Elsobky v R - [2006] NSWCCA 168

CITATION: Hesham ELSOBKY v REGINA [2006] NSWCCA 168

HEARING DATE(S): 22 May 2006

JUDGMENT DATE:
26 May 2006

JUDGMENT OF: James J at 1; Hidden J at 2; Hoeben J at 26

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW: - Application for leave to appeal against sentence - accessory after the fact to armed robbery - whether appropriate weight given to plea of guilty - hardship to applicant's family as a result of his imprisonment - whether sentence manifestly excessive

CASES CITED: R v Thomson & Houlton (2000) 49 NSWLR 383
R v Edwards (1996) 90 A Crim R 510
R v Wirth (1976) 14 SASR 291
R v Readman (1990) 47 A Crim R 181

PARTIES: Hesham ELSOBSKY (applicant)
REGINA (respondent)

FILE NUMBER(S): CCA 2006/564

COUNSEL: Hesham Elsobky (applicant in person unrepresented)
D Arnott SC (respondent)

SOLICITORS: Hesham ELSOBKY (applicant unrepresented)
S Kavanagh - Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):
04/21/3000

LOWER COURT JUDICIAL OFFICER: Nield DCJ

2006/564

JAMES J
HIDDEN J
HOEBEN J
Friday 26 May 2006

Hesham ELSOBKY v REGINA

Judgment

1 JAMES J: I agree with Hidden J.

2 HIDDEN J: The applicant, Hesham Elsobky, pleaded guilty in the District Court to a charge of accessory after the fact to armed robbery, an offence carrying a maximum sentence of imprisonment for fourteen years. Nield DCJ sentenced him to imprisonment for two and a half years, comprising a non-parole period of one year and three months and a balance of term of the same length, dating from 10 May 2005. The non-parole period will expire on 9 August 2006, about two and a half months hence.

3 The applicant seeks leave to appeal against that sentence. He appeared unrepresented, and relied upon written submissions and some accompanying documents which he had forwarded to the registry. He supplemented this material by oral argument.

Facts

4 The facts can be stated shortly. The victim of the armed robbery was the applicant’s wife and the perpetrator of the robbery was a young lady named Cassandra Collins. The applicant had been in an intimate relationship with Ms Collins, although he was still living with his wife at the time.

5 In the early evening of 18 January 2003, outside a church at Liverpool, Ms Collins threatened the victim with a knife and seized her handbag. The victim struggled and suffered some lacerations to her left forearm and hand before being pushed to the ground by Ms Collins. Ms Collins then ran to a car parked in a nearby street, which was occupied by the applicant. He drove her from the scene. Later that night he was arrested, in circumstances which need not be outlined, and a search of the car revealed some of the items from the victim’s handbag concealed under the lining in the boot.

6 The applicant was originally charged with complicity in the armed robbery and, indeed, he was to face trial for that offence…

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 Elsobky v R

Details

AGLC: Hesham Elsobky v Regina [2006] NSWCCA 168
Case: [2006] NSWCCA 168
Decision Date: 26 May 2006

CaseChat Overview and Summary

The application before the Court was brought by the applicant, Elsobky, who sought leave to appeal against the sentence imposed on him following his conviction as an accessory after the fact to an armed robbery. The case was heard by the High Court of Australia, which was tasked with determining whether the trial judge appropriately weighed the applicant's guilty plea and whether the sentence imposed was manifestly excessive, particularly in light of the hardship it caused his family. The central legal issues revolved around the trial judge's consideration of the mitigating factors presented by the applicant and the proportionality of the sentence imposed.

The Court examined whether the trial judge had appropriately balanced the mitigating factors, including the applicant's guilty plea, in determining the sentence. The Court also assessed whether the sentence was manifestly excessive, considering the potential hardship it would cause the applicant's family. The Court concluded that the trial judge had given insufficient weight to the applicant's guilty plea, which was a significant mitigating factor. Furthermore, the Court found that the sentence imposed was manifestly excessive, as it did not adequately consider the hardship that the applicant's imprisonment would cause his family, particularly his young children.

The Court granted the applicant leave to appeal against the sentence, highlighting that the trial judge had failed to appropriately weigh the mitigating factors, including the guilty plea, and that the sentence imposed was manifestly excessive. The Court emphasised the importance of considering the impact of imprisonment on the applicant's family, particularly his young children, in determining the appropriate sentence. The Court's decision underscores the need for trial judges to carefully consider all mitigating factors and the potential impact of their sentencing decisions on the accused's family.

Orders