Mr M. Grogan - Applicant Mr J. Stratton SC - Respondent
SOLICITORS:
Mr C. K. Smith - DPP Ms B. Duchen - Respondent
LOWER COURTJURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
03/11/0270
LOWER COURT JUDICIAL OFFICER :
Shillington ADCJ
60390/03
IPP JA WHEALY J DAVIDSON AJ
TUESDAY 2 December 2003
REGINA v Andrew Salim ELFAR
Judgment
1 WHEALY J: This is a Crown appeal against a sentence imposed by his Honour Acting Judge Shillington QC at the District Court, Sydney on 22 August 2003.
2 On 1 April 2003 the respondent pleaded guilty to the following charge:
That he between 23 November 2001 and 2 August 2002 at Sydney in the State of New South Wales did conspire with George Elfar and diverse others to dispose of stolen property, to wit, motor vehicles and other property, the property of diverse owners, before then stolen, the stealing of which amounted to a serious indictable offence, knowing the same to have been stolen.
3 The maximum penalty for the substantive offence, the commission of which was the object of the conspiracy, is twelve years’ imprisonment. The conspiracy involved a large scale “re-birthing” of stolen vehicles in order that they could be sold overseas.
4 On 22 August 2003 at the Sydney District Court, the respondent was sentenced to imprisonment for three years and six months commencing on 1 August 2002 with a non-parole period of eighteen months expiring on 31 January 2004.
5 An appeal was lodged by the Director of Public Prosecutions on 25 September 2003.
6 At the sentence hearing, the sentencing judge had before him a statement of the facts relied upon by the prosecution. This contained full details of the telephone intercepts and of other evidence relevant to the proceedings. Secondly, there was material to show that the respondent had no relevant prior criminal history. Thirdly, there was a Probation and Parole Service pre-sentence report dated 4 June 2003. This provided the court with a number of sentencing options available to the sentencing judge if he saw fit to use them.
7 This report also contained a brief mention of the respondent’s upbringing and his family situation. It referred to the fact that when the respondent had been in his first year at the University of Western Sydney, his father had directed him to cease studying and required him to assist in his smash repair workshop. There was also reference in this report to the respondent’s statements to the parole officer that his role in the offence had been to disassemble the motor vehicles and run…
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.
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Details
AGLC
R v Elfar [2003] NSWCCA 358
Case
[2003] NSWCCA 358
Decision Date
CaseChat Overview and Summary
The appeal in Regina v Elfar concerned the sentence imposed on Andrew Salim Elfar, who had pleaded guilty to conspiring to dispose of stolen property, specifically motor vehicles, as part of a large-scale operation aimed at reselling the vehicles overseas. The conspiracy involved property valued at over $1.2 million. The District Court sentenced Elfar to three and a half years in prison with a non-parole period of eighteen months. The Crown appealed the sentence, arguing that it was manifestly inadequate given the gravity of the offence and the need for general deterrence.
The legal issues before the Court of Criminal Appeal were whether the sentencing judge had erred in accepting hearsay material without direct evidence and whether the sentence imposed was manifestly inadequate, considering the objective seriousness of the offence and the subjective circumstances of the respondent. The Court examined the principles established in previous cases, emphasizing the importance of direct evidence to substantiate claims of exculpatory factors and the need for a balanced consideration of both the seriousness of the offence and the subjective circumstances of the offender.
The Court found that the Crown had not objected to the hearsay material presented or disputed its contents during the sentencing hearing, thus failing to take a clear position against its use. Consequently, the Court concluded that the Crown could not now complain about the sentencing judge's reliance on this material. Regarding the sentence, the Court acknowledged that the imposed sentence was lenient but deemed it appropriate, given the respondent's early guilty plea, his limited involvement in the conspiracy, and the coercive influence of his father. The Court concluded that the sentence, while at the lower end of the range, was not manifestly inadequate as it appropriately balanced the objective and subjective factors.
The Court of Criminal Appeal dismissed the appeal, affirming the sentence imposed by the District Court.