Hesham ELSOBKY v REGINA

Court of Criminal Appeal (NSW)|2006-05-22|Before: James J, Hidden J, Hoeben J

The application 13 Much of the material which the applicant had produced in writing, and which he addressed orally, related to developments since he had been sentenced. Some of it dealt with difficulties he was experiencing in prison, but most of it was devoted to the present position of his family. Strictly, of course, this material could be received only if the Court decided that it should intervene and re-sentence him. That said, the information he supplied about his family was much as one might expect following his incarceration and did not disclose anything significantly different from the evidence which was before his Honour. 14 The thrust of his application was that inadequate recognition had been given to his plea of guilty and to the hardship his family would suffer from his being imprisoned, and that the sentence is manifestly excessive. I shall deal with each of those matters in turn.

Plea of guilty 15 According to the applicant, his barrister in the sentence proceedings gave him to understand that agreement had been reached with the Director of Public Prosecutions that he would not be imprisoned if he pleaded guilty. He adduced no evidence to that effect, and the proposition is inherently improbable. If he does believe that to have been the position, it may be the result of some misapprehension of the advice which his counsel had tendered to him. He did not seek to go behind his plea of guilty. 16 He said that, in any event, he should have been afforded a twenty-five percent discount of sentence for his plea. That figure is at the top of the range of discount for a plea of guilty propounded in R v Thomson & Houlton (2000) 49 NSWLR 383. It is well settled that the discount to be allowed for a plea of guilty is very much in the discretion of the sentencing judge in each case, and depends upon the nature of the case and the timing of the plea. Here, the plea was entered at a very late stage of the proceedings. To recognise it by a discount of fifteen percent was well within the proper exercise of his Honour's discretion.

Hardship to family 17 The primary thrust of the applicant's argument was that his Honour gave inadequate weight to the hardship his family would suffer from his imprisonment. The effect of the evidence, he asserted, was that they could not cope without him. 18 The credibility of his wife's evidence about that matter in the sentence proceedings was challenged but, as I have said, his Honour accepted that to imprison the applicant would cause the family great suffering. However, his Honour went on to observe that the effect of his imprisonment upon the family was not "unusual or exceptional", and that, unfortunately, "a wife and children suffer greatly when a husband and father is sentenced to a period of imprisonment for having committed an offence." 19 Those observations are consistent with well-settled authority about the relevance to sentence of the hardship the imprisonment of a person might cause to others. It is sufficient to refer to R v Edwards (1996) 90 A Crim R 510, per Gleeson CJ at 515 - 7. The Chief Justice said (at 515): Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment. 20 The Chief Justice referred (at 516) to a passage from the judgment of Wells J in R v Wirth (1976) 14 SASR 291 at 295 - 6: Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court… It seems to me that courts would often do less than their clear duty - especially where the element of retribution, deterrence, or protection of society is the predominant consideration - if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners. 21 It is for those reasons that it is only in exceptional cases that a sentence will be reduced because of the effect upon others of an offender's imprisonment. In the present case, his Honour did make an allowance for the predicament of the family by a significant reduction of the non-parole period which would have otherwise have been produced by the application of the statutory proportion. The usual proportion (seventy-five percent) of a sentence of two and a half years would have been a non-parole period of one year, ten months and two weeks. That period was reduced by seven and a half months to one year and three months. There is no error in his Honour's approach.

Manifestly excessive? 22 Finally, the applicant argued that the sentence is excessive and that, for that reason alone, it should be reduced. That argument also must be rejected. 23 As I have said, the offence carries a maximum sentence of imprisonment for fourteen years. That the applicant would be prepared to be involved in any way in the robbery of his disabled wife is, to say the least, an unattractive feature of the case. Moreover, he was on a bond at the time and sentencing courts have always taken a very serious view of the commission of offences by persons subject to conditional liberty. In R v Readman (1990) 47 A Crim R 181, Maxwell J said (at 184): This Court has repeatedly stated that the commission of an offence by an offender who is in the community on conditional liberty, whether that be on bail, on a recognisance, or on parole, will be considered as a matter that aggravates the offence. 24 In all the circumstances, it was clearly open to his Honour to impose a full-time custodial sentence and the length of the sentence was, again, well within the proper exercise of his Honour's discretion. 25 I would grant leave to appeal but dismiss the appeal. 26 HOEBEN J: I agree with Hidden J.

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.

CITATION: Hesham ELSOBKY v REGINA [2006] NSWCCA 168

At a glance

Court

Decision date

Before

Source

Judgment (5 paragraphs)

Parties

Cases Cited (3)

Cited By (5)