Regina v El-Youssef

[2000] NSWCCA 481

CITATION:	Regina v El-Youssef [2000] NSWCCA 481
FILE NUMBER(S):	CCA 60850/98
HEARING DATE(S):	20/11/00
JUDGMENT DATE:	15 December 2000
PARTIES :	Regina v Elie El-Youssef
JUDGMENT OF:	Barr J at 1; Carruthers AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/2120
LOWER COURT JUDICIAL OFFICER :	O'Reilly DCJ

COUNSEL :	(Applicant): G Nicholson QC (Crown): P G Berman SC
SOLICITORS:	(Applicant): Patricia White & Associates (Crown): S E O'Connor
CATCHWORDS:	Sentencing - severity appeal - five counts of robbery in company on indictment and four counts of robbery in company on a Form 1 - "an enormous criminal enterprise" - no question of principle.
LEGISLATION CITED:	Crimes Act 1900 Sentencing Act 1989
CASES CITED:	R v Tran (1999) NSWCCA 109 Pearce v The Queen (1998) 194 CLR 610 R v Valentini 46 A Crim R 23
DECISION:	Leave to appeal granted. Appeal dismissed.

IN THE COURT OF

CRIMINAL APPEAL

60850/98

BARR J
CARRUTHERS AJ

Friday, 15 December 2000

REGINA v Elie EL-YOUSSEF

JUDGMENT

1    BARR J: I agree with Carruthers AJ.

2    CARRUTHERS AJ: Elie El-Youssef seeks leave to appeal against the severity of sentences imposed upon him by Judge O’Reilly QC at the Liverpool District Court on 15 December 1998.

3 The applicant had earlier pleaded guilty to an indictment containing five counts of robbery in company under s 97(1) of the Crimes Act, 1900 (the Act). His Honour also took into account, at the applicant’s request, four offences of robbery in company by way of a prescribed Form 1.

4    His Honour imposed, on the first count, an overall sentence of ten years imprisonment with a minimum term of seven years to commence on 26 May 1998 and to expire on 25 May 2005 and an additional term of three years to commence on 26 May 2005. With regard to counts 2 to 5, his Honour imposed concurrent fixed terms of seven years imprisonment to commence on 26 May 1998 and to expire on 25 May 2005. The Form 1 matters were taken into account in passing sentence on the first count.

5    His Honour found special circumstances for the purposes of s 5(2) of the Sentencing Act 1989 based upon the applicant’s perceived need for a full three years of parole supervision “to help him settle down and make absolutely certain he has dealt with his drug problem.” This perceived need for extended supervision was not challenged by the applicant in this Court.

6    The maximum penalty prescribed for the subject offence is twenty years imprisonment.

7    The applicant was born in Spain on 16 October 1966 and arrived in Australia with his parents in about 1970. His father died in 1986 and his mother is still alive but, unfortunately, because of a stroke, she is now a paraplegic with little or no speech.

8    The applicant obtained the Higher School Certificate and, having found employment with the State Rail Authority, became a Track Engineer which is a responsible position.

9    However, in 1988 he suffered a severe injury to his left knee which rendered him unfit to continue his employment with the Rail Authority, and it is said that this became a catalyst for his future criminal activity.

10    The knee injury left him with continuing pain which, it is further said, led to addiction to narcotic substances.

11    The applicant contends that he committed the subject offences to obtain funds to support this addiction which at the time of the offences was costing him $200 per day. I note that there was a pre-sentence report dated 8 December 1998 before his Honour under the hand of Peter Lewis, Probation and Parole Officer, which states “he [the applicant] suggested the money he had obtained from the offences was spent on the purchase of drugs and gambling.”

12    Prior to the subject matters, the applicant had served a sentence by way of a fixed term of six months imprisonment in 1995 for stealing and a further fixed term of twelve months between October 1995 and October 1996 for larceny.

13    On 23 October 1995 the applicant was sentenced to a minimum term of eighteen months to commence on 23 October 1995 and an additional term of twelve months to commence on 23 April 1997 and to expire on 22 April 1998. This was with respect to a conviction at the Sydney District Court for break, enter and steal.

14    The applicant had been admitted to parole on 23 April 1997 and thus was on parole during the commission of the subject series of offences, with the exception of the last offence, which was committed on 28 April 1998.

15    His Honour described this series of offences as “an enormous criminal enterprise”. No challenge could be made to this description.

16    Dealing first with the matters in the Indictment. They all involved robbery in company of banks in the western suburbs of Sydney.

17    As to count 1 which occurred on 16 December 1997, the applicant was in company with three co-offenders, one of whom was armed with a 9mm pistol. Count 2 occurred on 30 September 1997 and there was one co-offender who was armed with a 9 mm pistol. Count 3 occurred on 4 November 1997. The applicant was with one co-offender but neither was armed. Count 4 occurred on 17 March 1998. There was one co-offender armed with a small calibre pistol. Count 5 occurred on 28 April 1998 when the applicant was in company with one co-offender who was armed with a knife. This was the most serious of the offences.

18    A total sum of $233,866 was taken and only a modest sum was recovered when the applicant was arrested. On all occasions the applicant and his co-offenders were disguised and members of the staff of the various banks were threatened. The money was generally shared equally, it would appear, between the co-offenders. The maximum stolen from one bank was $108,794 (count 1).

19    The four matters on Form 1 involved three robberies in company of post offices in the suburbs and one offence involved the robbery of a bank. With the exception of that last-mentioned matter, which occurred on 17 November 1997, either the applicant or his co-offender was armed.

20    It is important to note the following remarks on sentence by his Honour:

“I looked at the section 97(1) statistics myself and found that in eighty eight cases the overall sentence ranged from three years to eight years. Plainly, where I am dealing with nine offences, one would be heading towards the top of that range. There was only one case where the overall sentence was fourteen years, and in only two per cent of cases was the overall sentence twelve years. So that is some guide to me.
Mr Dalton makes the point that the plea of guilty has a considerable value, and indeed it has.”

21    It was submitted on behalf of the applicant that given the historical range of sentencing for offences of this type, the overall sentence is too severe in circumstances where a plea of guilty had been entered, as here, at an early stage of the proceedings.

22    It was said that the sentencing statistics supported an argument that an overall sentence in this case exceeding eight years would be considered excessive.

23    It was argued that, allowing for a discount to the order of fifteen per cent for the pleas of guilty, his Honour should be taken to have started by fixing an appropriate penalty, reflecting the objective criminality of the offences, at about 11.5 years. A discount of about fifteen per cent would reduce this to an overall head sentence of ten years. In starting at a figure of this magnitude, therefore, his Honour started his calculations at too high a point and, finished up with an overall sentence which was outside that appropriate for the offences committed, given the historical pattern of sentencing.

24    It was argued that “very serious though the offences were they did not fit into the worst category of case,” and an appropriate head sentence should not have exceeded seven years.

25    In support of the argument that these offences did not fall into a worst category of case, emphasis was placed (inter alia) upon the speed with which the robberies were carried out, and allegedly without infliction of extreme violence on staff and physical terror over a sustained period of time.

26    It is true that the offences were apparently in each case carried out with expedition but this may be accounted for by the professional manner in which they were executed and the understandable reluctance of members of the banks’ staff to resist the demands which were made upon them. In three cases a pistol was involved and, in the fourth, a knife described as a Rambo style knife with a blade about 15 to 20 cm in length with a serrated edge.

27    In my view these offences clearly fell within “a worst category of cases” and the fact that no staff member was physically injured does not exclude, by any means, the possibility of a severe psychological reaction to some of them.

28    It is now well known that the major banks are required to have counsellors available at all times to assist bank staff who have been traumatised by armed robberies or robberies in company or (as in this case) a combination of both.

29    It is well established that sentencing for offences of this nature involves a significant deterrent factor.

30    A number of significant factors were also relied upon by the applicant including the fact that he co-operated with the investigating police after his arrest but not to the extent, perhaps understandably, of revealing the identities of his co-offenders.

31    It is not necessary to refer to the detail of the subjective material, although I do note that there was evidence that by reason of the applicant’s physical and emotional health he will have difficulty in adapting to a long period of incarceration. The subjective aspects of the case were carefully considered by his Honour.

32    No dispute, as I have indicated, arises in so far as the three year period of supervision allowed by his Honour. However, it was contended that his Honour erred because it would appear that, having resolved that a three years supervision period was necessary, his Honour increased the head sentence in order to accommodate that need.

33    Senior counsel for the applicant submitted that his Honour should have fixed an effective head sentence of seven years, with a minimum term of four years and an additional term of three years.

34    A significant matter is that the applicant was on parole at the time he committed (with one exception) this serious regime of offences. It is now well established that the sentencing regime should mark the gravity of the applicant’s conduct in abusing his parole: see, for example, R v Tran (1999) NSWCCA 109, para 15.

35    The applicant also suffers from the disadvantage of a history of prior serious criminal conduct.

36    Prior to counsel being retained for the applicant written submissions were filed by him with the Court.

37    I have given careful consideration to those submissions and the responses by the Crown to them.

38    In so far as the sentencing statistics are concerned, they really provide, at the most, marginal assistance in a case of this nature. The number of significant elements put the applicant in a very restricted class indeed. Firstly, there is the large number of subject offences, secondly, the fact that he has committed prior offences, thirdly, that (with one exception) he was on parole at the time of the commission of the subject offences and finally his age and the fact that he pleaded guilty.

39    The sentences were imposed prior to the judgment of the High Court in Pearcev The Queen (1998) 194 CLR 610 and, accordingly, the sentences were structured on the basis of the principle of totality.

40    I have little doubt that if his Honour had structured the sentences in accordance with the principles enunciated in Pearce that he would have achieved the same overall effect.

41    With regard to the paragraph in his Honour’s remarks on sentence which I have quoted in paragraph 19 above, I do not think that what his Honour there said has the effect of impugning the overall sentence and minimum term which he imposed.

42    The statistics to which his Honour was referring related to a far broader class of cases than the subject case but, in any event, I cannot accept that his Honour was, in that paragraph, committing himself to an overall sentence (prior to applying a discount for the pleas of guilty) to the order of eight years.

43    Despite the forceful arguments by Mr G Nicholson QC for the applicant I am unable to discern any error in his Honour’s reasoning. Further, I am unable to conclude, after balancing the objective and subjective circumstances, that the sentences were outside the discretion available to his Honour.

44    It is unnecessary to repeat that the offence of robbery, particularly in company and, or, with arms, is an offence of the utmost gravity: see R v Valentini (1989) 46 A Crim R 23.

45    I would propose that the application for leave to appeal be granted bearing in mind the length of the sentences imposed, but that the appeal be dismissed.

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