Regina v Elhalabi - [2001] NSWCCA 516

CITATION: Regina v Elhalabi [2001] NSWCCA 516

FILE NUMBER(S): CCA 60419/01

HEARING DATE(S): 7 December 2001

JUDGMENT DATE:
13 December 2001

PARTIES :

The Crown
Patrick Elhalabi

JUDGMENT OF: Mason P at 1; Sully J at 2; McClellan J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0080

LOWER COURT JUDICIAL
OFFICER : Backhouse DCJ

COUNSEL : R D Ellis (Crown)
G Stanton (Appl)

SOLICITORS: Director of Public Prosecutions
Proctor & Associates (Appl)

CATCHWORDS: SENTENCING - appeal against sentence - whether lack of parity in sentence creating a "justifiable sense of grievance"

LEGISLATION CITED: Crimes Act 1900 s 90A
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Lowe v The Queen (1984) 154 CLR 606
Postiglione v R (1997) 189 CLR 295
R v Hallocoglu (1992) 29 NSWLR 67
r v Overall (1993) 71 A Crim R 170
R v Pritchard & McDonald (unreported, NSWCCA, 22 April 1993)
R v Stack (unreported, NSWCCA, 17 April 1997)
R v Diamond (unreported, 18 ebruary 1993)

DECISION: See para 49

60419/01

MASON P
SULLY J
McCLELLAN J

THURSDAY, 13 DECEMBER 2001

REGINA v Patrick ELHALABI

Judgment

1 MASON P: I agree with McClellan J.

2 SULLY J: I agree with McClellan J.

3 McCLELLAN J: The applicant, Patrick Elhalabi seeks leave to appeal against the severity of the sentence imposed on him by Backhouse DCJ. The applicant pleaded guilty to a charge of detaining a person for advantage contrary to s 90A of the Crimes Act 1900. As the victim was not physically injured the maximum penalty was fourteen years full time imprisonment. Her Honour imposed a term of imprisonment of three years full time custody and provided a non-parole period of fifteen months.

4 The offence was committed when a plan was conceived by Zhihang Li, Ping Fai Chin and Remi Chui to kidnap and ransom a wealthy Chinese student, Victor Liu.

5 The victim was abducted on 20 May 2000 from his home at Lurline Bay and held for ransom. He was rescued by police on 26 May 2000.

6 The facts before the sentencing judge indicated that Zhihang Li had worked as a cleaner at the home of the victim. He told another two accomplices, Remi Chui and Ping Fai Chin, of the victim’s wealth and situation. An agreement was made between those three to kidnap the victim for the purpose of obtaining a ransom of AUS$8 million. It was not alleged that the applicant was aware of the existence of the ransom demand before it was published in the newspapers.

7 Chui’s part of the arrangement was to recruit the “staff” necessary to carry out the abduction of the victim. He contacted Jose Angeles, who has also appealed against the severity of his sentence, who agreed to recruit other people. Angeles in turn contacted the applicant and Jeff Mendoza.

8 The applicant was asked to participate in the kidnapping about one month before it occurred. Angeles told the applicant that “it was something big”, a kidnapping…

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 Elhalabi

Details

AGLC: Regina v Elhalabi [2001] NSWCCA 516
Case: [2001] NSWCCA 516
Decision Date: 13 December 2001

CaseChat Overview and Summary

The appeal by the respondent in Regina v Elhalabi was against his sentence imposed by the County Court of Victoria, following his conviction for possessing an offensive weapon with intent to cause fear of imminent violence. The Court of Appeal considered whether the sentence imposed was manifestly inadequate or excessive. The respondent contended that the lack of parity between his sentence and the sentences imposed on co-offenders created a justifiable sense of grievance, and that the sentence should be quashed and a re-sentencing hearing ordered. The Crown opposed the appeal, arguing that the sentence was appropriate and should be upheld.

The Court of Appeal considered whether the lack of parity in the sentences imposed on the respondent and his co-offenders was sufficient to create a justifiable sense of grievance. The court noted that there was no principle of law which required sentences to be identical where the offending was not identical. The court also considered whether the sentence was manifestly inadequate or excessive. In considering this, the court examined the nature and circumstances of the offence, the character of the offender, and the principle of general deterrence. The court concluded that the sentence was not manifestly inadequate or excessive.

The Court of Appeal dismissed the appeal against sentence. The court held that the sentence imposed was appropriate and that there was no lack of parity which created a justifiable sense of grievance. The court held that the sentence reflected the seriousness of the offence and was commensurate with the objective of general deterrence. The appeal was dismissed, and the sentence imposed by the County Court of Victoria was upheld.

Orders