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…

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 Regina v El-Youssef

Details

AGLC: Regina v El-Youssef [2000] NSWCCA 481
Case: [2000] NSWCCA 481
Decision Date: 15 December 2000

CaseChat Overview and Summary

The case of Regina v El-Youssef involves an appeal by the respondent, El-Youssef, against the severity of the sentence imposed upon him. The appellant was convicted of five counts of robbery in company on indictment and four counts of robbery in company on a Form 1. The trial judge, acting in accordance with the mandatory sentencing provisions, imposed a sentence of imprisonment for each count, which the respondent sought to appeal on the grounds of excessive severity. The appeal was heard in the High Court of Australia.

The central legal issue before the Court was whether the sentence imposed by the trial judge was manifestly excessive. The respondent's appeal hinged on arguments that the trial judge did not adequately consider the totality principle and failed to give sufficient weight to the respondent's personal circumstances. The Crown, on the other hand, contended that the trial judge's assessment of the severity of the sentence was sound and that the totality principle had been appropriately considered. The Court was required to determine whether the sentence was manifestly excessive and, if so, to what extent it should be reduced.

The Court, in considering the appeal, examined the nature and extent of the crimes committed and the sentence imposed by the trial judge. It was noted that the respondent's criminal activity constituted "an enormous criminal enterprise," and the trial judge had properly assessed the gravity of the offences and the need for deterrence. The Court found that the trial judge had considered the totality principle and had given appropriate weight to the respondent's personal circumstances. Ultimately, the Court concluded that the sentence imposed was not manifestly excessive and dismissed the appeal. The Court held that the trial judge's assessment of the severity of the sentence was sound, and there was no question of principle that warranted the Court's intervention.

No further orders were made by the Court. The sentence imposed by the trial judge remained in place, and the respondent's appeal against the severity of the sentence was dismissed.

Orders