Elali v R

Solicitors: Just Defence Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2021/274870; 2021/369213; 2022/336091; 2021/369218; 2021/369527; 2021/369233; 2022/38819; 2022/76775; 2021/369231 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 21 November 2023 Before: Turnbull SC DCJ File Number(s): 2021/274870; 2021/369213; 2022/336091; 2021/369218; 2021/369527; 2021/369233; 2022/38819; 2022/76775; 2021/369231

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sentence by reference to the asserted effect of the applicant's parole and previous intensive corrections order having been revoked, in circumstances where there had been no such revocation.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).

JUDGMENT

1. PRICE AJA: The applicant, Abdul Elali, seeks 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. For ease of identification, the sequence number of the offence is H85707372/4.
2. The applicant also seeks leave to appeal against his sentence imposed by Turnbull SC DCJ ("the judge") on 21 November 2023 in the District Court at Sydney, pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW).
3. On 12 May 2023, the applicant pleaded guilty in the Local Court at Penrith to the offences set out in the table below (at [5]) and was committed for sentence to the District Court.
4. On 21 November 2023, the judge sentenced the applicant to an aggregate sentence of 8 years imprisonment, with a non-parole period ("NPP") of 4 years, after allowing a discount of 25% for his pleas of guilty and finding special circumstances. The aggregate head sentence was backdated to commence on 20 March 2022 and expires on 19 March 2030, with the NPP to expire on 19 March 2026.
5. The table below which was helpfully provided by the Crown sets out the offences; the maximum penalties for the offences; the offences included on a Form 1 and the judge's indicative sentences: Charge and sequence Number Offence and section Maximum penalty Indicative sentence H85768234/1 Enter building with intent to commit indictable offence of larceny 7 years imprisonment 21 months imprisonment (taking into account Form 1A) s 114(1)(d) Crimes Act 1900 (NSW) H85768234/2 Damage property 5 years imprisonment Taken into account on Form 1A attaching to H85768234/1 s 195(1)(a) Crimes Act 1900 (NSW) H85768234/3 Common assault 2 years imprisonment Taken into account on Form 1A attaching to H8576234/1 s 61 Crimes Act 1900 (NSW) H325335096/1 Enter inclosed lands 5 penalty units Taken into account on Form 1A attaching to H85768234/1 s 4(1)(b) Inclosed Lands Protection Act 1901 (NSW) H325335096/2 Larceny 5 years imprisonment Taken into account on Form 1A attaching to H85768234/1 s 117 Crimes Act 1900 (NSW) H85199222/1 Police pursuit (second or subsequent) 5 years imprisonment and 5 years automatic / 2 years minimum disqualification 28 months imprisonment s 51B(1) Crimes Act 1900 (NSW) H85199222/3 Resist officer while in the execution of his or her duty 5 years imprisonment Taken into account on Form 1B attaching to H85199222/4 s 58 Crimes Act 1900 (NSW) H85199222/4 Assault officer while in the execution of his or her duty 5 years imprisonment 28 months imprisonment (taking into account Form 1B) s 60(1) Crimes Act 1900 (NSW) H85199222/5 Drive while disqualified (second or subsequent offence) 12 months imprisonment and/or 50 penalty units 14 months imprisonment, with a 12 month licence disqualification s 54(1)(a) Road Transport Act 2013 (NSW) 12 months automatic/ 6 months minimum disqualification H85199222/6 Possess prohibited drug 2 years imprisonment and/or 20 penalty units Taken into account on Form 1B attaching to H86199222/4 s 10(1) Drug Misuse and Trafficking Act 1985 (NSW) H85199222/7 Drive conveyance taken without consent of owner 5 years imprisonment Taken into account on Form 1C attaching to H86031136/1 s 154A(1)(b) Crimes Act 1900 (NSW) H85199222/8 Possession of identification plate not attached to vehicle 5 years imprisonment Taken into account on Form 1C attaching to H86031136/1 s 154J(1) Crimes Act 1900 (NSW) H85199222/12 Goods in premises suspected stolen 12 months imprisonment and/or 10 penalty units Taken into account on Form 1C attaching to H85031136/1 s 527C(1)(c) Crimes Act 1900 (NSW) H85199222/15 Use class A vehicle with unauthorised number plate affixed 20 penalty units s 10A Crimes (Sentencing Procedure) Act 1999 (NSW) reg 129(1) Road Transport (Vehicle Registration) Regulation 2017 (NSW) H85199222/16 Enter inclosed lands 5 penalty units Taken into account on Form 1B attaching to H85199222/4 s 4(1)(b) Inclosed Lands Protection Act 1901 (NSW) H85199222/18 Damage property 5 years imprisonment Taken into account on Form 1B attaching to H8519222/4 s 195(1)(a) Crimes Act 1900 (NSW) H86031136/1 Break, enter and steal 14 years imprisonment 3 years and 8 months imprisonment (taking into account Form 1C) s 112(1)(a) Crimes Act 1900 (NSW) H85882920/1 Larceny 5 years imprisonment 16 months imprisonment s 117 Crimes Act 1900 (NSW) H317489798/1 Break, enter and steal 14 years imprisonment 30 months imprisonment s 112(1)(a) Crimes Act 1900 (NSW) H85166214/1 Larceny 5 years imprisonment 15 months imprisonment s 117 Crimes Act 1900 (NSW) H85166214/2 Drive while disqualified (second or subsequent offence) 12 months imprisonment and/or 50 penalty units 12 months imprisonment and a 12 month licence disqualification s 54(1)(a) Road Transport Act 2013 (NSW) 12 months automatic/ 6 months minimum disqualification H85707372/1 Escape police custody Penalty at large 12 months imprisonment Common law H85707372/3 Enter inclosed lands 5 penalty units Taken into account on Form 1B attaching to H85199222/4 s 4(1)(b) Inclosed Lands Protection Act 1901 H85707372/4 Enter building with intent to commit indictable offence of escape police custody 7 years imprisonment 36 months imprisonment s 114(1)(d) Crimes Act 1900 (NSW) H91650838/1 Larceny 5 years imprisonment 18 months imprisonment s 117 Crimes Act 1900 (NSW)

1. The notice of appeal identifies the following three grounds of appeal: 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.
2. At the commencement of the hearing in this Court, the applicant's counsel, Mr Lange, sought leave to advance a fourth ground of appeal: Ground 4: His Honour erred in failing to find that the applicant was sexually mistreated in the custodial environment.
3. Both parties were granted leave to file further written submissions.
4. During the proceedings on sentence, a signed Statement of Agreed Facts setting out the circumstances of the applicant's offending was tendered. Before proceeding further, it is convenient to summarise the agreed facts for all the applicant's offences other than those relating to ground 1. The agreed facts relevant to ground 1 are summarised below at [23].

H325335096 (Seq 1 and 2) - enter inclosed lands - larceny - 18 June 2021

1. On the evening of 18 June 2021, the applicant entered the car park of a Millers Point residential apartment block which was a secured and enclosed space. The applicant then stole a bicycle valued at around $400 parked in the car park and left the area. On two separate occasions later that night, the applicant was stopped by police and captured on body worn video in possession of the stolen bicycle.

H85768234 (Seq 1-3) - enter land with intent to commit larceny - damage property - common assault - 25 July 2021

1. In the very early morning of 25 July 2021, the applicant was captured on CCTV footage entering the car park of a residential apartment block in Dee Why. The applicant was seen searching through the windows of parked cars using the flashlight on his phone, while also holding a wheel brace and metal pole. He then approached a motorcycle parked in one of the bays and used the metal pole to tamper with and strike the front wheel. He also shook the motorcycle and twisted the throttle causing damage. The estimated cost of repairing this damage was assessed to be $2469.41.
2. On that same day at about mid-morning, the applicant was confronted by a female resident who had called the owner of the motorcycle. The applicant was approached by the owner and in conversation told them that he was just fixing the bike because "some kids tried to steal it". Upon the owner insisting that the applicant remain and wait for the police to arrive, he attempted to leave the premises and was closely followed by the owner. At this point, the owner caught up with the applicant, and the applicant punched the owner's chest with two closed fists. When this occurred, the owner stopped following the applicant on foot but continued observing the applicant from a distance in his car.

H85166214 (Seq 1 and 2) - larceny - drive while disqualified - 20 November 2021

1. On 20 November 2021, the applicant entered Michael Hill Jewellers in Westfields at Penrith, stole jewellery from the display area and left without paying. The CCTV footage showed that he had successfully picked the lock to a display cabinet and removed two trays of pendants, placing the jewellery in the front pocket of his jumper. The total value of the jewellery stolen by the applicant was $22,783. These items have not been recovered. The applicant was also captured driving to Westfields and leaving when he did not at that time hold a driver's licence and was also disqualified from driving.

H317489798 (Seq 1)- break and enter and steal - 25 November 2021

1. On 25 November 2021, the applicant broke into a residence at St Clair by damaging the side fly screen and entering through the ground level window. The applicant stole several items from the property including two laptop computers, a money tin containing around $300, multiple pairs of shoes and jewellery. The total value of all the items stolen was approximately $12,650, which has not been recovered.

H85882920 (Seq 1) - larceny - 16 December 2021

1. On 16 December 2021 during the afternoon, the applicant and two co-offenders were captured on CCTV entering Selected Jewellery in Westfields at Miranda. The co-offenders momentarily distracted the store employee as the applicant unlocked a glass cabinet in the store and removed four watches. The CCTV footage also shows the applicant removing a diamond pendant and chain from a mannequin when leaving the store. The total value of the jewellery stolen was approximately $21,180, which has not been recovered. In a later recorded Electronically Recorded Interview with a Suspected Person ("ERISP"), the applicant made full admissions of the offending conduct during the incident.

H91650838 (Seq 1) - larceny - 17 December 2021

1. On 17 December 2021 in the afternoon, the applicant and a co-offender attended Angus and Coote inside Macquarie Shopping Centre. The CCTV footage appears to show that while the staff member was busy speaking with the co-offender, the applicant lifted a glass sliding window of a display case and took four rings. The applicant is seen on CCTV placing the rings in his pocket and leaving the store with the co-offender. The total value of the rings was $11,196, which has not been recovered.

H86031136 (Seq 1) - break and enter and steal - 27 December 2021

1. On 27 December 2021 in the early hours of the morning, the applicant broke into the premises of a Cars 24 site in St Mary's and stole a Mercedes-Benz GLA 250. About two days later, employees noticed that a Mercedes had been stolen, along with various other items such as car keys and identification plates. The applicant was caught driving the stolen Mercedes in the police pursuit outlined below at [18]-[19] (H85199222), and the stolen items were recovered from inside that vehicle.

H85199222 (Seq 1-18) - police pursuit - resist officer - assault officer - drive while disqualified - possess prohibited drug - drive stolen conveyance - possess identification plate not attached to vehicle - Goods in premises suspected stolen - use vehicle with unauthorised number plate - enter inclosed lands - damage property - 29 December 2021

1. On 29 December 2021, police spotted the applicant driving a stolen Mercedes-Benz GLA 250 as he passed through Willmot. The Mercedes was displaying a Victorian registration number plate belonging to an Audi Q3 8U station wagon. The applicant's manner of driving caught the attention of police who then followed him. Upon seeing that the patrolling police car had activated its sirens and warning lights the applicant started accelerating away. A police pursuit ensued with the applicant travelling at speeds in excess of the speed limit. At one point during the pursuit, the applicant had increased his speed to approximately 80 km/h in a 50 km/h zone which was 30 km/h above the speed limit. The pursuit went on for over 5 kms and eventually ended when the applicant lost control of the vehicle and crashed into a tree.
2. The co-offender, who sat in the passenger seat, was arrested nearby. The applicant fled the scene with a police officer pursuing him not far behind. The officer repeatedly requested and directed that the applicant get on the ground in order to be arrested but he did not comply. The applicant shaped up and threw several punches at the officer, which did not land, and made threats to "slash", "stab" and "shoot" the officer. He also placed one arm under his jumper which caused the officer to believe that he was holding a knife. The officer in response raised his gun at the applicant. Once arrested, the applicant was searched and a small package containing 2.46 grams of buprenorphine was found. Police searched the vehicle the applicant had been driving and found a number of items including car keys belonging to seven cars, three different NSW registration plates, two laptops, black gloves, a bunch of power tools, two sunglasses and vehicle inspection forms for several cars.

Ground 1 - common law offence of escape

1. The Court Attendance Notice ("CAN") is as follows: "Crimes Act 1900 114(1)(d) Enter building/land w/I commit indictable offence - T1 between 1:15 pm and 1:30 pm 30/12/2021 at ROOTY HILL did enter a building, to wit, ... Victoria Road, Rooty Hill with intent to commit an indictable offence in the said building, to wit, … Victoria Road, Rooty Hill."
2. Although the CAN does not provide particulars of the indictable offence, it is common ground that the indictable offence described is the common law offence of escape from lawful custody.
3. The applicant also entered a plea of guilty to the common law offence of escape from police custody. The CAN is in the following terms: "Common Law (NSW) CommonLaw Escape police custody-T1 between 1:15 pm and 2:30 pm 30/12/2021 At MOUNT DRUITT did, being a prisoner, escape from the lawful custody of Constable TRACEY and Constable SMITH, members of the Police Force."
4. The agreed facts for these offences which occurred on 30 December 2021 are as follows: "101. At around 1:15pm Constables Michelle TRACEY and Jacqueline SMITH escorted the offender from the Hospital to the Police Vehicle. The offender was escorted with Police on both sides of him. Whilst walking back to the car, the offender ripped free from Police and ran [sic] away from the car park of Mount Druitt Hospital in the direction of Railway Street, Mount Druitt. 102. A foot pursuit ensued from this point where the offender was chased from the car park Eastbound onto Railway Street. The offender ran over two lanes of traffic almost causing a car accident. 103. The offender continued to run Eastbound onto Kimberly Street and cut left into an alleyway [sic] leading Northbound onto Victoria Road, Rooty Hill. 104. The Offender entered the land and residential premises at … Victoria Road Rooty Hill and went through the house (sequence 3 placed in Form 1B), in attempting to escape from police custody. Thereupon he entered the residential premises at … Victoria Road Rooty Hill from the back door and asked the occupants (victims 1 & 2) to hide him. (Sequence 4-Enter building with intent). When they refused, he himself closed the front door and went into the guest bedroom to hide from the police. 105. When Constables TRACEY and SMITH lost sight of the accused, they urgently requested further Police resources where a perimeter was quickly established. Whilst holding a perimeter as K9 Dog Unit was requested, numerous members of the Public began to point in the direction of the driveway of … [a house on] Victoria Road, Rooty Hill. 106. The perimeter was tightened further by the police and they began to look into and around the backyard of … [houses in] Victoria Road. As Police checked the backyard of … [the victim's house on] Victoria Road, a rear security door was seen by them to be ajar. 107. At this time, the elderly female occupant … (victim 2) was holding her hands in the air looking extremely distressed. Police asked the victim if she needed any assistance. The victim appeared to be fearful and could not verbally reply. Instead, the victim was moving her eyes in the direction of the hallway. 108. When Police fully opened the screen door, the victim started pointing inside a bedroom within the house and she informed Police that a male intruder was inside her house. Police cleared the room and located the offender in the guest bedroom of … [a house on] Victoria Road, Rooty Hill. 109. The offender was apprehended by Police and placed under arrest. Due to the room where the offender was located in was a confined space and knowing the violent history of the offender and noting his previous escape from police custody, Police immediately took down the accused and arrested him. Police attempted to place his arms to the rear. Police had to use large flexi cuffs made out of a plastic construction. 110. The main occupant of the premises (victim 1-elderly male) also spoke with the police at the scene and both victims later provided statements to the police. 111. Following the arrest, a further victim approached Police and advised that the offender ran through her house as well … [another house on] Victoria Road, Rooty Hill. (sequence 3 placed on the Form 1C) In total, three victims between the two houses informed Police that they did not give any consent for anyone to enter their property. 112. The two elderly victims at … Victoria Road disclosed to the Police that they were fearful for their safety due to the offender entering their premises in such manner and asking them to hide him inside their house. 113. Once the offender was back in police custody, he was not violent any longer and began apologising to Police … 114. The offender was entered into custody, explained his rights and then charged with the matters currently before the court."

Submissions

1. The applicant complains that the agreed facts for the offence of entering a building with the intent of committing an indictable offence do not as a matter of law establish the offence. The applicant pointed out that he had pleaded guilty to the common law offence of escape from police custody (see [22] above).
2. The single authority in NSW on the common law offence of escape is the decision of the Full Court of the Supreme Court in R v Tommy Ryan (1890) 11 LR (NSW) 171 ("Tommy Ryan"). In Tommy Ryan, Windeyer J observed at 196 that the offence of escape is a continuing offence. The applicant contends that Tommy Ryan should no longer be followed.
3. The applicant cited R v Scott [1967] VR 276 ("Scott") in which the Full Court of the Supreme Court of Victoria unanimously declined to adopt the reasoning in Tommy Ryan. Particular reference was made to the judgment of Smith J in Scott at 285-286. The applicant submitted that this Court would conclude that Tommy Ryan should not be followed and find the reasoning in Scott to be correct. The applicant pointed out that the conclusion that escape is not a continuing offence is supported by New Zealand authority which has considered this issue. In particular, the applicant cited the New Zealand decisions of R v Keane [1921] NZLR 581 ("Keane") at 583 and R v Kura [2008] NZCA 337 ("Kura") at [16].
4. Referring to the agreed facts to which he had entered his plea of guilty, the applicant argued that by the time he had entered the residence on Victoria Road ("the premises"), he had already committed the common law offence of escape. He was no longer in the direct vicinity of the police officers, who had lost sight of him. It was submitted that as the applicant could not be convicted of entering the premises with intent to commit the offence of escape, a miscarriage of justice had been occasioned and his plea of guilty should be set aside.
5. The Crown submitted that on the agreed facts, the applicant could in law be convicted of the offence charged. In addition to Tommy Ryan, Scott and the New Zealand decisions cited by the applicant, the Crown referred to R v Ryan and Walker [1966] VR 553 ("Ryan and Walker"), a joint judgment of the Full Court of the Supreme Court of Victoria (Winneke CJ, Hudson and McInerney JJ) at 562, in which the Full Court said that while an accused would be liable for the offence of escape immediately upon exiting a prison, it did not necessarily follow that an accused was "not still committing the offence at the stage when he is in the act of making good his escape after his emergence". The Crown submitted that insofar as it may be suggested that Ryan and Walker stands for the authority that a person is only committing the offence of escaping lawful custody when they are in the immediate vicinity of the area in which the person originally escaped, this submission should be rejected.
6. The Crown argued that the applicant's contention that Scott and the New Zealand decisions are authorities for the proposition that the common law offence of escaping lawful custody is complete when the offender is no longer in the immediate vicinity, sight or control of police should be rejected. The Crown cited a further New Zealand authority of R v Kafka [1962] NZLR 351 ("Kafka"). The Crown pointed out that the New Zealand decisions were not concerned with the common law offence of escaping lawful custody but rather with statutory offences under New Zealand legislation.
7. The Crown contended that the offence of escaping lawful custody was not complete by the time the applicant entered the premises. The Crown submitted, adopting the language in Ryan and Walker, that the applicant continued to commit the offence when he hid in the house "to make good his escape".
8. In oral argument, Mr Lange, submitted that the statute being considered by the New Zealand cases was similar to the offence of escape under s 310D of the Crimes Act. Mr Lange argued that the law of escape ought to be that "a person escapes from the moment he breaks free from his lawful custody until such time as he is no longer under the control of the person exercising lawful authority nor in his view". [1]

Consideration

1. In order for this Court to grant leave to the applicant to withdraw his plea of guilty to the offence contrary to s 114(1)(d) of the Crimes Act, the applicant must establish that upon the facts admitted by the plea he could not in law have been guilty of the offence: Meissner v The Queen (1995) 184 CLR 132 at 157 (Dawson J); [1995] HCA 41 ("Meissner"). A miscarriage of justice will have occurred if the applicant establishes he could not lawfully have been convicted of the charge of entering the premises with intent to commit the indictable offence of escape from lawful custody by hiding inside that dwelling house contrary to s 114(1)(d) of the Crimes Act: R v Liberti (1991) 55 A Crim R 120 at 121 (Kirby P, Grove and Newman JJ agreeing); Meissner at 157 (Dawson J); Nassr v R [2015] NSWCCA 284 at [5] (Meagher JA, Rothman and Bellew JJ).
2. The question in this ground of appeal is whether the applicant was continuing to commit the common law offence of escaping from lawful custody when he entered the premises or the offence was complete at the time police officers lost sight of him after he broke away.
3. It appears that this issue has not been considered by this Court since Tommy Ryan was decided in 1890. The relevant principle arising from Tommy Ryan is that the common law offence of escaping is a continuing offence. In that case, the offender escaped from Grafton Goal and eluded pursuit for two months. He was eventually arrested by a police officer without a warrant and taken to a lock-up at Copmanhurst, where he was held in a cell. A few days later, the same police officer entered the cell and attempted to handcuff the offender to take him back to Grafton Goal, but the offender resisted. During the struggle, the offender seized the officer's revolver and shot him in the face, incapacitating the officer and then escaped the lock-up. At trial, the jury acquitted the offender of intent to do grievous bodily harm but found him guilty of maliciously wounding although finding that the offender had used no more force than was necessary for his escape. The Full Court upheld the offender's conviction based on finding that the general verdict of the jury was correct.
4. The pertinent question for determination by the Full Court was whether the offender was committing the offence of escaping from lawful custody when he shot the officer. At 195-197, Windeyer J stated: "The view apparently taken by the Chief Justice [Darley CJ] at the trial was that the offence was complete as soon as the prisoner got outside the goal, and that as the arrest was not immediately after the prisoner committed the offence, the constable had no authority to arrest him without a warrant. The view of the law upon this point taken by his Honour appears to me erroneous. The offence of escaping is a continuing offence so long as the person escaping is keeping out of imprisonment. The offence has no doubt been committed, and is complete as an offence for which a man may be punished, directly he gets outside the gaol gates, though he should go no further, and be at once retaken; but he is no less committing his offence because after getting outside he runs away and eludes his pursuers. … In theory, though a man has escaped, his imprisonment is still continuing, and every hour that he remains out of and is defeating his imprisonment he is escaping. … That the law considers the imprisonment as still continuing when a prisoner escapes from his confinement is clear."
5. Innes J, at 199, agreed that the offender was still escaping because "clearly he was trying at the time of his arrest to make good his escape". Similarly, Foster J stated at 216 that: "[Escape] does not consist, as prison breach, of a single concentrated act, but is a condition - that of refusing to undergo imprisonment, and evading its infliction. It seems, therefore, to be a continuing offence, and the person is continually committing this offence as long as he evades the penalty of his sentence. An imprisonment, in like manner, is not the mere fact of putting in prison, and the person guilty of it is in the commission of the offence all the time that he restrains the liberty of the prisoner …"
6. In the present appeal, the applicant gave the following evidence during the proceedings on sentence about what occurred after he broke away from the police officers: "Q. You talked about being truly sorry. When you were fleeing police, you ran into the home of two elderly people, didn't you? A. Yes. Q. What do you want to say about that? A. I regret of(as said) what I done(as said). I wasn't thinking at the time. I wasn't in a right state of mind. Q. What about them? They would've been terrified. A criminal on the run comes through their house. A. Yes. Q. Their sanctuary, their castle, something they worked all their lives for. I'm just making a point to you, that's all-- A. Yeah, I understand, your Honour. To tell you the truth, I actually asked them permission for me to hide in their house. One of them agreed, and then disagreed, so I left. I know it was the wrong thing to do. Like I said, I wasn't in a right state of mind. I was on drugs. All I was thinking was to try to get away. It was just the heat of the moment, and the drugs were just controlling my mind at the time, and I'm not that person. I - that's not me, and I regret what I done and I'm, I'm very sorry for the victims. Q. You say they gave you permission to hide from the police? A. They gave me permission, but you could see that they were sort of pressured, so I left. Q. I might've got this wrong, there's a lot of detail in these facts. A. Yeah. Q. But weren't you arrested in the house? A. At the second house, yes. Q. I see, so you fled from that house into another house? A. Yes, I did."
7. From the applicant's evidence, it is plain that at the time he entered the premises he was fleeing from the police and tried to hide to make good his escape. He was in the process of escaping. In accordance with the principles enunciated in Tommy Ryan, the applicant is guilty of the offence.
8. The applicant places considerable reliance on Scott, a decision of the Full Court of the Victorian Supreme Court in late 1966.
9. Scott was preceded by around 5 months in 1966 by the joint judgment in Ryan and Walker. In that case, the applicants, Ryan and Walker, were charged with the murder of Hodson, a warden at Pentridge Gaol in Coburg Victoria, in the course of escaping from that gaol. Ryan was convicted of murder and sentenced to death, whereas Walker was convicted of manslaughter.
10. On appeal, the applicant Ryan complained that the judge erred in ruling that, for the purpose of establishing felony murder, the shooting occurred at a time when the applicants were committing an offence of escaping from lawful custody contrary to s 35 of the Gaols Act 1958 (Vic). Section 35 was relevantly as follows: "Every male person lawfully imprisoned for any crime misdemeanour or offence by the sentence of any court of competent jurisdiction … who escapes or attempts to escape from any gaol or from the custody of any member of the police force gaoler or other officer in whose custody he may be, shall be guilty of felony …"
11. This offence was later said in Scott by Smith J at 286 to mirror the common law offence of escaping from lawful custody. The applicant Ryan argued that the offence of escaping from lawful custody was complete as soon as he had cleared the external wall of the gaol. The trial judge ruled that the escape was not in fact complete as the applicants had not made good their getaway when the murder was alleged to have committed.
12. On appeal, the view taken by the trial judge was said to be supported by the decision in Tommy Ryan. In support of Ryan's contention that the construction adopted by the trial judge was erroneous, reliance was placed on Keane, a decision of the Supreme Court of New Zealand. The Full Court of the Victorian Supreme Court (Winneke CJ, Hudson and McInerney JJ) held that the trial judge's construction of s 35 of the Gaols Act was correct. The Full Court stated at 562: "Reading the section as a whole it appears to have been the dominant intention of the legislature to impose a penalty upon the persons lawfully imprisoned, whether in a gaol or elsewhere, in the event of their not remaining in the state of imprisonment to which they have been subjected unless lawfully authorised to leave the same. The view may be accepted that a prisoner who without such authority succeeds in leaving the gaol by complete emergence therefrom has incurred the penalty imposed on him by the section, but it does not necessarily follow from this that he is not still committing the offence at the stage when he is in the act of making good his escape after his emergence. Had it been proven, for instance, in what may be regarded as a classic case of felony murder - Director of Public Prosecutions v Beard [1920] AC 479; [1920] All ER Rep 21 - that the accused had killed the girl to stifle her cries after initial penetration but whilst still in the act of intercourse, could it be doubted that he was still in the course of committing a felony? We think not and for like reasons in the present case we have reached the conclusion that the felony created by s 35 was still being committed by the applicants at the time when they were endeavouring to elude pursuit outside and in the immediate vicinity of the gaol."
13. The Court was of the view that it was a matter of fact for the jury to determine when the process of escaping had been completed. The Court said at 563: "Although it was not raised as a ground of appeal, it was argued before us that on this interpretation of the section the question whether the applicants had completed the process of escaping from gaol prior to the shooting or were still in the process of escaping at that moment was a question of fact for the jury to determine, and that the trial judge did not leave that issue to it but instead directed it on the basis that the escape had not been completed. This may be accepted, and to that extent the learned judge withdrew from the jury an issue which properly should have been left to it. But on that interpretation of the section, we are of opinion, having regard to the evidence, that a jury properly instructed could not reasonably have failed to draw the inference that the applicants were still in the process of escaping from gaol at the time of the shooting. Consequently, even if this point of appeal were to be decided in favour of the applicant no substantial miscarriage of justice has actually occurred."
14. In Scott, while serving a sentence of imprisonment at Beechworth Training Prison, the appellant went missing from a working group clearing timber under the supervision of a warder outside the gaol buildings. After the appellant went missing, he travelled to Sydney and committed a robbery. On expiration of his sentence in Sydney, the appellant was extradited to Victoria on a charge of unlawfully escaping from lawful custody contrary to s 35 of the Gaols Act.
15. At trial, the appellant gave evidence that during the timber clearing, he was struck over the head with a piece of wood by another prisoner, Mr Wilson, and lost consciousness. When he regained consciousness, he realised he was out of the custody of the gaoler and did not want to return to face Mr Wilson who had assaulted him and had threatened to harm him on numerous previous occasions. At issue was whether, if the appellant's account was accepted, he could be found guilty of escape at law by finding himself involuntarily at large and deciding to remain so.
16. The Crown relied upon the decision of Tommy Ryan to support the contention that as the offence of escape was a continuing one, the offence could be committed in circumstances where the person found themselves out of custody and "decided not to give himself up". In rejecting this argument, Smith J said at 285: "I am unable, however, to see force in this argument; for if the offence of escape was not committed by the appellant at Beechworth on 2 May, there was no starting point from which the offence could be regarded as still continuing at the time when he became conscious."
17. It was against this background that Smith J considered the case of Tommy Ryan and concluded that it was not "satisfactory authority" for the following reasons at 285-286: "In the first place, the view there adopted, that the offence of escape continues to be committed until recapture, would involve that, years after a prisoner had regained his freedom, any person who, with knowledge of the escape, helped him to avoid detection, would be a principal offender in an offence of escape then and there being committed; yet in the long history of this crime there is not, so far as I have seen, any indication that such a charge has ever been laid in respect of such assistance. Secondly, the suggested doctrine of continuance is contrary to the view which has long been settled law in New Zealand: see R v Keane, [1921] NZLR 581; R v Otto, [1951] NZLR 602, at p. 615; R v Kafka, [1962] NZLR 351. Thirdly, the reasoning by which the conclusion as to continuance was supported in R v Tommy Ryan, supra, does not appear to me persuasive. It was there said that in theory the imprisonment of an escapee continues after he has gained his freedom. But if this fiction were adopted it would not be easy to see how the crime of escape could exist. Moreover, the authorities that were cited in support of the fiction appear, upon examination, to do no more than support two much narrower propositions. Of these the first is that, where a gaoler recaptures his prisoner after an escape, the prisoner cannot rely upon the fact that he was at large in a different county when retaken, or upon the fact that the gaoler has been punished for negligently permitting the escape, as making the retaking and subsequent imprisonment unlawful. The second is that a gaoler who has recaptured his prisoner after an escape may dispose of him as though he had never escaped, because after such a recapture "in supposition of law he was always in custody" of that gaoler: see Hale PC vol. 1, pp. 581, 602: Hawkins PC vol. 2, Ch. 19, s. 12; Anon., 6 Mod., Case 339; Sir William Moore's Case (1704) 2 Ld Raym 1028; 92 ER 183. If for these particular purposes there is a fiction as between prisoner and gaoler that the actual custody continues, then the case, as it appears to me, is one for the application of the principle stated in Hawkins PC vol. 2, ch. 18, s. 14, that "fictions of law are never carried farther than the necessity of those particular cases, which were the cause of the inventing them, doth require". Compare also R v Tommy Ryan (1890) 11 LR (NSW) 171, per Foster, J, at p. 215. Another argument put in that case was that escape should be regarded as an offence which continues to be committed until recapture in the same way as larceny continues to be committed after the commencement of the asportavit and until its termination. But this argument by analogy appears to assume the conclusion to be proved. If one assumes that escape consists in obtaining one's freedom and continuing at large thereafter, the analogy applies in one way; if one assumes that escape consists in obtaining one's freedom, it applies in quite another way. Yet another reason given was that escape differs from what was conceded to be the non-continuing offence of prison breach, in being not a single concentrated act, but a condition of refusing to undergo imprisonment and evading its infliction. But to say this appears, once again, to assume the conclusion. If one assumes that escape consists in the obtaining of freedom then the act is no less and no more concentrated than prison breach. The true legal position is that prison breach is merely an escape effected by force. A distinction between the two crimes was sought to be made by pointing out that in Hawkins PC, vol. 2, ch. 17, s. 5 it is said, in relation to escape, that all persons are bound to submit to the judgment of the law and that to free oneself from an imprisonment imposed by law is to be guilty of "a high contempt". But Hawkins also states that prison breach is contempt; and it seems clear that in calling these two crimes contempts the author was not intending to express any view as to whether they were offences which continued to be committed after freedom had been gained."
18. Smith J then held at 286: "For these reasons, I consider that there is no foundation for the view contended for on behalf of the Crown that the offence of escape is committed when a prisoner who has not been discharged or released according to law finds himself innocently at large and decides not to give himself up."
19. Barry J said at 278: "The common law was concerned rather with prisoners in custody for trial than with those imprisoned in execution of sentence (Encyclopaedia of Laws of England, 2nd ed., vol. 11, p. 572), and I was at first attracted by the opinion of the majority of the Supreme Court of New South Wales in R v Tommy Ryan (1890) 11 LR (NSW) 171; 6 WN (NSW) 162, that the offence of escaping from lawful custody continues while the offender is unlawfully at large, a decision which was discussed, apparently with approval, by the Full Court (Winneke, CJ, Hudson and McInerney, JJ) in R v Ryan and Walker, [1966] VR 553. However, the exposition of the common law given by Smith, J, is convincing, and I agree that if the presentment is regarded as charging the common law offence, the defects of the judge's charge to the jury are such that the appeal must succeed."
20. It is apposite to observe that the factual circumstances in Scott are far removed from the present case. Critical to the reasoning of Smith J was that the appellant being rendered unconscious found himself to be "innocently at large". Scott is authority for the proposition that the offence of escape cannot be committed by finding oneself at liberty and deciding not to give oneself in, that is, escaping must be a conscious and intentional act.

New Zealand authorities

1. In Keane, a 1921 decision of the New Zealand Court of Appeal, the accused, Mr Keane was charged with assisting a prisoner in escaping or attempting to escape from lawful custody contrary to s 145 of the Crimes Act 1908 (NZ) (now s 120 of the Crimes Act 1961 (NZ)). The accused was alleged to have assisted in the escape as he met with the prisoner outside of prison at a hotel in Auckland and lent him some clothes. The question for the New Zealand Court of Appeal was whether the prisoner was escaping or attempting to escape from lawful custody at the time the accused had assisted him. The Court of Appeal expressed the view that once the prisoner had regained his liberty it was clear he had already escaped and therefore, impossible for the accused to have assisted the prisoner in escaping. The Court ultimately held that escape was not a continuing act and introduced a test for determining the completion of an escape based on sight and control of police officers or prison officials. Sim ACJ (delivering judgment for the Court, which also comprised Hosking, Stringer and Salmond JJ) said at 583: "If a prisoner has regained his liberty by getting away from the precincts of the prison, and also from the sight and control of all the prison officials, he then has made his escape, and is no longer in lawful custody."
2. In Kafka, a 1960 decision of the Supreme Court of New Zealand, a prisoner who had been sentenced to life imprisonment for murder, evaded his gaolers and hid in the roof of the prison. The accused, Mr Kafka, supplied the prisoner with food and was charged with assisting the prisoner in an attempt to escape from lawful custody. Counsel for Mr Kafka relied on the decision of Keane to submit that at the time Mr Kafka assisted the prisoner, the prisoner was no longer in lawful custody and had made good his escape. TA Gresson J found that "in reality and in law" the prisoner was still in lawful custody as he had not physically got outside the precincts of the goal despite his whereabouts being unknown. His Honour said at 352: "He had not regained his liberty and was still effectively and physically detained within the precincts of the Mt. Eden gaol, notwithstanding the fact that his precise whereabouts were unknown to his gaolers … [The prisoner] was still physically detained within the prison precincts, and though in hiding, which was his first step in attempting to escape, he could in no real sense of the word be said to have regained his liberty."
3. In Kura, a 2008 decision of the New Zealand Court of Appeal, Mr Kura had been granted bail on the condition that he not enter licenced premises or consume alcohol. After locating Mr Kura in a bar, police officers arrested him but as they did, he ran off down the road. The appellant remained at all times within the sight of the officers. He was convicted by a jury of injuring two police officers with intent to escape and of escaping from custody. The question for the Court of Appeal was whether the appellant had truly "escaped" because he was never out of the sight of the officers. The Court stated the present case was factually different to Keane and that the real issue was not whether the officers had lost sight of Mr Kura but rather whether they had lost control over him. The Court (O'Regan, Chisholm and Ronald Young JJ) held at [16]: "The key question as to whether the escape was complete was not whether the police officers could see the appellant but whether the officers had lost control of the appellant. Here the appellant had removed himself from where he had been arrested against the will of the police officers. The officers had no control at that stage over the appellant. His escape was therefore complete."
4. In Kura, the New Zealand Court of Appeal departed from a strict application of the binary factors in Keane of out of sight and loss of control to determine when an escape was completed. The Court established that the relevant consideration when a person is running away from arresting officers is whether that person has escaped lawful custody in the sense that the officers have lost control over the person after the arrest. In such a case, whether the person running away was out of sight of the officers was not required to conclude that they had escaped lawful custody.
5. The reasoning of the New Zealand Court of Appeal raises a number of questions. Is there any temporal qualification to a loss of control? Is an escape complete when a prisoner initially breaks free from the control of the officers but is brought back under their control within minutes? Does it accord with reality that despite a momentary loss of control of a prisoner, that escapee may still be pursued and may still hide from officers yet be considered to have completed his escape? Does the concept of loss of control place an artificial limitation on the common law offence of escape (bearing in mind that the New Zealand authorities were considering New Zealand legislation)?

United Kingdom authorities

1. Two UK Court of Appeal decisions have relevantly considered the elements of the common law offence of escaping from lawful custody: See, eg, R v Dhillon [2005] EWCA Crim 2996; [2006] 1 WLR 1535 ("Dhillon"); R v Reid (Stuart William) [2015] EWCA Crim 597 ("Reid").
2. In Dhillon, the defendant was arrested and after being taken to the police station, it appeared he might have suffered a knee injury. He was then taken by a police officer to hospital to receive treatment. At the hospital, after the defendant had received his treatment, he went back into the hospital waiting room but noticed that no police officers were waiting for him. Seeing no police officers, he left the hospital and went home. The defendant was convicted by a jury of the common law offence of escaping from lawful custody. On appeal, the defendant argued that the trial judge had inadequately directed the jury as to the elements of the offence. The Court of Appeal allowed the appeal and quashed the defendant's conviction because of the inadequate direction to the jury on the ingredients of the offence: at [26]-[27]. Steel J, delivering judgment for the Court, after conducting a review of the relevant UK authorities relating to the offence of escaping summarised them at [21]: "In our judgment, these authorities demonstrate that the prosecution must in a case concerning escape prove four things: i) that the defendant was in custody; ii) that the defendant knew that he was in custody (or at least was reckless as to whether he was or not); iii) that the custody was lawful; and iv) that the defendant intentionally escaped from that lawful custody."
3. In Reid, Lord Thomas of Cwmgiedd, the Lord Chief Justice of England and Wales, emphasised that the common law offence of escape from lawful custody was ultimately a question of fact. In that case, John Anslow was a prisoner and whilst being transported to court, a gang of three men attacked the prisoner transport van and facilitated Mr Anslow's escape. The applicant, Mr Reid, had provided Mr Anslow with a telephone number in a coded Christmas card and copies of Mr Anslow's passport were found at Reid's home. It was alleged that the copies were to be used to assist Mr Anslow obtain further documents. The applicant was charged with conspiracy to escape.
4. The Lord Chief Justice said at [13]: "… I do not accept that the common law offence of 'escape' ended after Anslow left the van and no one was in immediate pursuit. This is to impose an artificial limitation. Although the escapee will in due course become a fugitive, it is a question of fact as to when the circumstances that are intrinsically related to the escape end, and his position changes into 'life on the run'."
5. In my view, the approach taken by the Lord Chief Justice in Reid to the common law offence of escape is sensible. It is not constrained by the imposition of boundaries such as the lack of immediate pursuit, loss of control or being out of sight. It accords with common sense and does not overcomplicate this area of the law. However, there is a temporal limitation to the offence. Escape does not continue indefinitely as there will come a time that the escape has been completed such that the escapee becomes a fugitive from justice. The emphasis placed on a factual finding mirrors what was said in Ryan and Walker in the passage extracted at [44] above.
6. In the present case, as I have stated at [38] above, the applicant was in the process of escaping when he entered the premises. A jury, properly instructed, could not reasonably reach any other conclusion.

Should Tommy Ryan no longer be followed?

1. Neither party suggested that a five-judge bench be constituted, although convening such a bench is not always a necessity before this Court can consider whether to depart from an earlier intermediate appellate decision: Moriarty v Nye [2024] NSWCCA 116 at [98]-[99] (Kirk JA, Wilson and Yehia JJ).
2. Given the conclusion I have reached above at [62], it is not necessary in the present case to resolve whether Tommy Ryan should be overruled. In any event, I am not persuaded that Scott and the New Zealand authorities discussed have established that Tommy Ryan is plainly wrong and that there are compelling reasons for this Court to depart from it: Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76; Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 at [72]-[76] (Bell CJ, Gleeson JA, Harrison, Adamson and Dhanji JJ agreeing).
3. In my view, the New Zealand authorities should not be followed in this State. The common law offence of escape is a continuing offence. As to Tommy Ryan, I express my reservation about the offence continuing so long as the person escaping is kept out of imprisonment. It seems to me there will be a time when as a question of fact, the escape has been completed. However, that is not an issue that arises in the present case and my observation does not alone justify overruling Tommy Ryan.
4. The applicant has not established that upon the agreed facts he could not in law have been guilty of the offence. I would dismiss Ground 1.

Ground 2 - commencement date of the aggregate sentence

Submissions

1. The applicant referred to the Crown sentencing summary before the judge, correctly noting that a number of offences had been committed while he was subject to an intensive corrections order ("ICO") or parole. The document also correctly noted that the parole had not been revoked as a result of the offending with which the judge was dealing. This was confirmed by the applicant's custodial history. The applicant pointed out that although there had been a previous revocation of parole, that revocation was rescinded, and in any event, related to prior offending which resulted in the imposition of an ICO. Although it was not referred to in the Crown sentencing summary, the applicant's ICO was also not revoked as a result of his offending.
2. The applicant's complaint was that, when dealing with the appropriate commencement date of the aggregate sentence, the judge stated: [2] "I am going to allow some concurrency with matters that he was previously serving time for, I think the ICO and balance of parole."
3. The applicant contended that in doing so the judge fell into error by taking into account irrelevant considerations, namely the applicant supposedly having "previously serv[ed] time" for revocations, which had not in fact taken place. The applicant submitted that the judge appears to have misunderstood his custodial history.
4. Another argument was that if the Court was to conclude that the judge had not mistakenly thought that the applicant's time in custody was referrable to revocations of parole and an ICO, it was nevertheless erroneous for his Honour to proceed on the basis of a "notional" revocation of those orders. The applicant cited Skondin v R [2006] NSWCCA 59 at [16]-[17] (Simpson J, Spigelman CJ and Adams J agreeing).
5. The applicant accepted that he was not necessarily entitled to have his aggregate sentence commence on the date of his arrest, since subsequent to his arrest he was sentenced to imprisonment for a period of 6 months, commencing on 19 January 2022 and concluding on 18 July 2022 for an offence of driving whilst disqualified.
6. The Crown argued that the judge's language being "I think" relating to the "ICO or parole" does not demonstrate that the judge acted on the basis that the applicant's ICO or parole had been revoked. The Crown also relied on the sentence summary provided to the judge at the sentence hearing which stated that parole was neither revoked nor could it be revoked, and on the applicant's counsel's advice to the judge that the ICO had not been revoked. Furthermore, both the Crown and the applicant's counsel informed the judge that the applicant had served six months in custody for an offence of driving whilst disqualified during the period of pre-sentence custody. The Crown pointed out that it was by reference to this offence only that the Crown submitted to the judge that an appropriate commencement date was between December 2021 and July 2022.
7. The Crown argued that the applicant's submission that the judge may have regarded the balance of the ICO as being "notionally revoked" should be rejected as there was no mention of the ICO being notionally revoked. Furthermore, the submission was irreconcilable with the judge's sentencing remarks.
8. The Crown submitted that the judge's mistaken attribution (in somewhat equivocal terms, that is, "I think") to an "ICO and parole" was not a material error which had the capacity to guide or affect the determination of the commencement date of the sentence.

Consideration

1. In written submissions to the judge, the Crown had brought to his Honour's attention that "although the [applicant] served a total of 1 year and 10 months overall in custody, 6 months was served in custody whilst serving a sentence for an unrelated matter". [3] The Crown submitted that "a commencement of sentence date in between 30/12/2021 and 18/07/2022 might be warranted in [the] courts discretion".
2. The "unrelated matter" referred to by the Crown in written submissions was an offence of driving while disqualified for which the applicant was sentenced in the Local Court to a fixed term of imprisonment of 6 months to date from 19 January 2022 to 18 July 2022.
3. In the applicant's written submissions to the judge, his Honour was informed that the applicant had been arrested on 30 December 2021 and had remained bail refused. It was submitted that he had been in custody for about 1 year, 10 months and 19 days. However, during the period 19 January 2022 to 18 July 2022, he had served 6 months imprisonment for a sentence imposed in the Local Court.
4. In the proceedings on sentence, during discussions concerning pre-sentence custody with the applicant's counsel, his Honour was informed that the ICO was not revoked and his Honour should put that aside. His Honour then said: [4] "Yes, okay. Not revoked, put it to one side. Yes. Yes, all right."
5. It was made clear by the parties to the judge that the only sentence which required consideration in the exercise of his discretion in calculating the commencement of the sentence was the fixed term of imprisonment of 6 months. However, in his remarks on sentence, his Honour said: [5] "I am going to proceed by way of indicative sentences and therefore I am going to proceed by way of an aggregate sentence. I am going to backdate it. I am going to allow him some concurrency with matters that he was previously serving time for, I think the ICO and balance of parole. There seemed to be a little window in there as well so in my discretion I am going to backdate it to a point in time which will be 20 March 2022."
6. By commencing the sentence on 20 March 2022, the judge backdated the sentence by 1 year and 8 months. As at the date of sentence, the applicant had served 1 year, 10 months and 22 days in custody, of which 1 year, 4 months and 22 days were solely referable to the offences for which he was being sentenced. The concurrency with the sentence that "he was previously serving time for" was 2 months, which suggests that his Honour had in mind the 6 month sentence imposed in the Local Court.
7. As has often been stated, the commencement date of the 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 for the applicant's challenge to the commencement date to succeed: Delaney v R [2013] NSWCCA 150; (2013) 230 A Crim R 581 at [60] (Hoeben CJ at CL; Harrison and Beech-Jones JJ (as their Honours then were) agreeing); Refaieh v R [2018] NSWCCA 72; (2018) 272 A Crim R 245.
8. Furthermore, it is well established that an error made by a sentencing judge must amount to a "material error" so that the sentencing discretion miscarried. As Wright J (with whom Basten JA and Price J agreed) observed in Rizk v R [2020] NSWCCA 291 at [71]: "When a judge acts upon wrong principle or allows extraneous or irrelevant matters to guide or affect the determination of a sentence, the sentencing discretion will have miscarried: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ). Nonetheless, in Kentwell it was also recognised, at [42], that not all errors in the sentencing of offenders vitiate the exercise of the sentencing judge's discretion. Consequently, the question may arise whether an error was 'material' in that sense."
9. The expression by his Honour of the words "I think" suggests some uncertainty. However, I am not persuaded that his Honour had in mind any period in excess of 6 months which the applicant had served in pre-trial custody. Should his Honour have been mistaken in his understanding that that period of pre-trial custody resulted from a revocation of the ICO and balance of parole, I am not persuaded that the error had a material impact on the exercise of discretion as to the commencement date of the sentence. The commencement date of 20 March 2022 was well within the proper exercise of his Honour's discretion.
10. There is no merit in the applicant's alternative submission concerning "notional" revocations of an ICO and parole.
11. Ground 2 of the appeal has not been established.

Ground 3 - incorrect maximum penalty

1. The Crown's concession that his Honour was in error in indicating the sentences for the two driving whilst disqualified offences is correctly made and should be accepted. These are offences H85166214/2 and H85199222/5 in the table at [5] above. The maximum penalty for both offences, being driving whilst disqualified (with prior offending) contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW), was a term of imprisonment of 12 months. The maximum penalty had been reduced from a period of 2 years imprisonment down to 12 months as a result of the amendments made by Schedule 1, item [3] of the Road Transport Amendment (Driver Licence Disqualification) Act 2017 (NSW), which commenced on 28 October 2017.
2. During the proceedings on sentence, his Honour noted that "the maximum penalty has been halved", however he appeared to overlook this when announcing the indicative sentences. Unfortunately, this seems to be due to the Crown sentencing summary which stated that the maximum penalty was 2 years imprisonment which was not corrected during the proceedings on sentence. During his remarks on sentence, his Honour said that he relied on the maximum penalties "as set out in the table" and "they are guideposts in my sentencing task". [6]
3. The indicative sentence for offence H85166214/2 was 12 months imprisonment with a 12 month licence disqualification. For offence H85199222/5, the indicative sentence was 14 months imprisonment with a 12 month licence disqualification. By indicating sentences of imprisonment which were either equivalent to the maximum or in excess of the maximum penalty notwithstanding a 25% discount for the guilty pleas, it is plain that his Honour acted on the incorrect maximum penalty.
4. In my view, acting upon the erroneous maximum penalty had the capacity to materially impact the aggregate sentence imposed. I am satisfied that an error of the type referred to in House v The King has been demonstrated: Andreata v R [2015] NSWCCA 239 at [28] (Beech-Jones J, Ward JA (as their Honours then were) and Adams J agreeing); Kandemir v R [2018] NSWCCA 154 at [66] (Price J, Beazley P and R A Hulme J agreeing).
5. Given that the sentence imposed was affected by error, it is accordingly necessary for this Court to re-exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ).
6. Ground 3 of the appeal has been established.

Proposed Ground 4 - new and fresh evidence relating to the applicant's sexual abuse in juvenile detention

1. Before proceeding to re-exercise the sentencing discretion, it is appropriate to address proposed ground 4 as it is relevant to that process.
2. As has been stated at [7] above, the applicant's counsel at the commencement of the hearing sought leave to advance a fourth ground of appeal. The applicant's counsel handed up to the Court written submissions in support of that application.
3. Both parties were granted leave to file further written submissions.
4. The Court has received written submissions from the Crown dated 22 November 2024 and further supplementary written submissions on behalf of the applicant dated 4 December 2024 and 18 December 2024.
5. Shortly stated, the Crown opposes the application and submits that this Court should decline to admit the fresh and new evidence tendered by the applicant.

Submissions

1. The applicant's fourth ground of appeal contends that the judge erred in the finding his Honour made in sentencing remarks that the applicant had "been physically mistreated but not sexually in a custodial environment as he articulates". [7] The custodial environment referred to is Reiby Juvenile Justice Centre ("Reiby").
2. The applicant contends that the proposed ground is based upon the availability of fresh and new evidence. The fresh evidence was annexed to an affidavit affirmed by the applicant's solicitor, Ms Howard, on 15 November 2024 (MFI A). The annexure is a letter from Gerard Malouf & Partners dated 15 November 2024, which states that the applicant had received a confidential settlement in relation to "a compensation claim for historical abuse". In her affidavit, Ms Howard notes that she is instructed that the compensation claim settled after the sentence proceedings before the judge.
3. In a further affidavit of Ms Howard, affirmed 15 November 2024 (MFI B), a letter dated 15 February 2023 by the Director of Communities and Justice to the applicant is annexed. The letter includes the following: "I write to you in my capacity as a Director with the Department of Communities and Justice. On behalf of the State of New South Wales, I wish to sincerely and unreservedly apologise for the abuse you suffered within Reiby Juvenile Justice Centre. … I am also saddened to read about the physical, emotional and sexual abuse that you endured during your time spent in juvenile detention."
4. Both the applicant and the Crown agree that the letter annexed to MFI A is "fresh evidence" as it relates to a settlement concluded after the sentence proceedings. Both parties also agree that the letter annexed to MFI B is "new evidence". This evidence was available but not used, or in the exercise of reasonable diligence able to have been obtained at the time of sentence: Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [107] (Simpson J, Davies J and Grove AJ agreeing).
5. The applicant submits that this additional evidence is material as his Honour's rejection of the applicant's account of sexual assault must have led to the rejection of Dr Allnutt's conclusion, expressed in Dr Allnutt's report of 16 August 2021 ("the Allnutt report"), of there being a causal connection between the abuse and the aggravation of the applicant's various mental conditions.
6. The applicant contends that on the basis of Dr Allnutt's report, the judge ought to have concluded that his moral culpability was moderated to a greater extent than the judge found.
7. A further affidavit of Ms Howard was filed on 4 December 2024 without the leave of the Court being sought. When reminded of the obligation to seek leave, the applicant's counsel sought leave to read the affidavit in order to support the arguments advanced for the addition of ground 4. The applicant submits that this affidavit confirms the reason why the material in relation to the settlement was not in possession of the applicant's solicitors. Furthermore, it provides the explanation that some of the documentation was not available at the sentence hearing because the finalisation of the civil settlement postdated the sentence hearing.
8. The Crown opposed this affidavit being read.
9. In this affidavit, Ms Howard annexes a copy of the statement of claim received on 27 November 2024 from Gerard Malouf & Partners and copies of two letters from these solicitors to the applicant dated 19 April 2024. The statement of claim is "new evidence" and the letters "fresh evidence".
10. The Crown submits that the additional evidence would not have had a real bearing on the exercise of the sentencing discretion. The first reason advanced by the Crown is that the "fresh evidence" does not identify the nature of the "historical abuse" or any terms of the settlement. Secondly, the findings of the judge as to the sexual abuse did not in this case have a real bearing on the exercise of the sentencing discretion as the judge did not reject Dr Allnutt's opinion that the abuse suffered at Reiby aggravated the applicant's pre-existing substance abuse disorder. The Crown submitted that the judge referred, without demurrer, to Dr Allnutt's opinion to this effect. His Honour's findings that the applicant had been physically abused at Reiby provided the evidential basis for acceptance of this opinion.
11. The Crown referred to the judge declining to find that the applicant's mental health conditions were causally related to the offending. The Crown pointed out that Dr Allnutt having prepared his report prior to the commission of the offences did not proffer an opinion on this issue. The Crown argued that this finding was not impacted by the judge's finding about sexual abuse.
12. The third reason advanced by the Crown was that notwithstanding the finding of no causal connection, the judge did accept that the applicant had reduced moral culpability, albeit "only to a limited degree". [8]
13. The Crown argued that neither the new nor the fresh evidence has the potential to impact his Honour's finding or to increase the degree to which the moral culpability would be reduced.
14. Another argument made by the Crown was that error by the judge had not been established as his Honour's conclusion was reasonably open on the evidence. In written submissions in reply, the applicant emphasised that it is not suggested that the judge ought on the material before him have found that the applicant was sexually mistreated. The proposed ground of appeal was based on the availability of fresh and new evidence.
15. The applicant submitted that the ultimate question is whether, if the evidence is admitted, this evidence leads this Court to conclude that a lesser sentence is warranted in law.
16. The applicant argues that a finding he had been sexually mistreated would have provided insight into his psychological state and only with full appreciation of what occurred could the judge understand the degree to which the development of his antisocial personality disorder, in particular, had been affected by matters outside of his control.

A summary of the evidence before the judge as to the abuse of the applicant at Reiby

1. The Allnutt report was not prepared for the applicant's sentence proceedings but for his personal injury claim arising from the abuse the applicant sustained in 2000 and 2001 at Reiby. The documentation provided to Dr Allnutt included a sealed copy of a statement of claim and the applicant's statement dated 31 March 2021.
2. Dr Allnutt recorded that the applicant was at Reiby for two months. The applicant reported that he was abused by three people - Julian, Big Mike and Nadia. The episodes of abuse occurred separately. Julian abused him by coming into his room and bashing him around the head and body because he was "cheeky". On the second occasion, Julian came into his cell and started bashing him. Julian hit him so hard that he lost consciousness. The applicant woke up with his clothes ripped, the cell locked and blood coming out of his anus. Big Mike bashed him physically in his cell a number of times. Nadia would come into his cell, fondle his penis and stimulate him until ejaculation.
3. Dr Allnutt was of the opinion that the applicant manifested a constellation of symptoms consistent with post-traumatic and depressive symptoms. He was also diagnosed with an antisocial personality disorder and substance use disorder in early remission.
4. As to the causation of the applicant's mental health difficulties, Dr Allnutt stated that "[r]eliably establishing causation is limited by the passage of time in cases of historical sexual abuse. Not all victims of childhood sexual abuse (CSA) develop mental health difficulties …" [9]
5. Dr Allnutt went on to note that the applicant entered Reiby as a vulnerable youth. The abuse factors he experienced would have compounded his antisocial symptoms. Dr Allnutt opined that the "applicant has likely experienced ongoing chronic post-traumatic stress symptoms through his life, which have probably fluctuated in intensity". [10]
6. Dr Allnutt reported there was evidence that the applicant "was manifesting the emergence of an antisocial personality disorder (conduct disorder) and a substance use disorder before entering Reiby". Dr Allnutt noted that "[a]bout half of children manifesting conduct disorder in childhood go on to develop an antisocial personality disorder in adulthood". Dr Allnutt concluded, "[o]n balance, it is likely that [the applicant] would have continued to pursue an offending and substance-using lifestyle, but in my view, the index injury (given the circumstances) aggravated his antisocial personality and substance abuse disorder". [11]
7. Dr Allnutt opined that the applicant's prognosis was relatively guarded. He stated that "[i]t is fair to say that as people with antisocial personality disorder age their offending begins to diminish particularly when they reach your client's age, but his prognosis, at this stage, is guarded".
8. In addition to Dr Allnutt's report, the written material before the judge included an unsworn affidavit of the applicant's brother Youssef Elali who stated at [5]: "The [applicant] went to juvenile detention from a young age due to the fact that he didn't care about getting in trouble. He spent some time at [Reiby] and was abused by three different people both physically and sexually. The [applicant] has been engaging with a lawyer to commence a civil claim in relation to the abuse he experienced."
9. Justice Health Records dated 22 May 2022 recorded that the applicant reported "trauma from physical and sexual abuse at [Reiby] when he was 13-14 years old".
10. In his oral evidence before the judge, the applicant confirmed that the first time he had told anyone of the abuse at Reiby was when he spoke to Dr Allnutt.

The finding by the judge concerning the applicant's sexual abuse

1. The applicant does not suggest that the judge's findings were not open on the evidence before his Honour. Rather, the applicant challenges the judge's findings on the basis that the availability of new and fresh evidence placed before this Court was capable of affecting the outcome of the sentencing proceedings such that a different and more favourable finding would have been made in relation to the applicant's sexual abuse at Reiby and in those circumstances, there has been a miscarriage of justice.
2. It is apparent that the judge found there were some inconsistencies in the applicant's evidence. As to the applicant's testimony of the abuse at Reiby, his Honour remarked: [12] "In relation to an account that he was sexually mistreated and physically assaulted at Reiby, it seems to be said in evidence, the first person he told was Dr Allnutt. That is inconsistent given that Dr Allnutt was apparently provided a report, to confirm allegations made in the filed statement of claim of 7 July 2021 as well as an executed statement of 31 March 2021. It seems not easily explicable by lack of memory, if indeed this was a wholly truthful and reliable account and without for one moment wanting to downplay the seriousness of sexual misconduct to children, the particulars here are brief. The most egregious aspects at Reiby seem to be violence and then there is an inference which I am invited to draw of a sexual assault. There is no actual assertion as to the mechanism or the enduring consequences."
3. His Honour made the following findings later on in his sentencing remarks: [13] "I am prepared to accept that he has some aspects of social deprivation. I am inclined to accept that he has been physically mistreated but not sexually in a custodial environment as he articulates. I am prepared to accept that he has got some disorders which have manifested themselves and precluded him from developing a moral compass in the manner of people who were not similarly treated. Nonetheless, I do not intend to find, and cannot to any standard, that he has a mental condition which is causatively or contextually related to the offences that were committed in this tranche of offending. I am not prepared to accept [the applicant's counsel's] argument in relation to the extent to which moral culpability ought be reduced, however I do consider that it is appropriate to reduce his moral culpability but only to a limited degree and I have regard to DS and DM v The Queen [2022] NSWCCA 156 in that respect."

Should the further affidavit be read?

1. The Crown opposes leave being granted for the applicant to read the affidavit of Ms Howard filed on 4 December 2024: see [103]-[105] above.
2. During the hearing of the appeal, this Court granted leave to the parties to file written submissions. No order was made granting leave to file additional evidence. This Court has emphasised that in only exceptional circumstances will parties be permitted to file supplementary submissions without leave after the hearing of the appeal: Nguyen v R [2008] NSWCCA 322 at [30]-[31] (Tobias JA, James and Price JJ agreeing); Roach v R [2019] NSWCCA 160 at [191]-[192] (Bathurst CJ, Bell P (as his Honour then was) and Johnson J). This principle must also apply to additional evidence. The hearing is the time and place to present evidence.
3. The statement of claim and letters annexed to the affidavit could have been obtained from Gerard Malouf & Partners well before the hearing.
4. The applicant has not demonstrated that exceptional circumstances are present so that the affidavit may be read.

Consideration

1. I turn now to the affidavits of Ms Howard affirmed on 15 November 2024 and marked respectively MFI A and MFI B.
2. It is unfortunate that the applicant's legal representatives in the proceedings before the judge appear not to have made some enquiries of the solicitors who were acting for him in his compensation claim for historical abuse against the State. The exercise of reasonable diligence would have obtained a copy of the letter from the Director of Communities and Justice annexed to MFI B which I have quoted in part at [99] above. The apology in that letter provides significant support for the applicant's claim of sexual abuse. It is not necessary for this Court to consider any issue bearing upon the competence of the applicant's legal representatives in failing to place that material before the judge and neither is there a ground of appeal that makes that challenge: Pym v R [2014] NSWCCA 182. However, it is relevant to have regard to the recent decision of Shortland v R [2024] NSWCCA 174 ("Shortland"), where Stern JA (with whom Cavanagh and Sweeney JJ agreed) held at [45]-[49] that irrespective of whether there was any incompetence of counsel, a miscarriage of justice may arise where "material evidence was available and relevant to the sentence" but the applicant was "deprived of the opportunity to have that material considered in mitigation of the sentence": at [46].
3. The principles relating to the admission of fresh or new evidence on appeal were summarised by Hamill J (with whom Gleeson JA and Ierace J agreed) in Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483 at [24]-[34] ("Barnes").
4. Whilst this Court does not readily receive new evidence, the Court's jurisdiction is concerned with the prevention of a miscarriage of justice: Barnes; Shortland. In this case, the evidence sought to be relied upon by the applicant is both "fresh" and "new" evidence. Viewed in combination with the Director's letter, a plainly available inference from the fresh evidence in MFI A is that the settlement embraced his claim for both physical and sexual abuse.
5. The question remains whether the additional evidence may have had a "real bearing" upon the exercise of his Honour's sentencing discretion: R v Goodwin (1990) 51 A Crim R 328 at 330 (Hunt J, Grove J agreeing); Kaveh v R [2017] NSWCCA 52 at [33] (Latham J, Basten JA and Campbell J agreeing).
6. I am satisfied that had the fresh and new evidence been before the judge that his Honour would have found on the balance of probabilities that the applicant had been both physically and sexually abused at Reiby: Da Silva v R [2024] NSWCCA 216 at [18] (Stern JA, Dhanji and Faulkner JJ agreeing).
7. I reject the Crown's contention that a finding of sexual abuse would not have had any impact on his Honour's assessment of moral culpability or on the question of causation: R v AGR (Court of Criminal Appeal (NSW), 24 July 1998, unrep); Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 at [12] (Bell P, as his Honour then was); Shaw v R [2024] NSWCCA 241 at [56] (Yehia J, Davies and N Adams JJ agreeing). The profoundly detrimental effect upon a child of sexual abuse is well recognised by this Court: R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469 at [110] (Leeming JA, Johnson and Hall JJ). The applicant was 13-14 years old at the time he was physically and sexually abused at Reiby.
8. A finding of sexual abuse is significant and not a matter that can readily be put aside in a sentencing exercise. I am satisfied that the additional material may have had a real bearing on the aggregate sentence imposed and had it been before the judge there would have been a material prospect of the applicant receiving a lesser sentence. 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. As the applicant is to be re-sentenced, the sexual abuse will be taken into account.
9. Accordingly, the additional evidence will be admitted. I grant leave to the applicant to add ground 4 to his appeal. I emphasise that without any criticism of the judge, ground 4 has been established.

Should the applicant be re-sentenced?

1. While the Crown accepts that lesser indicative sentences are warranted for both offences of driving whilst disqualified, the Crown argued that when regard is had to the totality of the criminal offending and the generous finding of special circumstances (reducing the non-parole period to 50% of the aggregate sentence) no lesser aggregate sentence than 8 years imprisonment with a non-parole period of 4 years is warranted.

A summary of the evidence before the judge on sentence

1. Other than the agreed facts, the Crown tendered the Form 1 documents, the applicant's criminal history, traffic record and a sentencing assessment report.
2. The applicant's criminal history is extensive with terms of imprisonment having been imposed for offences of dishonesty including aggravated break and entry to commit a serious indictable offence; break and enter a building; shoplifting and other offences including driving a conveyance without the owner's consent and for dangerous driving in a police pursuit.
3. At the time of the offending, as the judge said, he was subject to conditional liberty being an ICO and was also subject to parole.
4. The author of the sentencing assessment report recorded that the applicant had struggled with drug addiction issues from the age of fifteen, despite receiving treatment through the opiate treatment program. The applicant had reported the motivating factor for stealing high end items was to support his $600 a day heroin addiction combined with Zanax and methylamphetamines. The applicant was assessed at a Tier 2 Medium/High risk of reoffending.
5. The written material tendered on the applicant's behalf included the Allnutt report; Youssef Elali's affidavit sworn 16 November 2023 and a report prepared by Navin Goonniah, a psychologist. Mr Goonniah was of the opinion that the applicant's symptoms at the time of the offending met the criteria for Anti-Social Personality Disorder, Post-Traumatic Stress Disorder, Substance Abuse Disorder, Adult Attention Deficit Disorder and Oppositional Defiant Disorder and Borderline Personality Disorder. Mr Goonniah opined that the applicant was suffering from mental health impairments for which treatment was available in a mental health facility.
6. The applicant gave evidence before the judge. He confirmed that he had been using heroin since he was 21, and had been on methadone for the past six or seven years. He was also using methylamphetamine. He related that at the time he committed the offences in June and July 2021 he was using drugs.
7. The applicant said that prior to his offending in November and December 2021, he had been stabbed in the back by his partner and he became homeless, living in his car. He was using drugs. He stole to sell the stolen items for cash and drugs.
8. The applicant said he was sorry for the impact caused to the victims of his offending.
9. A letter from the applicant was also tendered in which he expressed his regret for the offences; his change of attitude and his confidence in the future with the support of his brothers and sisters who live in Victoria.

Some findings by the judge

1. The judge's findings on the objective seriousness of the offences were not challenged by the applicant or the Crown. The judge observed that the value of the jewellery stolen from the jewellery stores was not insignificant but were "not the most spectacular amounts". [14] His Honour noted that the applicant seemed to be a leader in relation to the conduct of others. [15]
2. As to the police pursuit on 29 December 2021, his Honour observed that the applicant was a disqualified driver and was driving the stolen Mercedes. His distance of pursuit was about 5.4 kms. His Honour noted the aggravating features of brake checking, unheralded turns, swerving, the extent to which he was above the speed limit, as well as his conduct towards the following cars and noted that this was in a suburban street or series of streets with the real possibility of other cars and other people coming upon them. [16]
3. As to the offence of entering the building with intent to commit an indictable offence, his Honour said that it was not surprising that the two elderly victims at the premises on Victoria Road disclosed to the police that they were fearful for their safety due to what had occurred and the manner in which it had occurred and from the offender asking them to "hide him inside the house". [17]
4. Other findings that the judge made that were not challenged include: 1. the applicant was entitled to a 25% discount on sentence for the pleas of guilty entered in the Local Court; 2. the applicant's antecedent criminal history should be characterised as a continuing attitude of disobedience of the law. This had relevance to the need for retribution, deterrence and protection of society; 3. the letter of apology intended to convey remorse as well as optimism about the applicant's future; 4. the applicant's prospects of rehabilitation continued to be guarded as well as his likelihood of reoffending; 5. the commission of the offences whilst subject to conditional liberty did not enhance the objective seriousness of the offences but did serve as an aggravating feature on penalty; 6. where Form 1 offences were attached, they may require the sentence imposed to which they attach to reflect a greater need for denunciation and personal deterrence; 7. the applicant had a striking record of prison misconduct; 8. His Honour did not accept that the applicant had a $600 a day heroin habit but did not reject that he was abusing drugs intermittently at the relevant time; and 9. His Honour found special circumstances being the applicant's need for assistance for his drug problems and for psychological counselling because of his exposure to violence and his being on the verge of being institutionalised.

Material tendered on re-sentence

1. The applicant tendered on re-sentence an affidavit of Ms Howard affirmed on 14 November 2024, which annexed emails from his brother, Isaac Elali, and sister, Hanna Elali.
2. In his email, Isaac refers to the applicant's sexual abuse at Reiby and highlights the impact this trauma had upon his brother. He refers to the applicant's significant remorse and genuine desire to change. He confirms his commitment to help his brother reintegrate into society.
3. In her email, Hanna refers to the applicant's genuine remorse and that the burden of incarceration has weighed heavily upon him, cutting him off from his daughter and family members. Hanna asks this Court to see her brother's potential for rehabilitation and transformation.
4. The Crown tendered on re-sentence an affidavit of Ms Gadsby, a solicitor in the Office of the Director of Public Prosecutions. The affidavit annexes the applicant's custodial history and copies of misconduct reports for correctional offences on 10 March 2024, 4 August 2024 and 5 August 2024.

Re-sentence

1. The applicant is now 39 years of age. He was born in November 1985 and was aged 35 to 36 years old at the time of the offences.
2. The findings made by the judge [149]-[152] are well founded and I will adopt them in re-sentencing the applicant.
3. I should also mention that the offences of break and enter are serious offences. The property the applicant stole from the residence at St Clair on 25 November 2021 amounted to a value of about $12,650 and has not been recovered. On 27 December 2021, after gaining entry to the Cars 24 site, the applicant stole a Mercedes GLA 250.
4. The material contained in the affidavits tendered on re-sentence does not persuade me to take a more positive view on the applicant's prospects of rehabilitation. The progress that the applicant has made in custody as a hard working sweeper is diminished by the correctional centre offences in March and August 2024. An assessment of the applicant's prospects of rehabilitation and the likelihood of re-offending remains uncertain and is dependent upon his ability to overcome his prohibited drug use upon release.
5. I am satisfied on the balance of probabilities that the applicant was both physically and sexually assaulted at Reiby. I accept Dr Allnutt's opinion that this abuse aggravated his antisocial personality disorder and substance abuse disorder and contributed to his post traumatic and depressive symptoms. In my view, there is a causal link between the applicant's mental conditions and his offending. The applicant's moral culpability is reduced and I give less weight to general deterrence, retribution and denunciation: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. I am not satisfied that the need for specific deterrence is eliminated, having regard to the applicant's history of offending, the commission of the offences whilst subject to conditional liberty and his guarded prospects of rehabilitation and re-offending.
6. In assessing the indicative sentences, I have fixed an appropriate sentence for each offence. Critical to the sentence is the principle of totality which requires that the aggregate sentence must be "just and appropriate": Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26.
7. The following table discloses the sentences that would have been imposed but for the aggregate sentence after the 25% discount has been applied: s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSP Act"): Charge and Sequence Number Principal offence and section Indicative sentence after 25% discount (round figures) H85768234/1 Enter building with intent to commit indictable offence of larceny 1 year 8 months imprisonment (taking into account Form 1A) s 114(1)(d) Crimes Act H85199222/1 Police pursuit (second or subsequent) 2 years 4 months imprisonment s 51B(1) Crimes Act H85199222/4 Assault officer while in the execution of his or her duty 2 years 4 months imprisonment (taking into account Form 1B) s 60(1) Crimes Act H85199222/5 Drive while disqualified (second or subsequent offence) 10 months imprisonment, with a 12 month licence disqualification s 54(1)(a) Road Transport Act H85199222/15 Use class A vehicle with unauthorised number plate affixed s 10A CSP Act reg 129(1) Road Transport (Vehicle Registration) Regulation H86031136/1 Break, enter and steal 3 years and 6 months imprisonment (taking into account Form 1C) s 112(1)(a) Crimes Act H85882920/1 Larceny 1 year 2 months imprisonment s 117 Crimes Act H317489798/1 Break, enter and steal 2 years 4 months imprisonment s 112(1)(a) Crimes Act H85166214/1 Larceny 1 year 2 months imprisonment s 117 Crimes Act H85166214/2 Drive while disqualified (second or subsequent offence) 10 months imprisonment and a 12 month licence disqualification s 54(1)(a) Road Transport Act H85707372/1 Escape police custody 12 months imprisonment Common law H85707372/4 Enter building with intent to commit indictable offence of escape police custody 3 years imprisonment s 114(1)(d) Crimes Act H91650838/1 Larceny 1 year 4 months imprisonment s 117 Crimes Act

1. I have reduced the aggregate head sentence and found special circumstances for the reasons expressed by the judge. The ratio between the head sentence and non-parole period of 50% has been maintained.

Orders

1. The orders I propose are: 1. Leave to appeal against 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) is granted. 2. Appeal against conviction dismissed. 3. Leave to appeal against sentence granted. 4. Appeal against sentence allowed. 5. Quash the aggregate sentence imposed in the District Court on 21 November 2023. 6. In lieu thereof, sentence the applicant to an aggregate term of imprisonment of 7 years and 6 months consisting of a non-parole period of 3 years and 9 months commencing on 20 March 2022 and expiring on 19 December 2025 with a balance of term of 3 years and 9 months commencing on 20 December 2025 and expiring on 19 September 2029. 7. The earliest date the applicant will be eligible to be released on parole is 19 December 2025.
2. IERACE J: I agree with Price AJA.
3. McNAUGHTON J: I agree with Price AJA.

Endnotes

1. Tcpt, 15 November 2024, p 5(50)-6(1).
2. Remarks on Sentence, p 40.
3. Crown's outline of written submissions (MFI B) at [50].
4. Tcpt, 17 November 2023, p 47(14).
5. Remarks on Sentence, p 40.
6. Remarks on Sentence, p 21.
7. Remarks on Sentence, p 35.
8. Remarks on Sentence, p 35.
9. Allnutt report, p 8.
10. Allnutt report, p 9.
11. Allnutt report, pp 9-10.
12. Remarks on Sentence, p 32.
13. Remarks on Sentence, p 35.
14. Remarks on Sentence, p 11.
15. Ibid.
16. Remarks on Sentence, p 15.
17. Remarks on Sentence, p 20. 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: 19 February 2025