R v Elkhouri

[2001] NSWCCA 277

CITATION:	R v Elkhouri [2001] NSWCCA 277
FILE NUMBER(S):	CCA 60822/00; 60128/01
HEARING DATE(S):	13 July 2001
JUDGMENT DATE:	13 July 2001
PARTIES :	Regina Christopher Elkhouri
JUDGMENT OF:	Simpson J at 28; Sperling J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0341; 00/21/0180
LOWER COURT JUDICIAL OFFICER :	Shillington DCJ & Karpin DCJ

COUNSEL :	D M Woodburne for the Crown K G Horler QC for the Appellant
SOLICITORS:	S E O'Connor for the Director of Public Prosecutions Otto Stichler & Associates for the Appellant
CATCHWORDS:	Criminal Law - sentencing - judicial notice of prevalence of crimes of a particular kind - otherwise, no question of principle
CASES CITED:	A [1999] NSWCCA 61 Brenton (NSWCCA, 14 November 1994, unreported)
DECISION:	Leave to appeal granted in both matters and the appeal in each case dismissed.

- 1 -IN THE COURT OF

CRIMINAL APPEAL

Simpson J
Sperling J

Friday 13 July 2001

60822/00 & 60128/01 Christopher El Khouri v Regina

Judgment

1    SPERLING J: The applicant, having pleaded not guilty, was convicted on 24 November 2000 at a trial before Shillington DCJ on one count of break, enter and steal. The offence involved the theft of a motor vehicle on 29 March 1999. On 2 February 2001, Shillington DCJ sentenced the applicant to a term of imprisonment of two years and six months from 24 November 2000 with a non-parole period of one year and eleven months, expiring on 23 October 2002.

2    On 23 February 2001, three weeks after receiving that first sentence, the applicant was sentenced by Karpin DCJ following pleas of guilty to three counts of receiving - again, motor vehicles. Two similar offences were taken into account on Form 1.

3    Karpin DCJ had before her the evidence adduced before Shillington DCJ and his remarks on sentence, together with further evidence adduced before her. She recognised that the principle of totality applied on the basis that all the offences were part of the same course of conduct. In relation to the first of the counts before her and taking into account the two offences on Form 1, she imposed a sentence of imprisonment for four years dating from 24 November 2000 with a non-parole period of two years and six months expiring on 23 May 2003. Her Honour imposed lesser sentences for the offences under the remaining counts before her, these to be served concurrently.

4    Shillington DCJ's sentence became a concurrent sentence expiring earlier than the sentence imposed by her Honour. His sentence was, in effect, replaced by the sentences imposed by her Honour and it ceased to have any practical significance so far as imprisonment of the appellant was concerned.

5    The appellant seeks leave to appeal against the sentence imposed by Shillington DCJ and the sentences imposed by Karpin DCJ.

6    The sentence by Karpin DCJ under the first count before her was intended to reflect the whole of the applicant's culpability for the course of conduct comprised by all the offences, including the break-enter offence for which the applicant was sentenced by Shillington DCJ. Accordingly, if the sentencing by Karpin DCJ is free of error, that is the end of the matter. Any error by Shillington DCJ will have resulted in no injustice warranting action by this court because it will have had no effect on the ultimate result, unless Karpin DCJ was influenced by any such error.

Shillington DCJ's sentence

7    In his remarks on sentence, Shillington DCJ said:

"It is common knowledge that the organised theft of expensive late model vehicles for sale is endemic in this country and it is necessary that the courts should do all that is possible to deter these activities. Those are the objective facts."

8    The applicant says this finding of fact was not open to his Honour in the absence of evidence and should not have been made in any event without notice to the applicant. As will appear, a sentencing judge is entitled to take judicial notice of the prevalence of crimes of a particular kind. As to whether the evidence before his Honour established that the motive for the crime was resale, that becomes immaterial because again, as will appear, the evidence before Karpin DCJ showed irrefutably the purpose, as she found it to be, of the course of conduct comprised by the offences as a whole, including this offence. Any error by Shillington DCJ in this regard did not, therefore, influence the findings made by Karpin DCJ in that regard.

9    It is then submitted that Shillington DCJ gave undue weight to the applicant's criminal record, failed to take into account matters said to be relevant to special circumstances and erroneously failed to find special circumstances.

10    These submissions are without merit. But however that may be, again, as will appear, Karpin DCJ made her own evaluation of the relevant objective factors on the evidence before her, including the evidence before Shillington DCJ and brought that evaluation to bear in determining the sentences which she imposed.

11    There is no reason to think she was influenced in that regard by Shillington DCJ's evaluation of such factors on the evidence before him or by the sentence he imposed for the break-enter offence in isolation having regard to his evaluation of such factors.

Karpin DCJ's sentence

12    In relation to the sentences imposed by Karpin DCJ, the objective facts included the following. The applicant had his own business as a panel beater. On 4 April 1999, the police attended premises at Lidcombe leased by him. They found a large number of vehicles, few of which appeared to be totally intact, and a substantial quantity of parts and components. The offences to which the applicant pleaded guilty before her Honour related to vehicles found on the premises all of which had been stolen. They included a BMW and a Toyota four-wheel drive. Of the five vehicles mentioned in the three charges and in Form 1, all but one had their registration plates removed. The engine and chassis of the Toyota had been completely removed and replaced with the engine and chassis of another vehicle. Another of the five vehicles, a Subaru Impreza, had been substantially stripped; the engine was missing.

13    The vehicles which were the subject of the three charges before her Honour had been stolen on various dates between 28 March and 5 September 1998. Precisely when they had come into the applicant's possession - that is, the dates of receiving - was not apparent. Some of them had obviously been worked on over a period of time. It was obvious that the enterprise being carried on by the applicant was what is popularly known as "rebirthing" stolen motor vehicles.

14    The break-enter offence, committed on 29 March 1999, involved an attempt to acquire another Subaru vehicle. The vehicle had been removed by the applicant and others from a garage on private property and was being worked on to neutralise the alarm system when the offenders were disturbed. In the context of what was found on the applicant's premises about a week later, on 4 April 1999, this was obviously an attempt to acquire another vehicle for the rebirthing operation.

15    Karpin DCJ made the following finding: "The facts of this matter disclose a process of rebirthing cars..." That finding was justified. Indeed, it was unavoidable. The applicant says that the finding was influenced by an erroneous finding by Shillington DCJ in that regard. However that may be, Karpin DCJ's finding, if relevant, was compelled by the evidence before her irrespective of what was before Shillington DCJ and irrespective of his finding on the evidence before him.

16    Karpin DCJ is criticised for the way she used this finding. She went on to say: "The rebirthing of cars is endemic in the community." She then made observations about the financial consequences of such crimes for the owners of stolen cars, for the unwitting purchasers of "rebirthed" vehicles and for the community, through insurance premiums.

17    A sentencing judge is entitled to take notice of the incidence of particular kinds of crime and to bring that information to bear in the sentencing process as relevant to the need for general deterrence - that is, in order to deter others from committing the particular type of crime in so far as sentencing practice is capable of achieving that objective: Brenton (NSWCCA, 14 November 1994, unreported); A [1999] NSWCCA 61 at [21] and [26].

18    In this instance, the fact that the vehicles involved were either received or stolen for the purpose of such a rebirthing operation was a relevant consideration. It categorised the applicant's conduct as being of a kind which, on an approach open to a sentencing judge, required that due weight be given to general deterrence in the sentencing process because of the prevalence and social implications of crimes of that kind.

19    The evidence itself was sufficient to put the applicant's legal representatives on notice that it was likely to be used in this way. The applicant had the opportunity, through his legal representatives, to say whatever could be said about that.

20    Then it is submitted that Karpin DCJ failed to take relevant subjective matters into account. In careful, sensitive and insightful remarks, her Honour referred to all the matters mentioned in argument here. There is no substance in the submission that, having referred to them, she failed to take them into account.

21    Lastly, it is submitted that Karpin DCJ failed to take special circumstances into account. The non-parole period set by her Honour in relation to count 1, which is the effective sentence for the totality of criminal conduct involved in all the offences, is less than three quarters of the sentence. Three quarters of the sentence is the minimum non-parole period allowed by the legislation absent special circumstances. Under the formula, that would be a non-parole period of not less than three years in this case. Her Honour set a non-parole period of two years and six months which is less than the provisional minimum under the legislation.

22    Her Honour did not say whether she found special circumstances. However, there are only two possibilities. Either the judge considered the question of special circumstances, found them, and reduced the non-parole period accordingly, omitting to record what she had done in that regard; or she made an arithmetical error in calculating a non-parole period in accordance with the provisional formula in the legislation. A non-parole period of two years six months cannot be an arithmetical error for three quarters of four. That leaves only the first alternative as the explanation of what was done.

23    Ordinarily, a failure to mention special circumstances may imply a failure to consider them, but that cannot be so in this case. For the reasons I have given, one has to conclude that Her Honour considered whether there were special circumstances, decided that there were and reduced the non-parole period on that account relative to the provisional statutory formula.

24    The non-parole period of two years and six months left one and a half years potentially available for supervision on parole. Her Honour was not bound to allow longer than that on the facts of this case. I would not do so myself if it were necessary to resentence the applicant.

25    Lastly, it is submitted that the principle of totality was not observed by Karpin DCJ and that if the applicant had been sentenced for all the offences at one and the same time, the effective sentence would have been less.

26    There is no substance in this submission. Karpin DCJ recorded that the Crown conceded that all the offences, including that for which the applicant was sentenced by Shillington DCJ, should be treated as part of the same course of offending and that the principle of totality therefore applied. There is no reason to suppose she did not apply that principle or that she did not apply it correctly. The effective sentence she imposed is entirely consistent with the total objective criminality involved and the subjective factors disclosed by the evidence.

Conclusion

27    I propose that leave to appeal be granted in both matters and that the appeal in each case be dismissed.

28    SIMPSON J: I agree. The orders of the Court will be as proposed by Sperling J.

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