R v El Masri

Case [2005] NSWCCA 167

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 J

29 April 2005

REGINA v SAID EL MASRI

Judgment

  1. HUNT AJA:  I agree with  Johnson J.

  2. HULME J:  I agree with  Johnson J.

  3. 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. 

  4. 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.

  5. 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

  6. 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…

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R v El Masri [2005] NSWCCA 167
Case
[2005] NSWCCA 167
Decision Date

CaseChat Overview and Summary

In the case of R v El Masri, the applicant, Mr. El Masri, appealed against the sentence imposed by the Parramatta District Court. Mr. El Masri had pleaded guilty to a charge of assault occasioning actual bodily harm under section 59(1) of the Crimes Act 1900. The case originated from an incident on 24 November 2002, where Mr. El Masri struck the victim on the side of the head after an altercation in a public toilet in Belmore. The District Court sentenced Mr. El Masri to a community service order of 300 hours. The primary legal issue before the court was whether the District Court had erred in imposing the 300-hour community service order without adequately considering that the case could have been appropriately dealt with in the Local Court.

The court examined whether the District Court overlooked the fact that summary disposal in the Local Court was both open and appropriate for the offence. It was noted that if the case had been disposed of in the Local Court, the most likely penalty would have been a good behaviour bond or a community service order involving significantly fewer hours than 300. The court held that the District Court’s failure to consider the summary disposal argument was indicative of error. The court concluded that the 300-hour community service order was manifestly excessive in the circumstances of the case and that a substantially lesser sentence was warranted. Consequently, the sentence was deemed to be manifestly excessive, and the court allowed the appeal.

In light of the court’s findings, it was ordered that leave to appeal be granted, the sentence imposed by the Parramatta District Court be quashed, and in lieu thereof, a community service order be made directing the applicant to perform community service work for a period of 100 hours. The applicant was also required to report to Bankstown Probation and Parole Office within seven days to implement the order.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.