Regina v Amir Ibrahim El Mostafa

[2007] NSWDC 220

Pending Appeal:

District Court

CITATION:	Regina v Amir Ibrahim El Mostafa [2007] NSWDC 220
HEARING DATE(S):	21/09/2007 (see case number 219 of 2007 for trial dates)
JUDGMENT DATE:	21 September 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Sentence correction for the offence of riot - Imprisonment for 5 years and 4 months with a non-parole period of 2 years and 8 months.
CATCHWORDS:	Sentence correction - Incorrect maximum term for the offence of riot relied upon in original sentence - Riot
LEGISLATION CITED:	s43 Crimes (Sentencing Procedure) Act 1999 s93B Crimes Act 1900
PARTIES:	Regina Amir Ibrahim El Mostafa
FILE NUMBER(S):	06/11/0574
COUNSEL:	Mr P Calvert for the ODPP Mr C Simpson for the offender
SOLICITORS:	Ms S Flemming for the ODPP Ms T Duffy for the offender

JUDGMENT

1 When I sentenced Mr Amir El Mostafa on 24 August 2007 I was given some wrong information about the maximum sentence for one of the offences. This application by the Crown is to correct the sentence so that it is in accordance with the law. I sentenced Mr El Mostafa for four offences: an offence of riot contrary to s 93B of the Crimes Act 1900, two offences of assault occasioning actual bodily harm and one offence of maliciously inflicting grievous bodily harm.

2 The wrong information was this. I was told that the maximum penalty for riot was fifteen years. That in a sense is correct because the current penalty for that offence is indeed fifteen years. However, the riot committed by Mr El Mostafa occurred on 29 January 2005 and at that date the maximum sentence for riot was ten years. It was not until 15 December 2005, almost a year after the riot, that the maximum penalty was increased. There are no relevant changes to the maximum penalties for the other offences.

3 I should add that Mr Calvert, the Crown Prosecutor who appeared in the trial and the sentence proceedings, has acknowledged his responsibility for the error and apologised to the court and the parties. That apology is for my part accepted.

4 Section 43 of the Crimes (Sentencing Procedure) Act 1999 applies to criminal proceedings where a court has imposed a penalty that is contrary to law. The application is made under that section. It seems to me that the penalty I imposed was contrary to law in that I was guided by the incorrect maximum penalty. In those circumstances the section gives me the power to re-open proceedings and to hear the parties. That has occurred today. I have heard from Mr Calvert and Ms Duffy who appears for Mr El Mostafa. I am empowered by the section once I have heard the parties to impose a penalty that is in accordance with the law and, if necessary, I am empowered to amend any relevant conviction or order.

5 Both Mr Calvert and Ms Duffy agree in their submission. Their submission is that the sentence I imposed for the offence of riot ought to be adjusted by reducing both the head sentence and the non-parole period by a third. This would reflect the correct maximum sentence at the time which was two-thirds of the maximum which I was lead to believe was the law. I accept their submission.

6 Mr El Mostafa is entitled to see a real benefit from the fact that I sentenced him in accordance with too high a maximum. The benefit should flow to him both in the overall sentence and the non-parole period. Accordingly what I propose to do is to impose an adjusted penalty in respect of riot which is two-thirds of the overall penalty and non-parole period which I imposed previously.

7 I will not adjust the sentences I imposed in respect of the other offences, except in specifying their commencement dates. I will maintain the accumulation which I incorporated into the sentencing whereby the penalty for each assault occasioning actual bodily harm should add three months and the penalty in respect to the maliciously inflicting grievous bodily harm should effectively add a penalty of six months imprisonment.

8 Accordingly pursuant to s 43(2)(a) of the Crimes (Sentencing Procedure) Act 1999 in respect of the count of riot, count one, I impose a sentence of five years and four months imprisonment as follows. I fix a non-parole period of two years and eight months to commence on 29 July 2005 and to expire on 28 March 2008. I fix the balance of the term as two years and eight months to commence on 29 March 2008 and to expire on 28 November 2010.

9 Pursuant to s 43(2)(b) I amend the sentence I imposed in respect of count two, assault occasioning actual bodily harm in company, by specifying the commencement of the two year non-parole period as 29 June 2006 and its expiry as 28 June 2008. I further amend that sentence by specifying the balance of the term of three years to commence on 29 June 2008 and to expire on 28 June 2011.

10 Pursuant to the same section and in respect of count three, the second assault occasioning actual bodily harm in company, I amend the sentence I imposed in that case by specifying the commencement of the two year non-parole period as 29 September 2006 and its expiry as 28 September 2008 and by specifying the three year balance of term as commencing 29 September 2008 and expiring on 28 September 2011.

11 In respect of count four, the maliciously inflicting grievous bodily harm in company, pursuant to the same section I amend the sentence I imposed in respect of that offence by fixing the non-parole period of two years to commence on 29 March 2007 and to expire on 28 March 2009, and by fixing the balance of the term of two years to commence on 29 March 2009 and to expire on 28 March 2011.

12 In all other respects I confirm my remarks on sentence delivered on 24 August 2007 and the sentences imposed on that day.

Now are there any other orders I need to make?

CALVERT: Yes your Honour, if your Honour would inform the offender as to his earliest release date.

HIS HONOUR: I will do that. And that’s all, isn’t it, Ms Duffy?

DUFFY: Yes, I think that’s all then your Honour.

HIS HONOUR: Mr El Mostafa it is your lucky day. It was a mistake made about the maximum. The prosecution has very fairly drawn it to my attention and I have reduced your sentence for riot by one-third.

OFFENDER: Thank you.

HIS HONOUR: So your sentence for riot is no longer eight years but five years and four months with a minimum of two years and eight months.

OFFENDER: Thank you very much. Does that mean in prison?

HIS HONOUR: Yes a minimum in prison of two years and eight months, which is one year and four months less than before. The overall effect is this, instead of being released on 28 July 2010 you will now be released one year and four months earlier and the date on which you will be eligible to be released is 28 March 2009. So I will just repeat 28 March 2009 is the earliest date on which you will be eligible to be considered for release by the Parole Board.

OFFENDER: Thank you.

HIS HONOUR: Do you understand?

OFFENDER: Yeah thank you very much.