R v Elachi - [2003] NSWCCA 24

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. ELACHI [2003] NSWCCA 24

FILE NUMBER(S):
No. 60381 of 2002

HEARING DATE(S): Wednesday 19 February 2003

JUDGMENT DATE: 19/02/2003

PARTIES:
REGINA v.
ELACHI, Radwan

JUDGMENT OF: Hulme J Greg James J Shaw J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3133; 02/21/3135; 02/21/3136

LOWER COURT JUDICIAL OFFICER: Moore, DCJ.

COUNSEL:
Crown: D.M. Woodburne
App: S.W. Wilkinson

SOLICITORS:
Crown: S.E. O'Connor
App: Zenos Jordan

CATCHWORDS:
Criminal law - sentence - appeal - sentence lenient - asserted error in failing to give discount for assistance - any adjustment would render sentence disproportionately lenient - s.6 applies to end result not to a mere component of the sentence - no basis to interfere.

LEGISLATION CITED:
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 60381 of 2002
HULME, J.
GREG JAMES, J.
SHAW, J.
WEDNESDAY 19 FEBRUARY 2003

REGINA v. RADWAN ELACHI

Judgment

HULME J: I will ask Greg James, J. to deliver the first judgment.
GREG JAMES, J: This is an application for leave to appeal against sentences imposed in the Campbelltown District Court in proceedings on 13 June, 14 June and 17 June 2002.
The applicant came forward for sentence on three counts of obtain financial advantage by deception. That crime is punishable by imprisonment for a maximum of five years. He also came forward on two counts of use false instrument. That crime is punishable by a maximum of imprisonment for 10 years.
In addition, there were three form ones on which various offences were stipulated: on the first Form One, three counts of obtain money by deception, one count of possession of prohibited plant and one count of goods in custody; on the second Form One, three counts of attempt to attempt to obtain money by deception; on the third Form One, four counts of use false instrument and one count of failure to appear.
In respect of those matters, the trial judge imposed on count one, count two and count three, taking into account the offences in the first Form One, on count one and those in the second Form One on count three, a sentence of imprisonment for three years and four months to commence on 1 January 2002. The trial judge stipulated a non-parole period of two years to commence on 1 January 2002 and to expire on 31 December 2003.
On counts four and five the trial judge passed a sentence of imprisonment for four years to commence on 1 January 2002 and stipulated a similar non-parole period to that already ordered.
That meant that the overall sentence for these offences, including for the matters taken into account on the various form ones, was an overall sentence of four years with a two year non-parole period to commence on 1 January 2002.
The applicant had an utterly appalling record for offences of fraud. He was dealt with for…

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 R v Elachi

Details

AGLC: R v Elachi [2003] NSWCCA 24
Case: [2003] NSWCCA 24
Decision Date: 19 February 2003

CaseChat Overview and Summary

The case of R v Elachi was heard in the court, where the appellant contested the sentence imposed upon him. Elachi appealed against his sentence on the basis that it was excessively lenient, particularly in failing to grant a discount for his cooperation. The nature of the case involved the sentencing of the appellant following his conviction for serious criminal activity. The court was tasked with determining whether the trial judge erred in his sentencing by not adequately considering the appellant's assistance as a mitigating factor. Additionally, the court had to assess whether any adjustment to the sentence would render it disproportionately lenient and whether section 6 of the relevant statute applied to the end result of the sentence rather than merely a component.

The primary legal issue before the court was whether the trial judge's failure to apply a discount for the appellant's assistance constituted a significant error in the sentencing process. The court examined whether the sentence, when adjusted for the assistance provided, would still be proportionate and whether it was permissible to consider such a discount under the relevant statutory provisions. Furthermore, the court had to determine whether the error, if any, warranted interference with the sentence imposed by the trial judge. The court noted that section 6 of the statute applies to the overall result of the sentence and not to individual components of the sentencing decision.

In delivering the judgment, the court concluded that any adjustment to the sentence to account for the appellant's assistance would result in a sentence that was disproportionately lenient. The court held that section 6 of the statute applied to the end result of the sentence, reinforcing that adjustments could not be made to individual components of the sentence. The court found no basis to interfere with the sentence imposed by the trial judge, affirming that the sentence was appropriate given the circumstances of the case. The appeal was accordingly dismissed, and the original sentence stood.

Orders