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…

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 Elkhouri

Details

AGLC: R v Elkhouri [2001] NSWCCA 277
Case: [2001] NSWCCA 277
Decision Date: 13 July 2001

CaseChat Overview and Summary

The case of R v Elkhouri involved the respondent, Elkhouri, who had been convicted of various criminal offences including supplying dangerous drugs. The High Court of Australia was tasked with examining the sentencing approach taken by the lower court and determining whether the trial judge had erred in taking judicial notice of the prevalence of drug supply crimes. This decision was pivotal in understanding the parameters within which a judge can consider the prevalence of certain types of crimes when determining an appropriate sentence.

The primary legal issue revolved around whether the trial judge had the authority to take judicial notice of the prevalence of drug supply offences to inform the sentencing decision. This issue required the court to balance the principle of judicial notice against the need to ensure that sentences are proportionate and tailored to the specific circumstances of each case. The court had to consider the extent to which such judicial notice could influence the sentencing outcome and whether it adhered to established legal principles.

In addressing the issue, the High Court found that the trial judge's reliance on the prevalence of drug supply crimes was inappropriate as it did not align with the requirements for individualised sentencing. The court emphasised that while judicial notice of certain facts may be permissible, it must not overshadow the unique facts and circumstances of the particular case. The court held that the judge should have focused on the individual culpability and the specific details of the offence rather than the general prevalence of similar crimes. Consequently, the High Court concluded that the sentencing approach taken was flawed and necessitated a re-sentencing by the lower court.

The High Court's decision underscored the importance of individualised sentencing, ensuring that each case is assessed on its own merits without undue influence from external factors such as the prevalence of similar crimes. The court's ruling mandated that the lower court must re-evaluate Elkhouri's sentence, taking into account the appropriate legal principles and ensuring that the sentence reflects the individual circumstances of the case. This ruling serves as a critical reminder to judges of the necessity to maintain a balanced and proportionate approach to sentencing.

Orders