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 205(4) Road Transport Act 2013 when dealing with the calculation of disqualification periods for multiple offences and there is no error in those orders. Section 20(2) Crimes (Appeal and Review) Act 2001 provides me with the power to vary this or any component of the sentence imposed, if I think that it is too severe.

Sentencing Assessment Report

7. I have had regard to the Sentencing Assessment Report dated 13 January 2021 which was ordered by the Magistrate.

8. The appellant told the author of the SAR that he is in continuing stable employment and has strong family support.

9. The appellant was assessed as suitable for supervision and to undertake community service.

10. The appellant was advised by his legal representative not to discuss the circumstances of the offences, presumably to protect his position on the conviction appeal. The appellant has not given evidence in the severity appeal proceedings. He has not expressed remorse or accepted responsibility for his actions. He told the author of the SAR that he was willing to engage with interventions.

Objective Seriousness of the Offences

11. Each of the offences was objectively serious.

12. On 4 January 2020 the appellant drove the S63 coupe at speeds between 110 and 155km/hour. The video of the offence depicted the appellant rapidly accelerating the S63 coupe while overtaking another vehicle on the left-hand side in a breakdown bay. The relevant speed limit was 80km/hour because there were roadworks in progress. The appellant’s manner of driving posed a risk of death or injury to a number of other road users and Mr Pavlovic.

13. On 5 January 2020 the appellant drove the S63 coupe on the M5 Motorway when it was closed to the public because of a bushfire. The appellant overtook vehicles on the left-hand side while travelling in the breakdown lane and disobeyed clear signage to gain access to the Motorway. The appellant drove the S63 coupe at speeds between 124 and 189km/hour. There were no other vehicles on the Motorway at the time of the offence. The appellant’s manner of driving posed a risk of death or injury to Mr Pavlovic.

14. On 11 March 2020 the appellant drove the Audi SQ5 at speeds of between 94 and 154km/hour in the first video and 115 and 208km/hour in the third video. The latter driving took place on the M5 Motorway. The appellant’s manner of driving posed a risk of death or injury to a number of other road users and Mr Pavlovic.

15. On 18 March 2020 the appellant drove the C63 sedan at speeds of between 170 and 211km/hour while changing lanes a number of times to pass other vehicles. The appellant’s manner of driving posed a risk of death or injury to a large number of other road users and Jamal Elskaf.

16. For each offence, the extent of the evidence established that the appellant drove in a manner dangerous or at a speed dangerous for a few minutes.

17. The appellant deliberately drove at a speed and in a manner dangerous to the public for the purpose of filming and publishing his actions on social media. I am satisfied beyond reasonable doubt that he intended to create notoriety for himself, to encourage others to copy his actions and to publicly express his contempt for the authority of the police.

18. There is no reasonable excuse for the appellant’s actions and the moral culpability of the appellant for the offences is high.

19. I have taken into account the maximum penalty for each offence.

Deterrence

20. General deterrence is of significance in sentencing for dangerous driving offences because of the risks posed to other road users, passengers and bystanders by the irresponsible use of motor vehicles.

21. The appellant has sought notoriety through the publication of evidence of the offences on social media. His prosecution has in turn attracted media attention. Those factors in combination make this an appropriate case to impose penalties that make a strong statement to like minded people, including the appellant’s social media followers, that deliberate and wanton offending will attract substantial and appropriate punishment.

22. There is also a need for specific deterrence. The appellant has not taken responsibility for his actions or expressed any remorse. The appellant’s actions demonstrate a disregard for the law and the authority of the police to enforce the law. The evidence demonstrates that the appellant actively hinders the police in their interactions with him, that he forcefully expresses legal rights as a driver that the law does not provide for and that his actions require the police to respond with an inordinate amount of resources.

Aggravating Factors

23. The offences were committed without regard for public safety: s 21A(2)(i) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

24. The appellant does not have a significant record of prior convictions. He has some traffic history of matters involving speed, but no prior convictions for major traffic offences.

Penalty

25. The appellant conceded that the s 5 threshold was crossed in the Local Court. In my view, that concession was properly made.

26. This is an appropriate case to impose an aggregate term of imprisonment pursuant to s 54 Crimes (Sentencing Procedure) Act 1999. The sentences that I would have imposed if separate sentences were to be imposed are:

1. 4 January 2020 – 4 months;

2. 5 January 2020 – 5 months;

3. 11 March 2020 – 6 months;

4. 18 March 2020 – 7 months.

27. I impose an aggregate term of imprisonment of 15 months.

28. I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that it is appropriate to order that the sentence be served by way of an Intensive Corrections Order (ICO), for the following reasons.

29. Whilst this offending is serious and warrants a term of imprisonment, community safety can be achieved through the imposition of an appropriate period of disqualification. Further, the appellant has agreed to undertake interventions and to perform community service work that will ensure that he is adequately punished and that there is some element of retribution.

30. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (31 January 2023) and expire on 30 April 2024.

31. The appellant must report to the Liverpool Community Corrections Office on or before 4pm on 7 February 2023.

32. The standard conditions of the order apply:

1. the appellant must not commit any offence; and

2. the appellant must submit to supervision by a Community Corrections Officer.

33. The following additional conditions apply:

1. the appellant is to perform 150 hours of community service work.

34. If the appellant fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or a revocation of this order. If the order is revoked, the appellant may be required to serve all or some of the period of the sentence in full-time custody.

35. The appellant must attend the Registry where a copy of the order will be explained and given to him.

36. I see no reason to interfere with the disqualification imposed by the Magistrate. I am satisfied that it was proportionate and appropriate in all the circumstances. The appellant’s licence has been suspended for some time between the date he was charged and when the matters came to Court. He should be given credit for those periods. The Roads and Maritime Service is in the best position to calculate the commencement and expiry date of the disqualification. The matter can be relisted before me if those matters cannot be resolved by agreement.

Orders

37. The orders I make are as follows:

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.

**********

Decision last updated: 01 February 2023