years and 6 months consisting of a non-parole period of 3 years and 9 months, and a balance of term of 3 years and 9 months: [138], [164]-[165] (Price AJA), [166] (Ierace J), [167] (McNaughton J).