R v El Masri
[2005] NSWCCA 167
•29 April 2005
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v Said El Masri [2005] NSWCCA 167
FILE NUMBER(S):
2005/221
HEARING DATE(S): 27 April 2005
JUDGMENT DATE: 29/04/2005
PARTIES:
Regina v Said El Masri
JUDGMENT OF: Hunt AJA Hulme J Johnson J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/21/0085
LOWER COURT JUDICIAL OFFICER: Acting Judge Shillington QC
COUNSEL:
Mr P Ingram (Respondent)
Mr R Button (Applicant)
SOLICITORS:
S C Kavanagh (Respondent)
S E O'Connor (Applicant)
CATCHWORDS:
SENTENCING - assault occasioning actual bodily harm under s.59(1) Crimes Act 1900 - applicant pleaded guilty to s.59(1) offence following acquittal on more serious related offence in District Court - community service order of 300 hours imposed - whether allowance made for fact that summary disposal in Local Court was both open and appropriate - use of sentencing statistics for s.59(1) offences in Local Court.
LEGISLATION CITED:
Crimes Act 1900
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
DECISION:
1. Leave to appeal is granted
2. Appeal is allowed and sentence by way of community service order for 300 hours imposed at the Parramatta District Court on 9 June 2004 is quashed
3. A community service order is made under s.8(1) Crimes (Sentencing Procedure) Act 1999 directing the Applicant to perform community service work for a period of 100 hours
4. The Applicant is to report to Bankstown Probation and Parole Office within seven days.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2005/221
Hunt AJA
Hulme J
Johnson J29 April 2005
REGINA v SAID EL MASRI
Judgment
HUNT AJA: I agree with Johnson J.
HULME J: I agree with Johnson J.
JOHNSON J: The Applicant, Said El Masri, seeks leave to appeal with respect to a sentence imposed upon him by Acting Judge Shillington QC at the Parramatta District Court on 9 June 2004 upon a count of assault occasioning actual bodily harm. The maximum penalty for such an offence is imprisonment for five years: s.59(1) Crimes Act 1900.
The Applicant pleaded guilty to this offence and was sentenced by way of a community service order directing the Applicant to perform community service work for 300 hours. The Applicant was ordered to attend Bankstown Probation and Parole Office within seven days for the purpose of implementing the order.
The Court has been informed that the Applicant has not performed work in consequence of the community service order, the relevant authorities having apparently taken the view that work should not be undertaken pursuant to the order because an application for leave to appeal against sentence had been filed in this Court.
History of Proceedings in District Court
On 7 June 2004, the Applicant appeared for trial at the Parramatta District Court in relation to an indictment containing two counts:
(a)assault with intent to rob in circumstances of aggravation, namely the use of corporal violence: s.95(1) Crimes Act 1900;
(b)assault occasioning actual bodily harm: s.59(1) Crimes Act 1900.
Both matters arose out of the same incident at Belmore on 24 November 2002, to which reference will be made shortly.
The Applicant pleaded not guilty to the first count, but guilty to the second count. However, the Crown declined to accept that plea and the trial proceeded before Acting Judge Shillington QC and a jury. On 9 June 2004, the jury acquitted the Applicant on the first count. Thereafter, the Applicant stood for sentence with respect to the second count.
Some 12 months earlier, on 10 June 2003, when appearing in the District Court, the Applicant had entered a plea of guilty to the count alleging assault occasioning actual bodily harm and the Crown had accepted that plea. However, as a consequence of a dispute over the contents of the agreed facts, that plea had subsequently been withdrawn before his Honour Judge Ellis on 23 October 2003 and a trial date was set.
Facts of Offence
As the present matter arose following a trial, the findings of fact of the learned sentencing Judge were based upon evidence adduced at the trial, rather than from a separate body of evidence tendered in the sentencing proceedings. His Honour’s findings concerning the objective circumstances of the offence were as follows (Remarks on Sentence, page 1.5):
“The circumstances of the offence arise from the presence of the victim at a toilet at Belmore. His account is quite different from that of the accused, the accused’s account being contained in a record of interview with him. The prisoner’s version is that he went to the toilet on two occasions, that he saw the complainant in a compromising situation, one which upset him, but having spoken to the complainant there was some agitation on his part and ultimately he struck him on the side of the head. There is no suggestion that the blow was one which caused any serious injury. In fact, the investigating police officer described it as relatively minor, she having seen him later that evening at the hospital.
I am disposed to deal with the matter on the basis of the account given by the prisoner in his interview, that is that he struck him once outside the toilet, having been, according to him, somewhat provoked by his conduct in the toilet and also by a somewhat aggressive attitude outside.”
Given that Acting Judge Shillington QC accepted the Applicant’s account as contained in his record of interview for the purpose of passing sentence, it is appropriate to refer to a number of factual features emerging from that interview.
At approximately 6.45 pm on 24 November 2002, the Applicant went for a drive around the Belmore area. He parked his car and went inside a public toilet in order to urinate. There he saw the victim standing near the urinal. Having used the lavatory, the Applicant went outside and went for a walk around the station to see who was around.
Approximately five to 10 minutes later, the Applicant returned to the toilets to wet his hair before driving off, and he saw the victim still standing there. The victim made a gesture to the Applicant that the latter interpreted as being a sexual act or advance. The Applicant asked him what he was doing and the victim replied that he was waiting for someone. The Applicant said that he thought that the victim was a homosexual and was making advances towards him. The Applicant said that he felt upset and stressed.
The Applicant began to remonstrate with the victim who walked past the Applicant and out towards the car park. The Applicant said that he was still remonstrating with the victim and followed him outside. The Applicant asked the victim whether he was waiting for another homosexual. The victim denied this.
The Applicant said that the victim was trying to get away and was being aggressive and swearing at him, so the Applicant punched him once on the left side of the head with a closed fist. The victim then ran away and flagged a passing motorist and drove off. The Applicant then drove home and was later arrested. The Applicant denied that he tried to rob the victim of his wallet and in so doing, had punched the victim several times.
For the purposes of sentence, the learned sentencing Judge made the following additional findings:
(a)that the Applicant had entered a plea of guilty to the charge of assault occasioning actual bodily harm at the earliest possible opportunity;
(b)that the offence was totally unplanned;
(c)that there had been considerable delay which caused some trauma to the Applicant, he having been charged on 24 November 2002, but having to wait until 9 June 2004 to have the more serious matter disposed of by a jury by way of acquittal, before being sentenced for the present matter.
The Crown submitted in the District Court that a finding should be made that the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged by reference to sexual inclination: s.21A(2)(h) Crimes (Sentencing Procedure) Act 1999. His Honour did not make such a finding.
The Applicant’s Subjective Circumstances
The Applicant was born on 22 November 1981. He was 21 years old at the time of the offence and 22 years old at the time of sentence. He is the eldest of six children.
According to a pre-sentence report which was tendered in the District Court proceedings, the Applicant left school at the age of 16 during Year 11. He stated that he left school due to excessive truancy. Since leaving school, the Applicant has held a number of short-term positions. At the time of sentencing before the District Court, he was unemployed and had apparently been so for some little time.
The Applicant has a criminal record. In August 2001, he was fined in the Bankstown Local Court for furnishing false or misleading information to a licensee and for goods in custody. In March 2003, he was fined and disqualified in the Sutherland Local Court for driving whilst his licence was suspended. He has no record for offences involving violence.
His Honour accepted that the Applicant had no problems with drugs or alcohol and had a supportive family.
Submissions before Court of Criminal Appeal
Counsel for the Applicant submitted that, in the unusual circumstances of this case, the sentence imposed upon the Applicant was manifestly excessive. A number of matters were relied upon in support of that argument in written submissions. Counsel for the Applicant acknowledged that the learned sentencing Judge had made findings favourable to the Applicant with respect to the objective circumstances of the offence and the subjective circumstances of the offender.
In the course of the hearing in this Court, the Applicant’s submissions were distilled into two propositions:
(a)that his Honour had failed to have regard, or sufficient regard, to the fact that the s.59(1) charge could, and ordinarily would, have been dealt with summarily in the Local Court;
(b)that it was “plainly apparent”, in the circumstances of the case, that the sentence was manifestly excessive: Dinsdale v The Queen (2000) 202 CLR 321 at 325.
It was submitted that the s. 59(1) charge ordinarily would have been disposed of in the Local Court. The matter would never have reached the District Court without the extra and more serious allegation in relation to which the Applicant was acquitted. Accordingly, the fact that the matter could have been disposed of in the Local Court was a powerful factor in the Applicant’s favour on sentence: R v Crombie [1999] NSWCCA 297 at paragraphs 14-16.
The Applicant contends that, in all the circumstances, the learned sentencing Judge erred in imposing a sentence of community service for 300 hours. It was submitted that the “best option” would have been the imposition of a bond with a condition, as recommended in the pre-sentence report, that the Applicant undertake anger management counselling. In the alternative, the Applicant submitted that a sentence of community service for no more than 80 hours should have been imposed.
With respect to the summary disposal argument, the Crown submits that Acting Judge Shillington QC was alive to this issue and that the Court would not conclude that this factor was overlooked on sentence by a most experienced District Court Judge: R v Majors (1991) 27 NSWLR 624 at 628. In any event, the Crown points out that the possibility of summary disposal before the Local Court does not operate as a universal factor for reduction of sentence when the matter is dealt with on indictment: R v Doan (2000) 50 NSWLR 115 at 124.
The Crown contends that the offence was of some objective seriousness. The punch to the side of the head of the victim was delivered simply because the Applicant lost his temper when the victim attempted to avoid the chiding of the Applicant in relation to unwanted behaviour in a public lavatory. The victim, although not suffering serious injury, was fearful enough to flag down a passing motorist to help him escape from the Applicant. The Crown submits that it would have been a frightening experience for the victim.
With respect to other matters advanced on behalf of the Applicant, the Crown submits that his Honour took those matters into account in passing sentence.
The Crown accepted that an order to perform 300 hours’ community service lay on the “upper rung” of sentence for this offence. Nevertheless, the Crown submitted that no error had been demonstrated which called for the intervention of this Court.
Consideration of Submissions
It is a well-established sentencing principle that a court dealing on indictment with a matter which was capable of summary disposal may have regard to that fact on sentence: R v Sandford (1994) 72 A Crim R 160 at 195; R v Griggs (1999) 109 A Crim R 484 at 485-6; Crombie, at paragraph 16; Doan, at 123ff (paragraph 35ff); R v LPY (2002) 135 A Crim R 237 at 240. But it is not a universal rule (Sandford, at 195) nor a factor which operates universally to reduce sentence (Doan, at 124). In some circumstances, the Court may conclude that the offender’s criminality was too serious to be dealt with in the Local Court and that the matter was properly before the District Court: R v Hanslow [2004] NSWCCA 163 at paragraph 21. The significance of the loss of a chance to be dealt with in the Local Court will vary from case to case: R v Depoma [2003] NSWCCA 382 at paragraph 13.
The maximum penalty for an offence under s.59(1) Crimes Act 1900 is imprisonment for five years. When disposed of summarily in the Local Court, the maximum sentence is imprisonment for two years or a fine of 50 penalty units or both: s.268(2)(a) Criminal Procedure Act 1986. These provisions prescribe the jurisdictional limit of the Local Court and not the maximum penalty for any offence triable within that jurisdiction: Doan at 123 (paragraph 35). Magistrates must not regard the jurisdictional limit as some form of maximum sentence reserved for a worst case: Re Attorney-General’s Application under s.37 Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) (2002) 137 A Crim R 196 at 204 (paragraph 27). A judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court: Crombie, at paragraph 16; LPY, at 240. Given that the maximum penalty for a s.59(1) offence exceeds imprisonment for one year, the maximum number of hours which may be ordered by way of community service is 500 hours, whether the matter is disposed of summarily or on indictment: clause 23(c) Crimes (Sentencing Procedure) Regulation 2000.
Section 8(1) Crimes (Sentencing Procedure) Act 1999 provides:
“8(1) Instead of imposing a sentence of imprisonment on an offender, a court may make a community service order directing the offender to perform community service work for a specified number of hours.”
The opening words of s.8(1) (which appear also at the commencement of s.9(1) relating to good behaviour bonds) do not confine the availability of community service orders to cases which otherwise would be visited by imposition of a sentence of imprisonment. A community service order is an important sentencing alternative available to the courts. There are statutory provisions confining the use of community service orders where an offender is not a suitable person for community service work or such work is not available: s.86 Crimes (Sentencing Procedure) Act 1999. A court may not, in relation to the same offence, make both a community service order and an order that provides for the offender to enter into a good behaviour bond: s.13 Crimes (Sentencing Procedure) Act 1999.
However, apart from these restrictions, the use of community service orders remains available as a non-custodial sentencing alternative. In an appropriate case, a community service order may be a suitable sentence for an offence under s.59(1) Crimes Act 1900.
In this case, his Honour was being asked to take into account that summary disposal of this matter in the Local Court would be likely to have exposed the Applicant to a lesser range of penalty, consistent with the penalty that would be imposed before that Court for an offence of assault occasioning actual bodily harm of this type.
Counsel for the Applicant in the District Court had advanced a specific submission that the appropriateness of summary disposal of the s.59(1) charge was relevant to sentence and ought to attract leniency. In the circumstances of this case, this was an understandable and strong submission.
In his short remarks on sentence, the learned sentencing Judge did not refer at all to this submission. It has been said that this Court should be slow to impute error to a judge, particularly an experienced judge, unless the error stands out plainly for all to see: R v Salameh (1991) 55 A Crim R 384 at 394; Majors, above, at 628. In the circumstances of this case, the summary disposal argument was a powerful submission in the Applicant’s favour. It was appropriate that his Honour state that the factor had been taken into account. The failure to refer to the factor at all indicates, in this case, that his Honour did not attach weight, or appropriate weight, to that factor on sentence. This conclusion is supported by the magnitude of the community service order actually made.
The Crown accepted that the sentence of 300 hours community service for this offence was on the “upper rung” of sentence. A sentence of 300 hours community service, with the ongoing and recurring obligation to perform work over an extended period of time, constitutes a significant penalty.
There are a number of features of the present case which point to the summary disposal argument operating strongly in the Applicant’s favour. This was an offence under s.59(1) involving a single punch to the side of the head of the victim. Although the occasioning of actual bodily harm was an element of the offence, it is clear that the bodily injury to the victim was relatively minor. The Applicant has no criminal record for offences of violence. The surrounding circumstances of the offence as found by the learned sentencing Judge (see paragraphs 12 – 14 above) do no particular credit to the Applicant. However, upon the findings in the District Court, the offence is not an especially serious example of a s.59(1) offence. The matter proceeded to the District Court because the Crown, as was its right, wished to proceed with the more serious prosecution under s.95(1) Crimes Act 1900. The jury acquitted the Applicant on that count. Thereafter, the Applicant stood for sentence before the learning sentencing Judge with respect to an offence to which he had attempted to plead guilty at an earlier time and on a factual basis which was contained within the Applicant’s own account given to police by way of record of interview on 24 November 2002.
In Crombie, above, it was observed at paragraph 14 that sentencing statistics demonstrated that, had the matter been dealt with in the Local Court, it was likely that it would have attracted a significantly lesser sentence than that imposed by the sentencing Judge in that case.
Sentencing statistics of the Judicial Commission of New South Wales were placed before this Court indicating patterns of sentencing for offences under s.59(1) in the Local Court between July 2000 and June 2004. Of 12,317 cases disposed of in that period, 4,579 (37%) were dealt with by way of a s.9 good behaviour bond. Some 2,054 cases (17%) were dealt with by fine only. Some 1,159 cases (9%) were dealt with by way of community service order. Of the 1,159 cases in which a community service order was made, 395 (34%) involved orders of 100 hours’ work, 228 (20%) involved orders of 150 hours’ work and 247 (21%) involved orders of 200 hours’ work. Only 88 cases (8%) involved orders of 300 hours’ work.
Of the 619 cases under s.59(1) disposed of in the District Court in the period between July 1997 and June 2004, 90 cases (15%) were dealt with by way of community service order. Of these, 17 cases (19%) involved orders to perform 300 hours’ work. In 50 cases (55%), community service orders of 250 hours or less were imposed.
Care is required in the use of sentencing statistics: R v Bloomfield (1998) 44 NSWLR 734 at 739. The facts of individual s.59(1) cases, apart from the present one, are not known to this Court. Nevertheless, there is a discernible pattern of sentencing for s.59(1) offences in the Local Court based upon a large number of offences proceeding to sentence over a four-year period. It is apparent that the imposition of a community service order of 300 hours is a substantial and infrequent penalty for this class of offence in the Local Court.
It is necessary to return to the facts of the present case. It is a case which may be properly characterised, as Counsel for the Applicant submitted, as a Local Court offence being dealt with in the District Court. In the (perhaps infrequent) circumstances represented by this case, reference to Local Court sentencing statistics may be especially useful.
If this matter had been disposed of in the Local Court, the most likely penalty would have been a s.9 good behaviour bond or a community service order involving a significantly lesser period than 300 hours. A fine, which might otherwise have arisen as an available appropriate penalty, would not have been suitable given the Applicant’s extended period of unemployment.
Conclusion
This Court functions within well-established jurisdictional boundaries with respect to an application for leave to appeal against sentence, primarily to ascertain whether the decision of the first-instance judge was in error and, if so, in what way it should be corrected: R v Vachalec (1981) 1 NSWLR 351 at 353. In circumstances where the learned sentencing Judge has made no reference to the summary disposal argument in his remarks on sentence, it is necessary to consider whether this omission is indicative of error. One way of testing this proposition is to consider whether the sentence itself appears manifestly excessive in all the circumstances of the case – if the factor had been taken into account and given appropriate weight, a substantially lesser sentence was appropriate in this case.
In the circumstances of the present case, I consider that the sentence imposed upon the Applicant was manifestly excessive. It is correct to observe, as the Crown has submitted, that the offence involved the use of physical force upon a stranger in a public place resulting from a loss of temper on the Applicant’s part. A sentence by way of community service order was open and warranted on the facts of this case.
However, the imposition of a community service order for 300 hours is manifestly excessive in this case. In my opinion, a lesser sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912. A community service order for a substantially shorter period, namely 100 hours, ought be imposed.
The Court has been provided with a pre-sentence report dated 28 April 2005 in which the Applicant is assessed as suitable for a community service order for the purposes of s.86(1) Crimes (Sentencing Procedure) Act 1999. It will be necessary for the Applicant to sign an undertaking, for the purposes of s.86(5) of that Act, as soon as practicable after the order is made by this Court.
I propose the following orders:
(a)leave to appeal is granted;
(b)appeal allowed and sentence by way of community service order for 300 hours imposed at the Parramatta District Court on 9 June 2004 is quashed;
(c)in lieu thereof, a community service order is made under s.8(1) Crimes (Sentencing Procedure) Act 1999 directing the Applicant to perform community service work for a period of 100 hours;
(d)for the purpose of implementing that order, the Applicant is to report to Bankstown Probation and Parole Office within seven days.
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LAST UPDATED: 29/04/2005
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