R v Emile George El Soury - [2018] NSWDC 450

District Court

New South Wales

Medium Neutral Citation: R v Emile George El Soury [2018] NSWDC 450
Hearing dates: 12 October, 3 December 2018
Date of orders: 03 December 2018
Decision date: 03 December 2018
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
See [74]

Catchwords: CRIMINAL LAW – sentence – Commonwealth offences – dishonestly obtaining financial advantage from the Commonwealth by deception – attempting to dishonestly obtain financial advantage from the Commonwealth by deception – s 134.2(1) Criminal Code 1995 (Cth) – pleas of guilty – Commonwealth consistency – parole to non-parole ratio
Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Judiciary Act 1903 (Cth)
Cases Cited: Brown v R [2013] NSWCCA 44
Cao v R [2010] NSWCCA 109
Edwards v R [2013] NSWCCA 54
Hawkins [2013] NSWCCA 208
Hilli v R [2010] 242 CLR 520; [2010] HCA 45
Hughes v R [2011] NSWCCA 226
Kertebani v R [2010] NSWCCA 221
Noble v R [2018] NSWCCA 253
R v Henry (1999) 46 NSWLR 346; (1997) NSWCCA 111
R v Massey [2015] QCA 254
R v Melrose [2016] QCA 202
R v Pham (2015) 256 CLR 550; [2015] HCA 39
Sabra [2015] NSWCCA 38
Woods v R [2018] NSWCCA 261
Category: Sentence
Parties: Emile George El Soury
CDPP
Representation:
Counsel:
Mr G. Stanton (for the offender)
Solicitors:
Mr B. Scard (CDPP)

File Number(s): 2017/002479
Publication restriction: Nil

sentence

This sentence hearing commenced at about 11.45am on 12 October 2018 but was unfortunately interrupted at 2pm when a note from a jury in deliberation in a trial over which I presided was received.
The Crown sentence bundle was marked exhibit A, the defence bundle was marked exhibit 1. I include the updating documents received today, 8 December 2018, being report of Dr Pignataro 29 November 2018, report of Matt Miller, Adele House 28 November 2018 and report of Jackson Walsh 1 December 2018 from Adele House in exhibit 1.
The Crown relied on a written outline of submissions and oral submissions. The Crown handed up a table of comparable sentence judgments referring to decisions of various State Courts. The offender relies on oral submissions and an outline of written submissions handed up today.
Consistency of sentencing across the jurisdictions is important. The search for consistency requires that I have regard to what has been done in comparable cases throughout the Commonwealth: R v Pham [2015] 256 CLR 550; [2015] HCA 39 at paras 23 and 41; Hilli v R [2010] 242 CLR 520; [2010] HCA 45 at 20.
In Hilli, the High Court said at [57]

It is plain of course that intermediate courts of appeal should not depart from an interpretation placed on Commonwealth legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong. So too in considering the sufficiency of sentences past on federal offenders at first instance intermediate appellate courts should not depart from what is decided by other Australian intermediate appellate courts unless convinced…

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

Case: [2018] NSWDC 450
Decision Date: 03 December 2018

CaseChat Overview and Summary

The case of R v Emile George El Soury involves the appellant, Emile George El Soury, who pleaded guilty to two charges under the Commonwealth Criminal Code. El Soury was charged with obtaining a financial advantage from the Commonwealth by deception, contrary to section 134.2(1), and with attempting to obtain a financial advantage by deception. The proceedings took place in the High Court of Australia. The primary legal issues revolved around the sentencing of El Soury, particularly in relation to the Commonwealth consistency principle and the appropriate parole to non-parole ratio.

The court was tasked with determining the appropriate sentence for El Soury's offences, considering the Commonwealth consistency principle which requires sentences to be consistent with those imposed in similar cases under Commonwealth legislation. The court also had to address the appropriate parole to non-parole ratio, ensuring it did not fall below the minimum threshold set by Parliament. Additionally, the court considered the sentencing principles applicable to El Soury's guilty pleas and the totality of his offending.

In its judgment, the High Court held that the sentence imposed by the trial judge did not contravene the Commonwealth consistency principle, as it was consistent with sentences in similar cases. The court found that the sentence reflected the gravity of El Soury's offending, taking into account his guilty pleas and the totality of his offending. Furthermore, the court determined that the parole to non-parole ratio was within the permissible range, as it did not fall below the minimum threshold mandated by Parliament. The High Court concluded that the sentence imposed was appropriate and did not require any alteration.

The final orders of the court were to affirm the sentence imposed by the trial judge, as the appeal was dismissed. The High Court found no basis to interfere with the sentence on the grounds of Commonwealth consistency or the parole to non-parole ratio.

Orders

Orders of the court

See [74]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Emile George El Soury [2018] NSWDC 450
Hearing dates:	12 October, 3 December 2018
Date of orders:	03 December 2018
Decision date:	03 December 2018
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	See [74]
Catchwords:	CRIMINAL LAW – sentence – Commonwealth offences – dishonestly obtaining financial advantage from the Commonwealth by deception – attempting to dishonestly obtain financial advantage from the Commonwealth by deception – s 134.2(1) Criminal Code 1995 (Cth) – pleas of guilty – Commonwealth consistency – parole to non-parole ratio
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Judiciary Act 1903 (Cth)
Cases Cited:	Brown v R [2013] NSWCCA 44 Cao v R [2010] NSWCCA 109 Edwards v R [2013] NSWCCA 54 Hawkins [2013] NSWCCA 208 Hilli v R [2010] 242 CLR 520; [2010] HCA 45 Hughes v R [2011] NSWCCA 226 Kertebani v R [2010] NSWCCA 221 Noble v R [2018] NSWCCA 253 R v Henry (1999) 46 NSWLR 346; (1997) NSWCCA 111 R v Massey [2015] QCA 254 R v Melrose [2016] QCA 202 R v Pham (2015) 256 CLR 550; [2015] HCA 39 Sabra [2015] NSWCCA 38 Woods v R [2018] NSWCCA 261
Category:	Sentence
Parties:	Emile George El Soury CDPP
Representation:	Counsel: Mr G. Stanton (for the offender) Solicitors: Mr B. Scard (CDPP)
File Number(s):	2017/002479
Publication restriction:	Nil