Eli EL-YOUSSEF v R

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

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

COUNSEL: P Leask - Crown In person - Applicant

SOLICITORS: S Cavanagh - Crown In person - Applicant

IN THE COURT OF CRIMINAL APPEAL 2007/8732

TOBIAS JA HIDDEN J HOWIE J

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

1. The discount given for the pleas of guilty was inadequate.

4. The failure of the sentencing judge to take into account "that corrective services had a duty of care to rehabilitate me after 8½ years in 'E maximum' but did not and released from maximum security with $420, into the community".

6. The sentencing judge "was blinded by my past sentence and simply took that as a guideline for sentence".

8. The sentencing judge imposed "an over bearing and crushing sentence". 17 The applicant had little in his subjective circumstances that could assist him. He was born on 16 October 1966 and hence was 41 years at the date of sentence. He has a criminal record dating from 1985 for dishonesty and drug offences. He was first sentenced to imprisonment in 1995. In 1998 he was sentenced in the District Court for 5 offences of robbery in company to a minimum term of 7 years with an additional term of 3 years. The minimum term expired on 15 May 2005. The applicant unsuccessfully sought leave to appeal against these sentences: see [2000] NSWCCA 481. He later received a sentence for escape with a non-parole period to expire on 8 July 2006. The applicant was on parole from these sentences when he committed the offences for which Hulme DCJ sentenced him. His parole was revoked on 16 November 2006 and he was to serve a balance of parole to expire on 9 July 2008. 18 The applicant gave evidence on sentence. He expressed remorse for the offences and their effect on the victims. He gave the following history:

My upbringing from a Catholic upbringing, my father was very strict, ex-military man. My mother suffered a stroke when I was four years old and by the age of ten being the youngest child in the family - palliative was the utmost thing was to look after my mum. I didn't have a normal upbringing due to the fact that wherever my dad took my mum overseas to see doctors overseas to try and help her with her condition I was there with them all the time. So I attended numerous schools overseas as well as here and that was in the ten year period your Honour that I had to not only endure seeing my mum but not hearing her was another strange - you know strange part of my upbringing because my sister started to bring me up instead of my mum because she was so sick. But our main concern was my mother and to look after her and I've have been doing it for the last 30 odd years and she passed away last year, I lost mum. I wasn't allowed to attend her funeral being in Lithgow Gaol at the time and I lost my father 20 odd years ago as well. 19 The applicant explained that his E classification in the prison system as a result of his escape offence restricted his ability to undergo rehabilitation while serving his sentence. He stated:

It's halted, or it did halt my further advancement to rehabilitation because I put in so many submissions prior to my release and there was a criteria followed by the Department that you had to do certain courses to get works release. I did that and some, with two TAFE courses and when it came up for time to review because it was being five years since then, no reason was given for the fact that I couldn't be given works release. They had to review it and at one time an officer said it sat in the pigeonhole for three months, no one looked at it. I couldn't receive works release and every time I asked they said well it's too late now, so it kept on going, they kept telling me to do this, do this course, do that course, and we will give it to you but in the end I just got laughed at. 20 The applicant was asked to explain the absence of works release upon his rehabilitation and he stated:

Your Honour I would say this honestly, if I had the chance for works release because I was working at the time of the gaol I don't think I would have done what I done, I know it might sound the wrong thing to say but I had the opportunity, I asked for the opportunity, it wasn't by chance. I did everything right, I complied, I haven't had a gaol charge in eight years, not a blemish. On works release I would have saved money because they do hold your money while you work and they pay your rent and I assume that I wouldn't have ended up in the predicament that I did if I had been given works release, so I was denied that as well. I am not laying blame on the Department but I would say that they had a hand in you know my rehabilitation but they didn't extend that hand. 21 The applicant also complained about his treatment by the Parole Board. He stated that instead of being assisted to find work he was sent for rehabilitation for his back injury, something that should have been done while he was in custody. He had work lined up on his release but the Parole Board told him to seek rehabilitation for his back injury. He also complained that he was not allocated a permanent parole officer. 22 The sentencing Judge stated that he was "not very impressed" with the applicant's evidence and formed the impression that the applicant was not sincere. He found his professed remorse "was far from heartfelt". He also felt that the applicant "was prepared to make any excuse rather than to acknowledge his own shortcomings and accept responsibility". 23 On the hearing of the application before this Court the applicant tendered a certificate indicating that he had chronic hepatitis C. He also tendered a letter written by him to the Court in which he sought to appeal to the Court's "altruistic side and compassion" in reviewing his history. In it he stated:

Prior to my incarceration, I held the position of Civil Engineer, for State Rail Authority for a period of 10 years - during which I was responsible for oversight of 20 members under my direct report. During this time, I was able to demonstrate good leadership skills, ethical standards and exercised the protocol and procedures of the department for which I worked through my daily work.

In the community, I was an active participant in Bankstown Community Centre, assisting with the elderly and disabled people, only because my poor mother was a paraplegic and a mute for over 40 years. My mother was my priority after my father passed away, and now my mother has past two years ago now. I supported her for most of my life. I drove members around in the community bus, as rostered, to the local community centres, RSL's etc, to ensure they participated actively and often.

During the course of my incarceration, I have been entrusted to hold positions such as clerical support, sweeper, and have attended all programs required of me.

The purpose of my letter is appealing the sentence on severity. Your Honour, I feel that at this point in my life and my age, I would like to be given an opportunity simply because I have always spent my incarceration in maximum security and not given the chance to progress my classification status by the Department.

As it stands now that I have enquired about my rehabilitation and to progress to a minimum security gaol is ideal at the moment, such as "works release". Suffice to say that timing is crucial because I do not wish to walk out when I am 50 years of age and have had no chance of employment. The sentence is obviously crushing and overbearing in my opinion. If I have any chance in life it is in your hands to give me the opportunity to be successful in my future endeavours, as I had demonstrated previously. 24 The applicant also placed into evidence in this Court a statement from an alcohol and drug counsellor at the Long Bay Complex to the effect that the applicant has attended group and individual counselling. It contains the following:

My experience of [the applicant] in his first session was that of a man who was extremely disempowered through his own anger and resentments. He saw himself as a victim of the system and was generally very lost and unhappy. Throughout the counselling process [the applicant] has made significant changes to the point where he no longer sees himself as the victim and has taken big steps and moving forward and taking responsibility for himself. [The applicant] has demonstrated a serious effort to rehabilitate himself and address his behaviours. He has shown he is developing insights into his lifestyle and issues that contribute to his offences. This is evidenced in his consistent attendance and attitude towards the counselling process.

His throughcare plan upon release is also developing and he has indicated he is willing to attend programs and support that is available to him. [The applicant] has also stated he will continue counselling and attend a self help support group, Narcotics Anonymous. He has stated that these will play a big part in his efforts to remain drug-free and continue his recovery from drug addiction and criminal behaviours. 25 The applicant's first complaint is about the level of discount given to him for his plea of guilty. In his remarks his Honour stated:

The offender's pleas of guilty were entered on the day his matter was listed for trial. I was informed that serious discussions about the disposition of the matter commenced about two months before the trial date. Whilst I accept that the pleas came after the Crown had determined to take no further proceedings in respect of some charges for which the offender has been committed for trial, the fact remains that it was open to him to plead guilty to the subject offences at any time. The Crown was aware, however, before the actual day of trial that pleas were going to be entered. Weighing all of this I regard it as appropriate to recognise the utilitarian benefit of the pleas brought to the criminal justice system by discounting the sentences to be imposed by 12.5 per cent. It will be a little more in respect of counts 1 to 3 because there will be some slight rounding down in the offender's favour to produce a practical result. 26 There is no error of principle in this passage of the sentencing remarks and the discount was completely appropriate. The applicant's complaint is based upon the fact that his co-offender in some matters received a discount of 25 per cent. But there is no issue of parity in this regard and, in any event, the co-offender pleaded guilty in the Local Court and, therefore, qualified for a discount at the top of the range. 27 The second complaint is really based upon what the applicant considered to be unfair treatment by the prison authorities in failing to give him the opportunity for works release. There is no merit in this complaint nor did his imprisonment history have any significant bearing upon the appropriate sentence to be imposed upon him. The applicant had escaped from custody and, therefore, was subject to more stringent custodial arrangements. That was a matter completely within the discretion of the custodial authorities. In any event, as his Honour noted, the applicant is prepared to blame others for his predicament and does not accept responsibility for his own conduct. Yet he is old enough and intelligent enough to make his own decisions about his conduct in the community. It was clearly an aggravating factor that the applicant was on parole and there was no mitigation in his custodial history or the conditions imposed upon him by the Parole Board. 28 The third complaint is that the Judge sentenced the applicant because of his past record. He was entitled to take into account as an aggravating factor the applicant's prior criminal conduct in the sense that it indicated both general and specific deterrence were matters of substantial importance in determining the appropriate sentence to impose upon him consistent with the extent of his criminality revealed by the matters for which he was being sentenced. There is nothing in the sentencing remarks to suggest any error in the approach of the sentencing judge in exercising his discretion. 29 The final complaint is in effect that the sentence is manifestly excessive. It may seem to be a crushing one to the applicant but it was a sentence appropriate to his criminality in light of his record and his subjective matters that were of little significance having regard to his age and his breach of parole. As I have indicated, the applicant was fortunate to have a very serious matter placed upon a Form 1 in what appears to have been some plea bargain with the prosecution. That was an inappropriate course and as a result the applicant received a sentence that was less than his over-all criminality deserved. 30 Ultimately the applicant's plea to this Court was to have the sentence reduced to give him an earlier opportunity for works release and release to parole. To that end he sought to have the court leave the overall term of the sentence undisturbed but to reduce the overall non-parole period by 2 years. 31 In my opinion there is no basis for the Court intervening to achieve that result. This Court must find error by the Judge in the exercise of his discretion. I do not believe there was any. The applicant's sentence was made cumulative by 12 months on his balance of parole. This was a very fair result. In the end the applicant is serving a total period in custody of 12 years with a minimum period to be served of 9 year 3 months. That means that the minimum period is slightly over the statutory relationship set out in s 44 of the Crimes (Sentencing Procedure) Act 1999. But there was no warrant for a finding of special circumstances and there is no reason for this Court to reduce the non-parole period set by his Honour, and certainly a reduction of 2 years could not be justified. 32 In my opinion the Court should order that the application for leave is granted but the appeal dismissed. **********

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