Elskaf v The King

[2023] NSWDC 8

District Court

New South Wales

Medium Neutral Citation:

Elskaf v R [2023] NSWDC 8

Hearing dates:

31 January 2023

Date of orders:

31 January 2023

Decision date:

31 January 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1)    Appeal allowed.

(2)    I set aside the ICOs imposed by the Magistrate.

(3)    In lieu thereof I impose an aggregate term of imprisonment of 15 months to be served by way of an Intensive Corrections Order, commencing today. The standard conditions of the order apply. In addition, the appellant must perform 150 hours of community service.

(4)    I confirm the disqualification order made by the Magistrate.   

Catchwords:

CRIME — Appeal against severity

Legislation Cited:

Crimes (Appeal and Review) Act2001

Road Transport Act 2013

Cases Cited:

Elskaf v R [2022] NSWDC 525

Category:

Principal judgment

Parties:

Ali Elskaf (Appellant)
Rex (Crown)

Representation:

Counsel:
D Shridhar (Appellant)

Solicitors:
Abbas & Co (Appellant)
Office of the Director of Public Prosecutions (Crown)

File Number(s):

2020/87365
2020/119813

Publication restriction:

None

Judgment

Introduction

1. On 2 November 2022 I dismissed the appellant’s conviction appeal against the Magistrate’s finding of guilt for 4 counts of Drive in a Manner or Speed Dangerous to the Public contrary to s 117(2) Road Transport Act 2013: Elskaf v R [2022] NSWDC 525. I will adopt the defined terms that I used in that judgment and this judgment assumes familiarity with my earlier reasons.

2. On 4 April 2022, the Magistrate imposed the penalties set out in the following table.

Date	Term	Disqualification
4 January 2020	15 months imprisonment to be served by way of an Intensive Corrections Order (ICO) on the standard conditions with 150 hours Community Service Order (CSO)	3 years
5 January 2020	18 months ICO on the standard conditions with 200 hours CSO	3 years
11 March 2020	15 months ICO on the standard conditions with 150 hours CSO	3 years
18 March 2020	2 years ICO on the standard conditions with 300 hours CSO	3 years

3. Each of the ICOs were imposed to run concurrently from the sentence date (4 April 2022), as were the periods of disqualification. The cumulative amount of community service was 800 hours.

4. Each offence was charged as a first offence and accordingly the maximum penalty was 9 months imprisonment and or a fine of $2,200. Each term of imprisonment imposed by the Magistrate exceeded the maximum penalty for the offence. The prosecution conceded this error and agreed that the appeal against severity must be allowed and the appellant resentenced.

5. The Sentencing Assessment Report before the Magistrate provided that the appellant could be offered community service work at the rate of 14 hours per month. I note that it would not have been possible for the appellant to complete the 800 hours of Community Service within the 2 year period of the ICO imposed.

6. A conviction for each offence also carried with it an automatic period of disqualification of 3 years reducible to a minimum period of 12 months. The Magistrate correctly applied s…