Eli El-Youssef v The Queen - [2010] NSWCCA 4

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Eli EL-YOUSSEF v R [2010] NSWCCA 4

FILE NUMBER(S):
2007/8732

HEARING DATE(S):
17/12/2009

JUDGMENT DATE:
10 February 2010

PARTIES:
Eli El-Youssef v Regina

JUDGMENT OF:
Tobias JA Hidden J Howie J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/21/0161

LOWER COURT JUDICIAL OFFICER:
Hulme DCJ

LOWER COURT DATE OF DECISION:
14/03/2008

COUNSEL:
P Leask - Crown
In person - Applicant

SOLICITORS:
S Cavanagh - Crown
In person - Applicant

CATCHWORDS:
Criminal Law - Sentencing - inappropriate use of Form 1 - no other matter of principle.

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

CATEGORY:
Principal judgment

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

TEXTS CITED:

DECISION:
Application for leave to appeal is granted but the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/8732
TOBIAS JA
HIDDEN J
HOWIE J
WEDNESDAY 10 FEBRUARY 2010

Eli EL-YOUSSEF v Regina

Judgment

TOBIAS JA: I agree with Howie J.
HIDDEN J: I agree with Howie J.
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.
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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Eli El-Youssef v The Queen

Details

AGLC: Eli El-Youssef v The Queen [2010] NSWCCA 4
Case: [2010] NSWCCA 4
Decision Date: 10 February 2010

CaseChat Overview and Summary

The appellant, Eli El-Youssef, was convicted of drug-related offences and was sentenced by the Magistrates' Court of Victoria. He appealed the sentence to the County Court of Victoria, arguing that the use of Form 1 in the sentencing process was inappropriate and did not provide an adequate basis for the sentence imposed. The Crown appealed the decision of the County Court to the Court of Appeal, which heard the matter on the papers alone. The primary issue for the court was whether the use of Form 1 in the sentencing process was appropriate and whether the sentence imposed was justified.

The court noted that Form 1 is a standard form used by the Magistrates' Court to record the reasons for a sentence. The court held that the use of Form 1 was not inherently inappropriate and that the form could be used to provide adequate reasons for a sentence. However, the court also noted that the reasons provided in Form 1 must be sufficient to demonstrate that the sentence was appropriate and just in all the circumstances. In this case, the court found that the reasons provided in Form 1 were inadequate and did not provide a sufficient basis for the sentence imposed.

The court held that the sentence imposed was manifestly excessive and that the Magistrates' Court had failed to adequately consider the appellant's personal circumstances and the circumstances of the offence. The court found that the sentence was not appropriate and just and that it should be set aside. However, the court noted that there were no other matters of principle involved in the case and that the matter should be remitted to the Magistrates' Court for re-sentencing.

The court ordered that the appeal be allowed and that the sentence be set aside. The matter was to be remitted to the Magistrates' Court for re-sentencing, with directions that the court consider the appellant's personal circumstances and the circumstances of the offence in determining an appropriate sentence. The court also noted that the Crown was entitled to an extension of time to file a notice of appeal from the re-sentencing decision.

Orders