R v El-Hage

the application for leave to appeal 19 The application for leave to appeal is based upon the manner in which the sentences were imposed and structured. The sentencing judge, as I have mentioned, expressly found special circumstances in relation to the first count, such as to warrant departure from the ratio specified in s 44 of the Crimes (Sentencing Procedure) Act. However, I do not read this as necessarily implying that there was warrant for an enlargement of the overall non-parole period. In fact, the non-parole period that was fixed was very significantly less than that mentioned in s 44. The portion of the sentence to be served by way of custody, on in this occasion in periodic detention, was something like eighty or eighty three per cent of the overall sentence. 20 The Crown has conceded that there was an irregularity in sentencing but has argued that having regard to the number of crimes and their seriousness, any sentence less than that imposed would have been manifestly inadequate. I am of the view that this submission should be accepted. I am further of the view that although there may have been an irregularity it is difficult to be precise about what the sentencing judge intended by her finding of special circumstances. There is nothing in the remarks on sentence which I would take to indicate that her Honour intended that the overall non-parole period be less than seventy five per cent of the total sentence. 21 Another argument that was put before this Court was that given the potential for the sentence to be converted to one of full time custody and given the applicant's assistance to authorities, it would be necessary, if he was sentenced to full time custody, that he serve that sentence in protective custody. This is not a matter that demonstrates error on the part of the sentencing judge. Whatever has happened subsequent to sentence cannot in the ordinary course be taken into account in determining an application such as this. 22 I am not satisfied that error has been demonstrated. I would therefore grant leave to appeal but dismiss the appeal. 23 HULME J: I agree with the orders proposed by her Honour and with her Honour's reasons, accordingly the order of the Court will be as proposed. 24 There is one further matter I should say. The Court directs that the contents of the envelope which were perused by the Court should be again placed in a sealed envelope, not to be opened except by order of a judge. 25 Mr Crown over the next quarter hour or so I will have that done and the envelope given back to you.