Elahmad v R

1. [1]

   DAVIES J: I agree with R A Hulme AJ.

2. [2]

   YEHIA J: I agree with R A Hulme AJ.

3. [3]

   R A HULME AJ: This is an application for leave to appeal by Mr Ahmad Elahmad after having been sentenced by his Honour Judge Wilson SC in the District Court at Newcastle on 13 September 2023 to an aggregate term of imprisonment for 6 years with a non-parole period of 3 years.

4. [4]

   The sentence was imposed for nine offences of steal from the person, one of aggravated steal from the person, and one of dishonestly obtaining property by deception. These are offences contrary to ss 94(b), 95(1) and 192E(1)(a) of the Crimes Act 1900 (NSW) and the prescribed maximum penalties are imprisonment for 14 years, 20 years and 10 years. The last-mentioned offence was dealt with as a “related offence” under s 166 of the Criminal Procedure Act 1986 (NSW) and so the summary jurisdictional limit of 2 years applied.

5. [5]

   After a discount of 25% for the applicant’s early pleas of guilty, the sentencing judge indicated that if not imposing an aggregate sentence he would have imposed sentences of 18 months for each of the s 94(b) offences, 3 years for the s 95(1) offence and 6 months for the s 192E(1)(a) offence. There was obviously a substantial degree of nominal concurrency for these assessments to yield an aggregate term of 6 years’ imprisonment.

6. [6]

   There was another related offence before the District Court but it was one which was contrary to the Road Transport (Vehicle Registration) Regulation 2017 (NSW) for which only a fine could be imposed. His Honour did not impose any penalty and it is not the subject of the proceeding in this Court.

The ground of appeal

1. [7]

   The applicant seeks leave to appeal upon a single ground:

2. [8]

   It is correct that the applicant was on parole when he committed the offences. He was sentenced on 7 August 2019 to an aggregate term of imprisonment for 6 years with a non-parole period of 3 years dating from 10 July 2018. [1] He was released on parole on 9 July 2021 with the balance of the parole period due to expire on 9 July 2024. [2] The offences for which the applicant was sentenced by Wilson SC DCJ were committed between 14 April 2022 and 6 May 2022. [3]

3. [9]

   In his ex tempore remarks on sentence the judge said: [4]

4. [10]

   The reference to conditional liberty was made in the context of the judge listing features bearing upon his assessment of the objective seriousness of the s 94(b) offences but it may be assumed that the judge was mindful of it when considering the other offences because they were all committed during the period of conditional liberty. The Crown accepted this assumption. [5]

5. [11]

   Section 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that the aggravating factors to be taken into account in determining the appropriate sentence for an offence include that “the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence”. Parole is a form of conditional liberty.

6. [12]

   Some aggravating factors listed in s 21A(2) are relevant to the objective seriousness of an offence while others are only relevant in a more general sense. Taking into account in the assessment of objective seriousness a matter personal to the offender, such as that the offending occurred while he or she was subject to conditional liberty (e.g. Boney v R [2015] NSWCCA 291 at [18]-[20]) or had a criminal history (e.g. McCabe v R [2016] NSWCCA 7 at [15]-[23]) is erroneous in light of R v McNaughton (2006) 66 NSWLR 566: [2006] NSWCCA 242 at [24] per Spigelman CJ and at [81] per Barr and Bell JJ, and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].

7. [13]

   Error having been established, the Court is required to re-exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 to determine if “some other sentence, whether more or less severe is warranted in law and should have been passed”: Criminal Appeal Act 1912 (NSW), s 6(3).

The offending

1. [14]

   On 10 occasions between 14 April 2022 and 6 May 2022 the applicant stole a mobile phone, or in one instance an iPad, from a person he had lured to meet him on the pretext that he was a prospective purchaser of an item the victim had advertised on Gumtree. He asked to inspect the item and once he had it in his hands he quickly entered his car and drove away.

2. [15]

   The applicant attended each of the meetings in a car of which he was the registered owner. He altered the last character on the registration plate from a “P” to an “R” on four occasions (the Road Transport (Vehicle Registration) Regulation offence).

3. [16]

   Three of the steal from person offences involved an element of violence (offences on 14, 17 and 21 April 2022). However, on the basis that this is an element of an offence more serious than charged (s 95(1) as opposed to s 94(b)) the Crown conceded that the applicant’s violent and reckless act of driving the car with the victim holding onto it in one instance and punching at the victims in the other two are not something the Court should take into account on sentence. [6]

4. [17]

   The aggravated steal from person offence was the last in time and occurred on 6 May 2022. The circumstance of aggravation was that “immediately after the stealing the applicant recklessly inflicted actual bodily harm” upon the victim. [7] The meeting was in a McDonalds carpark in West Ryde. The phone was handed over in the vicinity of the open driver’s door of the applicant’s car. He then got back into the driver’s seat and started to drive off. The victim grabbed the door frame with both hands but she fell to the ground as the car sped up, landing on her face. She received scratches to her arms, there was bruising to her legs, her face was bleeding and swollen, her chin was bruised and she lost four teeth. She drove herself to Ryde Hospital where she received treatment.

5. [18]

   The offence of dishonestly obtaining property by deception offence occurred on 21 April 2022. The applicant drove into a service station at Granville, obtained $50 worth of fuel and drove off without paying.

The applicant’s personal circumstances

1. [19]

   The applicant’s subjective case was summarised in his written submissions as follows: [8]

2. [20]

   The description of the applicant’s criminal history at the beginning of that summary, particularly the offences which were the subject of his most recent sentence, is rather muted. What is described as “a range of dishonesty, larceny and robbery-type offences” was in fact 33 offences comprising single or multiple instances of armed robbery, robbery, steal from the person, larceny, larceny as a bailee, dishonestly obtain property or a financial advantage by deception, and dealing with identity information to commit an indictable offence. Two offences of assault occasioning actual bodily harm and one of dishonestly obtain financial advantage by deception listed on a Form 1 document were taken into account.

3. [21]

   Prior to that, on 21 March 2018 the applicant was sentenced to an aggregate term of 2 years with a non-parole period of 12 months for 13 offences comprising steal from the person (2), larceny (10) and dishonestly obtaining property by deception (1).

4. [22]

   The compulsory drug treatment program was undertaken by the applicant during his previous sentence from 26 November 2019 until 21 November 2020 when it was revoked by the Drug Court. [9] After imposing sentence, Wilson SC DCJ referred the applicant to the Drug Court for its consideration of a further referral to the CDT program. [10]

Evidence and submissions on resentencing

1. [23]

   An affidavit affirmed by the applicant was read. He is being held at the Goulburn Correctional Centre; he is classified C2 minimum security; and he aspires to achieve C3 and be allowed day and work release within the community.

2. [24]

   He was in the Compulsory Drug Treatment Centre at Parklea Correctional Centre in about December 2023 when he had an altercation with an inmate who said something about him being on protection. This resulted in staff revoking his attendance in the program and he returned to Goulburn in mid-January 2024. An appeal to the Drug Court against the revocation was rejected.

3. [25]

   The applicant has been engaged with work, learning new skills and counselling. He had received certificates for some of these activities. He is taking prescribed medication for anxiety and depression. He has had access to a psychologist twice.

4. [26]

   He claimed to have not been the subject of any disciplinary sanctions aside from the above altercation and a single instance of smoking a cigarette. An updated custodial history obtained by the Crown indicates that he has also been sanctioned for “unlawfully deliver/receive article” in December 2023 and “unlawfully use phone” in June 2024. The first matter involved him receiving from another inmate what he claimed was “two pills chief, I swallowed them”. The other matter concerned him using the gaol phone to make an unauthorised three-way phone call.

5. [27]

   The applicant says he has been feeling the benefit of being drug-free since his incarceration. He has been receiving buprenorphine since June 2023. Drug tests have all been negative.

6. [28]

   The applicant remains in contact and is supported by his parents. His former employer has confirmed that a position as a driver is available to him upon release, provided he is drug free and reliable.

7. [29]

   The applicant’s written submissions on resentencing were confined to a contention that “different sentences are warranted in law and that this Court’s discretion to re-sentence is enlivened”. [11] In oral submissions it was conceded that specific deterrence was “a real issue” and a “significant consideration”. The sentencing judge had failed to take that into account but as a countervailing consideration he had taken into account a risk of institutionalisation. [12] It was accepted that the adjustment made to the non-parole period by the primary judge on account of special circumstances was “generous”. [13]

8. [30]

   The Crown submitted that no lesser sentence than that imposed in the District Court is warranted having regard to the following:

9. [31]

   It was submitted at the hearing that the sentence imposed was a lenient one that this was prompted by it having been urged on the judge to impose a sentence that would leave the applicant within the eligibility criteria for again being referred to the Compulsory Drug Treatment Centre at Parklea. [14] For that to occur he would need to be sentenced to no more than 6 years’ imprisonment with a non-parole period of no less than 18 months: Drug Court Act 1998 (NSW), s 5A(1).

Determination of sentence

1. [32]

   The primary judge’s findings as to objective seriousness were challenged only in relation to the s 95(1) offence being “above mid-range”. In this Court, but not below, it was submitted to have been “lower [than “above mid-range”] given the brevity of the offending, the injuries as a comparable example of actual bodily harm and the impact of his Honour’s findings relating to the applicant’s background”. [15]

2. [33]

   The difficulty with that submission is that it conflicts which what was conceded in the District Court. In written submissions it was said that the stealing offences were all “in the mid-range of offending”. However, the submissions included: [16]

3. [34]

   These submissions were refined in oral submissions with counsel conceding, “I must accept that the 95 offence is probably above it [i.e. above mid-range]. That the injuries are serious in terms of actual bodily harm.” That was a reasonable concession to make given harm to the victim was significant in that it included a swollen and bleeding face, multiple bruises and abrasions as well as the loss of four teeth.

4. [35]

   Counsel for the applicant asserted at the hearing, and repeated in a supplementary note filed with leave of the Court, that he should be permitted to resile from the concession made in the District Court, citing cases in which it has been said that such a course is available if there are “exceptional circumstances” warranting the correction of a “miscarriage of justice” or a “serious injustice”: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81]-[82]; Kliendienst v R [2020] NSWCCA 98 at [65]; Rahman v R [2023] NSWCCA 148 at [6], [71]-[75], [95]-[96]. The circumstances in which there might be a miscarriage of justice or a serious injustice are referred to in these cases as where a factor clearly operating in mitigation of penalty has been overlooked by defence counsel, or where a concession has been made which “ought plainly not to have been made or accepted” or were “wrongly entered … based on misunderstandings of law or fact”.

5. [36]

   There is no miscarriage of justice or serious injustice where, as here, counsel appearing at sentence made a concession based upon an evaluative assessment that was reasonably open to be made: Adams v R [2018] NSWCCA 139 at [72]-[75]. In written submissions the s 95(1) offence had been said to be in the middle of the range but that was refined at the hearing. There would be no miscarriage of justice arising from this Court refusing to allow the applicant to run a new and different case (on this discrete issue) on resentencing: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [14].

6. [37]

   Having said that, the error that has led to a consideration of resentencing was one that bore upon the assessment of objective seriousness. While the applicant should be held to the concession made at first instance, it is necessary for the Court to make its own assessment.

7. [38]

   At the beginning of his remarks on sentence the judge described the number of charges and the nature of the offending as “quite serious”. He went on to describe the aggravated steal from person offence as “particularly serious”. There has been no criticism of that assessment and it is one with which I respectfully agree. Each of the stealing offences were the product of searching on the internet to identify a potential victim to deceive. The applicant had to negotiate a suitable meeting place and then consider where he should position his car to maximise his prospect of successfully escaping once the goods were handed over. The items stolen were of significant value. The nine steal from the person offences were conceded in the District Court to be in the middle of the range. [17]

8. [39]

   The injuries sustained by the victim of the s 95(1) offence were significantly more than the minimum required to make out the aggravating element of actual bodily harm. It was conceded below that “the injuries are serious in terms of actual bodily harm”. [18] It may be readily inferred that the victim would have been quite shaken by the entire experience.

9. [40]

   I consider that each of the s 94(b) offences were in the mid-range of objective seriousness and the s 95(1) offence slightly higher than that. The obtaining of property by deception offence is in the low range.

10. [41]

    The fact that the applicant was on conditional liberty is not relevant to the objective seriousness of the offences but it remains an aggravating factor that the Court is required by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act to take into account in the assessment of sentence.

11. [42]

    The applicant’s subjective case is much the same as it was before the sentencing judge. Nothing has emerged that would justify departure from the findings his Honour made and which have not been the subject of dispute. The applicant should retain the benefit of findings made in his favour (see above at [19]). These included acceptance that the applicant was remorseful and that his moral culpability was reduced in accordance with the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 on account of his background.

12. [43]

    The sentencing judge also said, “An offender’s moral culpability can be a feature of the objective seriousness of the conduct. I have had regard to my previous findings of moral culpability in making determination of objective seriousness”. [19] There was no explanation for this and it is not a finding I am prepared to adopt.

13. [44]

    In addition to promoting an offender’s rehabilitation, s 3A of the Crimes (Sentencing Procedure) Act lists as purposes of sentencing the provision of adequate punishment, personal and general deterrence, protecting the community, making the offender accountable and recognising the harm done. Each of these are important factors having regard to the applicant’s prolific offending history. Counsel for the applicant conceded the importance of specific deterrence which had been overlooked by the sentencing judge.

14. [45]

    The applicant acknowledged without demur the primary judge’s observation that sentencing statistics indicated that mid-range stealing from the person offences attract a sentence of about 18 months. [20]

15. [46]

    In applying the principle of totality, it is necessary for there to be an appropriate degree of notional accumulation of individual sentences to reflect the additional criminality in each offence: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]–[28]; Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64].

16. [47]

    The applicant had been in custody since his arrest on 7 May 2022 but as his parole had been revoked this custody was also referrable to serving the balance of a previous sentence. The judge informed counsel that his “usual approach to this is to allow about 50% of the time”. Counsel accepted this and did not wish to be heard. [21] A little later, his Honour referred to the applicant having been in custody for 16 months as at the date of the sentence hearing and asked, “So if I allow eight months?” Again, counsel accepted this. It was agreed the sentence should date from 13 January 2023. [22] The same assessment should apply.

17. [48]

    In my view the appropriate indicative sentences for each offence are the same or very similar to those assessed by the primary judge. In the application of the totality principle, I have arrived at an aggregate sentence which is not less than that which was imposed in the Court below. In accordance with practice that must result in the appeal being dismissed.

Orders

1. [49]

   I propose the following orders:

   1. (1)

      Leave to appeal against sentence granted.

   2. (2)

      Appeal dismissed.