Zreika v The Queen; Elsaj v The Queen

Case •

[2016] NSWCCA 177

•

19 August 2016

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Zreika v R; Elsaj v R [2016] NSWCCA 177
Hearing dates:1 August 2016
Date of orders: 19 August 2016
Decision date: 19 August 2016
Before: Hoeben CJ at CL at [1]
Button J at [120]
N Adams J at [122]
Decision:

Zreika – Leave to appeal granted but appeal dismissed.

 Elsaj – Leave to appeal against sentence granted but appeal dismissed.
Catchwords: CRIMINAL LAW – sentence appeal – ZREIKA – six armed robbery and aggravated armed robbery charges with three armed robberies on a Form 1 – aged 18½ at time of offending – armed with a firearm on six occasions – whether aggregate sentence manifestly excessive – leave to appeal granted but appeal dismissed – ELSAJ – four charges of armed robbery and aggravated armed robbery and one charge of robbery in company with wounding – whether totality principle observed – whether sentence imposed manifestly excessive – whether sentencing judge appropriate took into account features which increased the seriousness of the offending – whether adequate weight given to the finding of special circumstances – whether parity principle observed – leave to appeal granted but appeal dismissed.
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) – s 6
Crimes Act 1900 (NSW) – ss 97(2), 98
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 3A, 21A
Cases Cited: Abbas and Ors v R [2013] NSWCCA 115; 231 A Crim R 413
Alvi v R [2014] NSWCCA 191
Anaki v R [2006] NSWCCA 414
Bobbin v R [2016] NSWCCA 38
Bland v R [2014] NSWCCA 82; 241 A Crim R 51
Bullock v R [2016] NSWCCA 131
Cavanagh v R [2009] NSWCCA 174
DB v R [2007] NSWCCA 27
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
England v R; Phanith v R [2009] NSWCCA 274
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
JM v R [2014] NSWCCA 297
Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
Jodeh v R [2011] NSWCCA 194
Johnson v R; Moody v R [2010] NSWCCA 124
Johnson v The Queen [2004] HCA 15; 78 ALJR 616
Khawaja v R [2014] NSWCCA 80
Lam v R [2014] NSWCCA 50
Loader v R; Dunn v R [2013] NSWCCA 215
Makarian v The Queen [2005] HCA 25; 228 CLR 357
McCarthy v R [2011] NSWCCA 64
McIvor v R [2010] NSWCCA 7
Natoli v R [2009] NSWCCA 36
Ngati v R [2013] NSWCCA 203
Pannowitz v R [2016] NSWCCA 13
Qing An v R [2007] NSW CCA 53
Rangihuna v R [2015] NSWCCA 48
R v Antecki [2001] NSWCCA 312
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Harris [2007] NSWCCA 130; 171 A Crim R 267
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Henry [2007] NSWCCA 90
R v Itamua [2000] NSWCCA 502
R v MAK; R v MSK [2006] NSWCCA 381
R v Morgan [2014] NSWCCA 284
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Spiteri [1999] NSWCCA 3
Regina v Cramp [2004] NSWCCA 264
Regina v Wheeler [2000] NSWCCA 34
Sabongi v R [2015] NSWCCA 25
Tobar v R; R v JAN [2004] NSWCCA 391;150 A Crim 104
Zuhaib Shahzad v R [2016] NSWCCA 94
Category:Principal judgment
Parties: Omar Zreika – Applicant
Mohamed Elsaj – Applicant
Regina – Respondent Crown
Representation:

Counsel:
W Terracini SC/Ms M Curry – Applicant Omar Zreika
D Randle – Applicant Mohamed Elsaj
Ms B K Baker – Respondent Crown

  Solicitors:
Hallak Lawyers – Applicant Omar Zreika
P Murphy – Applicant Mohamed Elsaj
Solicitor for Public Prosecutions – Respondent Crown
File Number(s):2014/1942;2014/2186;2014/60523
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
3 July 2015
Before:
Culver DCJ
File Number(s):
2014/1942;
2014/2186;
2014/60523

Judgment

  1. HOEBEN CJ at CL:

Offences and sentences

The applicants Mohamed Elsaj (Elsaj) and Omar Zreika (Zreika) each seek leave to appeal against the sentence imposed by her Honour Judge Culver on 3 July 2015.

  1. The applicants pleaded guilty to a number of armed robbery and aggravated armed robbery charges which involved a group of co-offenders robbing service stations. Similar charges were taken into account on several Forms 1. Her Honour sentenced Elsaj to an aggregate sentence with a non-parole period of 10 years and 6 months, with an additional term of 5 years, commencing 3 January 2014. Her Honour sentenced Zreika to an aggregate sentence with a non-parole period of 11 years and 6 months and an additional term of 5 years, commencing 3 January 2014.

  2. The dates of the offences, and the indicative sentences in relation to them, were as follows:

Incident 1

Robbery in company with wounding on 3 October 2013, contrary to s 98 of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 25 years with a standard non-parole period of 7 years.

Elsaj and two unidentified co-offenders – indicative sentence of 7 years and 6 months with a non-parole period of 5 years (taking into account the Form 1 relating to Incident 4).

Incident 2

Aggravated armed robbery with dangerous weapon (long barrelled rifle) on 19 November 2013, contrary to s 97(2) for which the maximum penalty is imprisonment for 25 years).

Zreika and two unidentified males – indicative sentence of 6 years and 6 months (taking into account Incident 3 on a Form 1).

Incident 3

Aggravated armed robbery with dangerous weapon (long barrelled rifle) on 2 December 2013, contrary to s 97(2) for which the maximum penalty is imprisonment for 25 years.

Zreika and two unidentified males – (taken into account for Incident 2.

Incident 4

Assault with intent to rob while armed with a dangerous weapon (long barrelled rifle) on 10 December 2013 (7-Eleven Service Station at Lansvale) contrary to s 97(2) for which the maximum penalty is imprisonment for 25 years.

Elsaj, Zreika and unidentified male.

Zreika – indicative sentence of 6 years and 9 months (taking into account Incident 5 on a Form 1).

Elsaj (taken into account for Incident 1).

Incident 5

Aggravated armed robbery with a dangerous weapon (long barrelled firearm) on 10 December 2013 (BP Service Station at Lansvale) contrary to s 97(2) for which the maximum penalty is imprisonment for 25 years.

Elsaj, Zreika, OK and unidentified male.

Zreika – (taken into account for Incident 4).

Elsaj – indicative sentence of 5 years and 9 months (taking into account Incident 6 on a Form 1).

Incident 6

Aggravated armed robbery with a dangerous weapon (long barrelled firearm) on 10 December 2013 (United Service Station at Yagoona) contrary to s 97(2) for which the maximum penalty is imprisonment for 25 years.

Elsaj, Zreika and two unidentified males.

Zreika (taken into account for Incident 7).

Elsaj (taken into account for Incident 5).

Incident 7

Aggravated armed robbery with a dangerous weapon (long barrelled firearm) on 17 December 2013 contrary to s 97(2) for which the maximum penalty is imprisonment for 25 years.

Elsaj, Zreika, OK and an unidentified male.

Zreika – indicative sentence of 6 years and 6 months (taking into account Incident 6) on a Form 1.

Elsaj – taken into account for Incident 8.

Incident 8

Aggravated armed robbery with a dangerous weapon (long barrelled firearm) on 26 December 2013, contrary to s 97(2) for which the maximum penalty is imprisonment for 25 years.

Elsaj, Zreika, OK and BC.

Zreika – indicative sentence of 5 years and 6 months.

Elsaj – indicative sentence of 5 years and 6 months (taken into account Incident 7 on a Form 1).

Incident 9

Armed robbery on 29 December 2013, contrary to s 97(1) for which the maximum penalty is imprisonment for 20 years.

Zreika, Elsaj and OK.

Zreika – indicative sentence of 4 years.

Elsaj – indicative sentence of 4 years and 3 months.

Incident 10

Armed robbery on 3 January 2014, contrary to s 97(1) for which the maximum penalty is imprisonment for 20 years.

Zreika, Elsaj and AY

Zreika – indicative sentence of 4 years and 3 months.

Elsaj – indicative sentence of 4 years.

  1. Zreika was subject to two s 12 bonds for driving while disqualified. These were revoked and he received an indicative sentence of 7 months for each. Elsaj had been convicted of robbery in company causing wounding, contrary to s 98(1) for which he received a sentence of imprisonment for 35 months with a non-parole period of 16 months commencing 7 September 2010. Normally the parole period would have expired before this offending. However, because of various breaches of parole, Elsaj’s parole was revoked on 4 October 2013 and he was in custody between 5 October 2013 and 5 December 2013, i.e. on the dates that Incidents 2 and 3 occurred.

  2. Zreika seeks leave to appeal against sentence on the following grounds:

Ground 1 – The aggregate sentence imposed was in all the circumstances manifestly excessive.

Ground 2 – The non-parole period imposed was in all the circumstances manifestly excessive.

  1. Elsaj seeks leave to appeal from his sentence on the following grounds:

Ground 1 – The sentencing judge erred by failing to give proper effect to the principle of totality.

Ground 2 – The sentencing exercise miscarried because the applicant has been left with a justifiable sense of grievance in relation to the comparative sentences imposed on his co-offenders.

Ground 3 – The sentencing judge failed to properly consider and make findings in relation to key sentencing considerations, including the applicant’s prospects of rehabilitation, his youth, the objective seriousness of each offence and the impact of Form 1 matters on charges for which sentence was imposed.

Ground 4 – The non-parole period imposed did not involve a sufficient departure from the statutory ratio as to properly reflect the finding of special circumstances.

Ground 5 – The sentence imposed was manifestly excessive.

FACTUAL BACKGROUND

  1. Incident 1 - On 3 October 2013 at approximately 4.25am the victim was working inside the 7-Eleven at Guildford. No-one else was present in the store. Two offenders ran into the service station. Elsaj was armed with an aluminium baseball bat with a black and orange handle and a balaclava covered his face. A second male was armed with a large machete and a balaclava covered his face. Both checked the service station to ensure no one else was in there.

  2. The victim opened the till where the cash tray contained approximately $250. It was removed and taken to a car outside by the second offender who then returned. A further offender, unarmed, entered the shop. One of the offenders demanded that the safe be opened, which the victim could not do because he did not have a key. Elsaj joined that offender holding the victim behind the counter, whilst both offenders held their weapons above his head. The victim was pushed into a room by the two offenders, at which time Elsaj grabbed another tray of money, containing about $200, and said, “Where is more money” to which the victim pointed to a money box. Elsaj asked the victim if he would call the police. The victim replied no. Elsaj then swung the baseball bat and hit the victim on the left side of his face, knocking him to the ground. All three offenders fled in the car. The victim got up and activated the silent alarm to alert police. He was bleeding heavily from the head and suffering dizziness and had difficulty standing. He was taken to hospital and suffered a one centimetre laceration over the left frontal region of his head which required stitches. Approximately $450 was stolen. None of the money has been recovered. The robbery was captured by closed circuit TV (CCTV).

  3. Incident 2 - At approximately 12.30am on 19 November 2013 the victim was working alone at the Westside Petroleum Service Station at Guilford. No-one else was in the store. Three men arrived in a car previously stolen on 17 November 2013. The first male, dressed in a hooded jumper with his face and hands covered by items of clothing, was armed with an aluminium baseball bat with a black and orange handle. The second male, Zreika, was dressed similarly and was armed with a long barrelled rifle with a wooden stock. The third male was similarly dressed and armed with a long needle.

  4. The victim saw the men and hit the silent alarm and then placed his hands above his head. Zreika held the gun at the victim’s upper torso and told him to sit in the corner. Zreika and OK remained near him holding their weapons. Zreika told the victim to go and open the till otherwise he would be shot. The victim opened the till. The third male grabbed the money, approximately $1000, and cigarette packets and the three men ran from the store into the car and left. $1,000 and cigarettes were stolen. None of the money nor the cigarettes have been recovered by police. On 26 November 2013 the stolen car used in the robbery was recovered by police. It was burned out.

  5. Incident 3 - At approximately 4am on 2 December 2013 the victim was working alone at the BP Service Station at Yagoona. There was no-one else present in the store. Three males entered. Zreika was wearing a hooded jumper with the hood pulled up, a t-shirt covering his face and gloves. He was armed with a long barrelled rifle with a wooden stock. The second male, OK, was wearing a hooded jumper with the hood pulled up, a baseball cap, gloves and a top covering his face. He was armed with an aluminium baseball bat with a black and orange handle and red decals. The third male was wearing similar clothing as the other two males but was unarmed.

  6. Zreika pointed the rifle at the victim and threatened to shoot him. He demanded that the victim open the security door into the counter area. The victim opened the door and then opened the till. Zreika told the victim he would not be hurt if he told them that all the money was there. The victim indicated this was all the money. After searching for more money, the three men grabbed the cash which was approximately $435 and a number of cigarette packets valued at $1,010 and left the counter area. As they were leaving one of the males said, “Where is the bag; where is bag?” One of the men jumped over the counter to get something before leaving. A witness entered the store to check on the welfare of the victim and the police were called. CCTV captured the incident. The items stolen were not recovered by the police.

  7. Incident 4 - On 10 December 2013 the victim was working alone at the 7-Eleven Service Station in Lansvale. At about 1.08am, he heard a buzzer from the front door indicating someone wanted to enter. No-one else was present in the store. The victim looked at the security cameras and saw two men knocking on the door. The first male, Elsaj, was armed with an aluminium baseball bat with a black and orange handle and red decals. The victim then heard tapping on the window to the left side of him at the counter. Zreika was carrying a long barrelled rifle and was wearing a hooded jumper with the hood pulled up and a scarf covering his face. Zreika held the firearm up at the glass and pointed it at the victim’s head. The victim refused to open the door and fled from the counter area. He pushed a silent alarm to notify police. Elsaj and Zreika then left the location.

  8. Incident 5 - On 10 December 2013, the victim was working alone at the BP Service Station in Lansvale. At 1.15am he was cleaning in the forecourt area outside the service station. He noticed four men all wearing hooded jumpers with the hoods pulled up and face coverings run into the service station. The first male, Zreika, was carrying a long barrelled firearm. The second male, OK, was armed with an aluminium baseball bat with a black and orange handle and red decals. The third male was Elsaj and the fourth male was unknown. Neither were carrying weapons. Zreika held the rifle at the victim’s head and said, “Put your hands up,” with which the victim complied. The four men then pushed the victim into the store and the victim was asked to open the manager’s office.

  9. The victim did not have the key and Zreika grabbed him by the collar and held the gun to him. OK, Elsaj and the unknown male took cigarettes to the value of $10,000 and money ($600) from the till which they emptied into two black garbage bags they had brought with them. The victim was asked to open the safe, but he was not able to do so. The four men left in a red car. Zreika told the victim to stay outside the service station so he could not call police. The victim pressed the silent alarm. CCTV captured the incident. None of the items were recovered by police.

  10. Incident 6 - On 10 December 2013, the victim was working alone at the United Service Station at Yagoona. At approximately 2.21am, Elsaj approached the locked front doors of the service station. He did not have his face concealed. He purchased a drink and had a conversation with the victim. At approximately 2.38am, Elsaj again approached the locked front doors which the victim unlocked, allowing Elsaj to walk in. He was followed by three other males who had their faces covered. Elsaj stood to one side and the three men ran into the store past him towards the counter whilst yelling at the victim. Elsaj left the store.

  11. One of the males, Zreika, was armed with a long barrelled firearm and was wearing a hooded jumper with the hood pulled up. His hands were covered and he had a covering over his face. The second male, OK, was armed with an aluminium baseball bat with a black and orange handle and red decals. He was dressed in similar attire to Zreika. The third male was wearing similar clothing. The three men demanded that the victim give them the money. The victim handed over the full till containing approximately $400. The three men demanded more money. The victim told them there was no more. The three men then demanded cigarettes. The victim opened the cigarette cabinet and handed over ten to twelve packs. Each pack was worth about $25. The victim called the police. At no stage did Elsaj report the robbery to the police. CCTV captured the incident and a statement was later provided by the mother of Elsaj, who identified her son in the CCTV still images from the service station.

  12. Incident 7 - On 17 December 2013, the victim was working at the United Petrol Station at Lidcombe. The door was locked at the time. At approximately 3.29am, OK approached the locked door. He did not have his face concealed. He walked around the store but did not purchase any items. At approximately 3.31am, three males with their faces concealed approached the store and entered the now unlocked door. An unknown male was carrying an aluminium baseball bat with a red decal shaft. The second male, Zreika, was armed with a long barrelled firearm. The third male, Elsaj, was unarmed. Elsaj, Zreika and the unknown male demanded that OK lie on the ground. This was a staged attempt to conceal OK’s involvement in the robbery. Elsaj, Zreika and the unknown male threatened the victim by pushing the firearm towards his face. They forced him to open the till. Elsaj, Zreika and the unknown male stole approximately $300 worth of cigarettes and approximately $900 cash. None of this property has been recovered by the police. Elsaj, Zreika and the unknown male forced the victim to the ground before leaving the store. OK got off the ground and casually walked out of the store. At no stage did OK report a robbery to police. The incident was captured on CCTV.

  13. Incident 8 - At about 8.30am on 26 December 2013, the victim was working at the 7-Eleven Service Station in Lansvale. A regular customer approached the counter and advised him that there were three men wearing masks behind the building. The victim locked the front door. At about 8.42am, the young person (BC), approached the locked door, while holding a set of car keys. The victim unlocked the door to allow her entry. Within seconds of her entering, three men with their faces covered ran into the shop towards the counter, pushing BC out of the way.

  14. BC then ran from the store. The first male, Zreika, was armed with a long-barrelled rifle, the second male, OK, was unarmed. The third male, Elsaj, was unarmed. The victim pressed the duress alarm upon seeing the men enter the store and fled into the toilets and locked the door. In the bathroom, the victim pressed the silent alarm and phoned police. The three men jumped the counter and stole $400 from the cash register and approximately $3,000 worth of cigarettes, none of which have been recovered by the police. The front glass doors of the service station had become locked due to the victim pressing the duress alarm, trapping the three men inside. The victim could hear the men calling out to him to open the door. Zreika attempted to smash the doors by striking them with the butt of the rifle, causing the rifle butt to break. Zreika grabbed a fire extinguisher and threw it through a glass window causing it to shatter. The men fled and were driven away by BC in Elsaj’s mother’s car. The incident was captured on CCTV.

  1. Incident 9 - At approximately 4.45am on 29 December 2013, the victim was working at the BP Service in Potts Hill. Another male (victim two) was also working in the store at this time. Zreika approached the store whilst unarmed and without his face concealed. The victim had a conversation with Zreika, who then waved to someone outside of the building, and two males entered the service station. The first male, OK, was armed with a screwdriver and wearing a hooded jumper with the hood pulled up. The second male, Elsaj, was armed with an aluminium baseball bat with a black and orange handle and red decal shaft and he had his face covered by a shirt. Elsaj chased victim two into the kitchen area and yelled “Come back here I’m going to kill you”. Victim two ran out of the store and hid underneath a nearby vehicle.

  2. Whilst this was occurring Elsaj and OK jumped through security wires over the counter, opened the cash register and stole $400. This has not been recovered by police. The men yelled at the victim, “Get him, get him”. OK left the screwdriver on the counter and the men fled the store. The victim activated the duress alarm and ran outside and hid until police arrived. The incident was captured on CCTV.

  3. Incident 10 - At about 2.55am on 3 January 2014, the victim was working alone at 7-Eleven in Granville when he walked outside the store to put the rubbish out. He heard someone call out, “Hey” and saw three males walking towards him. Then two of the males ran towards him and the other male ran to the door of the shop. The first male, Zreika, placed the victim in a headlock whilst holding an aluminium baseball bat with a black and orange handle and red decal shaft. His face was covered and he was wearing gloves. The second male, Elsaj, was wearing a hooded jumper with the hood pulled up, gloves and a face covering. The third person, the young person (YA) had a balaclava covering his face.

  4. One of the males demanded money from the victim, saying, “Give us the money, we won’t hurt you if you do, I know you are a Sikh - you are a good man, so just give us the money and we won’t hurt you”. Zreika pushed the victim into the store whilst accompanied by YA and Elsaj. They demanded that the victim enter the security code to gain access behind the counter. All three males then walked past the till to the rear office. One of the males demanded money and the victim gave them a bag of change containing coins and five dollar and ten dollar notes. Elsaj took the victim to the till and demanded he open it. The men took all of the cash and then ran from the store. The total amount stolen was approximately $3000. That money has not been recovered by police.

  5. The victim pressed the silent alarm and dialled triple 0. The incident was captured on CCTV. The vehicle in which the men fled was later recovered burned out in Berala, a short distance from the home of Elsaj. A taxi was ordered to attend the home of Elsaj in Berala under the name of Joe. The taxi was booked to travel to Auburn. CCTV images from the taxi confirmed that Elsaj and YA got into the taxi at 4.59am. The taxi travelled to Regents Park to OK’s home. OK got into the taxi and the taxi then went to Myall Street Auburn, the home of Zreika, where the men got out and met up to split the money and proceeds between them. It was here that the men were arrested by police.

  6. The Agreed Facts set out telephone intercept material. Elsaj was talking to the young person, BC, to Zreika and to OK. It is tolerably clear from the contents of the telephone intercept material that Elsaj played a leading role in the robbery offences.

  7. At 7.35am on Friday 3 January 2014, Elsaj was arrested at his home in Auburn. When a search warrant was executed at his home, police discovered a number of items consistent with clothing and items seen in the CCTV footage from the robberies, including an aluminium baseball bat with a black and orange handle and a red decal shaft . Police located an Armaguard one dollar coin wrapper which was consistent with the wrapper from the coins taken from the 7-Eleven at Granville on 3 January 2014.

  8. Elsaj’s mother confirmed in a statement to police that on 26 December 2013, she realised that her car had been taken without her permission. She also confirmed a number of items of clothes worn by the offenders in the CCTV stills was consistent with clothing owned or worn by her son. Elsaj took part in an ERISP in which he denied his involvement in the robberies. He was then charged.

  9. On 3 January 2014 Zreika, was arrested and taken to Bankstown Police Station. A search warrant was executed on his home where police located a number of items consistent with clothing and items seen in the CCTV footage of the robberies. There were money bags consistent with the bags taken from the 7-Eleven service station in Granville on 3 January 2014. Zreika participated in an ERISP in which he denied involvement in the offences. He was then charged.

PROCEEDINGS ON SENTENCE

  1. Her Honour assessed the objective seriousness of the offending. As a start point she noted the important guideposts of the maximum sentence and in the case of the s 98 offence, the standard non-parole period.

  2. In relation to each incident, her Honour noted the following common aggravating features – the victims in every case were vulnerable. Except on one occasion, there were three or more offenders. One of the offenders was always armed and on most occasions a firearm was involved. The amounts stolen, while not at the very high end, were not insubstantial. On a number of occasions the victims were directly threatened with the firearm being pointed at them. On occasions there were verbal threats and in Incident 1, the victim was struck forcefully to the head by the baseball bat.

  3. Her Honour regarded Incident 1 as particularly serious in that Elsaj was both armed with a baseball bat and in company and the victim was struck. There was a second weapon, i.e. a machete and threats were made to kill the victim if money were not produced. Her Honour also took into account that the time during which the offence occurred was not long and that only one blow was actually struck.

  4. Her Honour had regard to the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. Her Honour noted the observation by Simpson J in Tobar v R; R v JAN [2004] NSWCCA 391;150 A Crim 104 at [55] to the effect that the introduction of the standard non-parole period for an offence under s 98 must be taken to have excluded, or at least significantly reduced, the application of the guideline judgment. Similarly, her Honour noted that in R v Henry [2007] NSWCCA 90 Howie J said that the guideline judgment had a reduced role to play in determining a sentence for a s 98 offence, even without the standard non-parole provisions. That was because there was a higher maximum penalty for a s 98 offence. Those observations, of course, apply equally to offences contrary to s 97(2) of the Crimes Act which had a higher maximum penalty than that for an offence contrary to s 97(1) which was the offence under consideration in the guideline judgment.

  5. By reference to that approach, her Honour concluded that:

“… the balance of features of objective gravity causes this case to fall within the mid-range level of seriousness.” (Sentence judgment, 30.3)

  1. Her Honour noted the observation by Spigelman CJ at [99] in the guideline judgment that a s 97(1) offence was not simply a crime against property, but was a crime against persons, and a relevant consideration was the fear engendered in the victims by the offender, together with the continued adverse effects on victims. This rendered the offence a serious one which required condign punishment. By reference to the specific categories in the guideline judgment, her Honour concluded that insofar as the s 97(1) offences were concerned, they fell fairly and squarely within those considerations so that a head sentence of between 4 and 5 years would be appropriate. In reaching that conclusion her Honour took into account aggravating and mitigating factors and was careful not to double count such features.

  2. By reference to the guideline judgment her Honour noted that the offenders were young. Elsaj and Zreika both had criminal histories of some significance, although that of Elsaj was more serious, including as it did robbery with wounding. The use of a weapon such as a rifle made the offence more serious, even though it was not known whether the rifle was loaded. Her Honour accepted that there was only a limited degree of planning. Her Honour noted that there was a real threat of violence, although the violence actually perpetrated was limited. By way of mitigation her Honour noted that the pleas of guilty had been at the earliest point in time.

  3. Her Honour noted that despite the fact that Zreika had on most occasions held the firearm, all participants in the robbery were involved in a joint criminal enterprise and shared that responsibility.

  4. When comparing the culpability of Zreika and Elsaj, her Honour recorded the following features:

“MR ZREIKA

•   For incidents 2,3,4,5,6,7 and 8, Mr Zreika was the person who was armed with the firearm.

•   For incidents 2 and 3, Mr Zreika threatened to shoot the victim.

•   For incidents 2,4,5 and 7, Mr Zreika held or pointed the rifle to the victim.

MR ELSAJ

•   For incident 1, it was Mr Elsaj who wounded the victim.

•   For incidents 4 & 9, Mr Elsaj was armed with a baseball bat.

•   For incidents 5,6,7,8 and 10, Mr Elsaj was unarmed.

•   Before incident 8, the telephone intercept material revealed Mr Elsaj organising a car, the timing and the signal to get ready.

•   For incident 9, Mr Elsaj threatened to kill a victim.

•   For incident 6, Mr Elsaj acted with pre-meditation in having [a] lengthy conversation with the victim to build up his trust to open the door later.” (Sentence judgment pp 34- 35)

  1. Her Honour concluded that of the offenders, Zreika, generally had the more senior role in that he had the rifle and issued most of the threats and held the rifle towards the victims. Both Zreika and Elsaj had serious criminal histories but that of Elsaj was the more serious.

  2. Her Honour reviewed the subjective circumstances of the offenders. In relation to Zreika, her Honour noted his young age of 18.5 at the time of the offending, that he had a supportive family, that he attended school to year 10, that he had little employment history, that he had been abusing drugs and said that he committed the offences to fund his drug habit. He was reported by the psychologist, Mr Borkowski, as having expressed remorse and empathy for the victims and he was assessed at medium risk of re-offending. Mr Borkowski assessed Zreika as having some mental difficulties, but these were almost entirely related to his abuse of drugs. Her Honour concluded:

“The evidence as to mental health is not of a character that allows any mitigation of significance to the criminality.”

  1. When dealing with Elsaj’s subjective circumstances, her Honour found that he also was very young, i.e. 18.5 years old at the time of the offending, his schooling was disrupted and he was expelled for fighting with other students. He said that he committed the offences to obtain money to buy drugs. He was reported by Mr Borkowski as having taken responsibility for his actions and said that he felt sorry for the victims. He was assessed at medium to high risk of re-offending, given his rapid return to criminal behaviour so soon after his release from custody.

  2. As with Zreika, Mr Borkowski assessed Elsaj as having some mental difficulties but these were essentially due to his abuse of illegal drugs. When his father left the family, his drug use had increased.

  3. Her Honour took into account the Forms 1. In the case of Zreika, he was sentenced for six serious offences with three matters to be taken into account on a Form 1. In the case of Elsaj, he was sentenced for five serious offences with three matters to be taken into account on a Form 1. Her Honour noted that for those offences which took into account a Form 1, greater weight should be given to the need for personal deterrence and the community’s entitlement to extract retribution. Her Honour noted that the result of taking those matters into account might be a longer sentence.

  4. Her Honour was conscious of the age of Zreika and Elsaj and referred to the provisions of s 6 Children (Criminal Proceedings) Act 1987 (NSW). Her Honour specifically noted that when considering the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) considerations of the applicants’ youth still had to be taken into account.

  5. Having carried out the detailed analysis set out above, her Honour brought the various conflicting considerations together when she said:

“As indicated above, the criminality in these matters is very grave indeed. That seriousness, coupled with prevalence within the community, causes the Court to place importance on the need for general deterrence, despite the youth and mental health conditions of the respective offenders. Such robberies, targeting vulnerable victims, namely service station workers in the late evening and early morning hours, must be deterred. The volatility and risk of violence, especially where weapons such as a rifle is present, creates an unacceptable risk that must be minimised through deterrence. There is also a need for specific deterrence, especially with regard to both Mr Zreika and Mr Elsaj who had each been dealt with at Court for similar offending.

The sentencing exercise must also be balanced by a need for rehabilitation and an emphasis on achieving that result, particularly given the age of the offenders.” (Sentence judgment 48.2)

  1. Her Honour had specific regard to special circumstances and said:

“19.    SPECIAL CIRCUMSTANCES

For each of the offenders, special circumstances are found to alter the normal statutory ratio between the non-parole and parole periods.

For each offender, the special circumstances are:

(a)    his youth;

(b)    his mental health and drug abuse issues receiving ongoing rehabilitation; and

(c)    the totality of criminality and the need for some degree of accumulation between the sentences

Whilst the evidence of Mr Zreika’s and Mr Elsaj’s mental conditions did not amount to a mitigation of the criminality, it is significant in finding special circumstances.” (Sentence judgment 48.6)

  1. On the issue of totality her Honour said:

“The High Court in Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [18] state:

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms:

“… when a number of offences are being dealt with and specific punishment in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong’; when …. cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all offences”.”

  1. Her Honour specifically noted that one of the purposes of the totality principle was to avoid imposing a ‘crushing sentence’. Her Honour relied upon the following quotation from R v MAK; R v MSK [2006] NSWCCA 381 at [17] where the Court said:

“... an extremely long sentence may be ‘crushing’ upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform.”

  1. In summary, her Honour said:

“It is clear from such decisions as the High Court in Pearce and the New South Wales Court of Criminal Appeal in Cayhardi that, when sentencing an offender for multiple sentences, the Court must impose sentences that are appropriate for each individual offence, but also ensure that the totality of criminal offending is appropriately reflected in the overall sentence. That is often achieved through a consideration of the extent to which the sentences ought be concurrent and cumulative. [See also: R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 at 67].

In the case of each offender, there are discrete offences with separate victims. Yet the context in which the offences occurred from October 2013 for Mr Elsaj and November 2013 for Mr Zreika and OK until 3 January 2013 [2014 – sic] remained the same for the offenders. That is, the offences occurred over a matter of weeks in which each offender reported a context of drug abuse. The three offences of 10 December 2013 occurred within approximately 90 minutes.

It is therefore appropriate that there be some concurrency between the offences. Cayhardi’s case informs that the extent of concurrency or accumulation can be considered by assessing the degree by which the criminality in one sentence encapsulates the criminality in another.” (Sentence judgment 49.7 – 50.1)

  1. THE ZREIKA APPEAL

Ground 1 – The aggregate sentence imposed was in all the circumstances manifestly excessive.

Ground 2 – The non-parole period imposed was in all the circumstances manifestly excessive.

  1. Zreika submitted that the aggregate sentence of 16 years and 6 months with a non-parole period of 11 years and 6 months was excessive. While acknowledging that none of the individual sentences could reasonably be criticised, he submitted that the sentence arrived at through the process of partial accumulation produced a total sentence which was not warranted.

  2. Zreika accepted that:

“To successfully challenge the aggregate sentence on the ground that it is manifestly excessive, it is necessary to satisfy the Court that the aggregate sentence imposed was unreasonable or plainly unjust having regard to the principle that there is no single “correct” sentence and that judges at first instance should be allowed as much flexibility in sentencing as is consistent with the application of settled sentencing principles and consistency in sentencing approach.” (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [325] – [326], Makarian v The Queen [2005] HCA 25; 228 CLR 357 at [25] and Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58] – [59]).”

  1. Applying those principles, Zreika submitted that although no specific error could be identified in her Honour’s approach, there must have been some misapplication of principle given that the aggregate sentence ultimately imposed was excessive and in a real sense “crushing”. Zreika submitted that a matter which the Court should take into account was that as a period of incarceration increased, the nature of the increase is not purely linear. In that regard, Zreika relied upon R v MAK; R v MSK where the Court said:

“16   The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. …

17   [One] matter that is considered under the totality principle is the proposition that an extremely long total sentence may be ‘crushing’ upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. …”

  1. Zreika relied upon an observation of RS Hulme J to similar effect in R v Spiteri [1999] NSWCCA 3 at [39]:

“39   I take the view that actual imprisonment for, say 10 years is more than twice as severe as one of imprisonment for 5 years. Having regard to the sorts of terms under consideration for drug dealing a sentence of one of the longer periods is likely to have an impact on an offender’s life in terms of wife, children, job prospects and the like from which he may well never recover and these sorts of considerations also have to be borne in mind. …”

  1. Zreika submitted that although the offences for which he was sentenced were discrete and each involved its own separate criminality and its own separate victim, it was relevant that the offences occurred over a matter of weeks in a context of drug abuse so that there should be greater concurrency in the aggregate sentence imposed.

  2. Zreika relied upon statistics compiled by the Judicial Commission of NSW. While acknowledging that sentencing statistics are a blunt tool for assessing the adequacy or otherwise of a sentence, he submitted that current statistics showed that of the sentences imposed on all offenders convicted of such offences, the median sentence was 6 years with 12, 14 and 18 years being at the highest end. These statistics included offenders who had committed more than one s 97(2) offence and offenders who had Form 1 matters taken into account.

  3. The Court’s attention was drawn to 22 cases selected by the applicant which were said to be comparable and which were said to set out in general terms a range of sentences for persons who had been sentenced for multiple armed robberies.

  4. The Court’s attention was particularly drawn to three cases. McCarthy v R [2011] NSWCCA 64 involved five robbery with dangerous weapon offences (three in company), three break enter and steal offences and one attempted robbery with a dangerous weapon in company. There were a number of matters on a Form 1. In an appeal by the offender, the CCA decreased the head sentence to 7 years and 6 months with a non-parole period of 5 years and 6 months. The offender was aged 40 with a lengthy criminal record.

  5. In Qing An v R [2007] NSWCCA 53 eight counts of armed robbery in company were committed by an offender aged 28 with a significant criminal record. The Court of Criminal Appeal reduced the head sentence to 10 years and 6 months with a non-parole period of 7 years and 6 months.

  6. In DB v R [2007] NSWCCA 27 the offender was aged 16 with a significant criminal record and was convicted of three robberies with a dangerous weapon. There were 11 offences on a Form 1. The Court of Criminal Appeal reduced the head sentence to 10 years with a non-parole period of 6 years.

Consideration

  1. It is important to note that no challenge was made by Zreika to the indicative sentences. The challenge is directed solely to the aggregate sentence. The implicit submission is that there was excessive partial accumulation of the indicative sentences resulting in a manifestly excessive aggregate sentence. In that regard, the observation of R A Hulme J in JM v R [2014] NSWCCA 297 is apposite. There his Honour set out the principles relevant to appellate review of aggregate sentences at [40]. The principal focus in the determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved.

  2. It is trite to observe that the accumulation of sentences involves an exercise of discretion. No complaint is made that the sentencing judge incorrectly applied any matter of principle. This poses a difficult task for Zreika, particularly because her Honour’s analysis of the facts and exposition of principle were comprehensive, covering some 55 pages. It could not be said that any relevant consideration was left out.

  3. It is clear from the indicative sentences that there was a substantial degree of concurrency in the aggregate sentence imposed. The total of the indicative sentences for Zreika was over 34 years. The aggregate head sentence of 16 years and 6 months represents an average of less than 3 years per charge and less than 2 years per incident (not including the revoked suspended sentences). The non-parole period of 11 years and 6 months represents an average of less than 2 years per charge and a little over 1 year per incident.

  4. A consideration of the extent of accumulation needs to take into account the sheer number of offences with which Zreika was involved (six charges and nine incidents). There was no overlap in the elements of any of the offences and there was the involvement of different victims at different places on different occasions. It was significant that “a separate decision must have been made to go out on each of the nights and days of the offences and commit offences of some such kind as were committed” – Johnson v R; Moody v R [2010] NSWCCA 124 at [82] per Barr AJ.

  5. It needs to be remembered that it is necessary for Zreika to establish that the aggregate head sentence of 16 years and 6 months with a non-parole period of 11 years and 6 months for six charges relating to nine various serious offences, each carrying a maximum penalty of 20 or 25 years imprisonment, is unreasonable or plainly unjust. Zreika was involved in nine incidents. He was armed with a long barrelled firearm on seven occasions and in some of the offences, he pointed it at the victim’s chest or head and/or threatened to shoot the victim, which must have been terrifying for each victim. There can be no doubt that Zreika’s offending was very serious and that condign punishment was required. This is so when his subjective case was not particularly impressive.

  6. The most powerful consideration in favour of Zreika is his age. He is now aged 20 and at the time of the offending was aged 18½. This gives rise to concepts of maturity and the extent to which a person of those years should be held to be fully responsible for offences of this kind. On the other hand, these were not isolated offences. Zreika had committed similar offences in the past and had been sentenced. He would have been well aware of the consequences of committing such offences as an adult. In any event, her Honour took into account his youth and identified the tension between that and the seriousness of his offending. Her Honour’s resolution of that tension in the sentence which she imposed was a quintessential exercise of discretion on her part and this Court, absent error, should be slow to intervene.

  7. Little assistance is given to the Court by the statistics and this was frankly conceded by Zreika. Moreover an important guideline for sentencing judges is the maximum penalty fixed by Parliament, which represents the upper end of the range of sentences, not the range as disclosed in the statistics. This is particularly so where the number of offences per offender and each offender’s subjective features are not known. Treating the statistical maximum as the legal maximum has the self-fulfilling effect of reducing the median sentence, contrary to the maximum penalty fixed by the legislature. Finally, statistics show a range of sentences actually imposed in the past, not necessarily the correctness of that range, nor its applicability to a given case. As was made clear in Hili v The Queen; Jones v The Queen what is sought with respect to consistency of sentencing is the consistent application of relevant principle, rather than numerical or mathematical equivalence.

  8. With respect to the 22 “comparable cases” to which the Court was referred, far from indicating that this sentence is outside the range, those cases in general terms support the sentence imposed. When the particular facts of some of these 22 cases are examined, they provide a clear explanation for why the sentence imposed might be below and significantly below that imposed in this case.

  9. The number of offences committed by Zreika renders comparison with other cases very difficult. Many of the cases included in the 22 placed before the Court involved fewer robberies than were committed by Zreika. Given the discretion that attaches to questions of totality, it is difficult to extrapolate from these sentences to the present case. A further difficulty is that a number of the cases concerned offences under s 97(1) rather than s 97(2) and s 98 with offenders who had different subjective circumstances to Zreika. Finally, a sentence may be reduced by parity considerations which are not present in other cases.

  10. For example, Alvi v R [2014] NSWCCA 191 appears superficially similar to the present case in that it concerned an offender who committed armed robberies of service stations and who had pleaded guilty at the first opportunity. The penalty that was imposed in that case (9 years head sentence with a 5 year non-parole period) is explicable by reason of the facts in that case. When dismissing the appeal, the Court of Criminal Appeal observed that the non-parole period was “particularly generous”. Alvi was only charged with s 97(1) offences. Alvi was involved in six robberies whereas Zreika was involved in nine. Alvi had no criminal record whereas Zreika had prior Children’s Court convictions including one for armed robbery. Zreika was serving a suspended sentence at the time of his offending. Alvi committed his offences alone and did not use physical force. Alvi’s custody was rendered more onerous by his family being overseas.

  11. McCarthy v R involved seven robberies and three offences of break enter and steal. Some offences did not involve co-offenders. There was, however, a voluntary disclosure of criminality which attracted Ellis principles. There was a discount of 50% for assistance to authorities, including giving evidence at five trials. His prior robbery offences occurred many years before the current offending. He was found to have good prospects of rehabilitation and convincing evidence of remorse. One only has to state those additional features for it to be clear that there were significant differences between the offending of McCarthy and that with which the sentencing judge was concerned here.

  12. In Qing An v R only s 97(1) offences were involved. They related to six robberies at brothels. The offences took place over 16 days. In DB v R the offender was a juvenile. In Rangihuna v R [2015] NSWCCA 48 the sentence imposed was 11 years and 3 months with 8 years and 3 months non-parole period. There were three offences of aggravated armed robbery with two other offences on a Form 1. Most of the applicant’s prior offences were 10 or more years before this offending. In Jodeh v R [2011] NSWCCA 194 a sentence of 14 years was imposed with a 9 year non-parole period. There were three offences of aggravated armed robbery and one of malicious infliction of grievous bodily harm. There was one co-offender in two of the offences, no prior convictions and a significant deterioration in his life following a painful motorbike accident when he was aged 17.

  13. That brief analysis of some of the 22 cases put to the Court by the applicant makes it clear how important the difference in the factual background of the offending can be when sentencing. What is clear is that the 22 cases do not provide a range against which the appropriateness and reasonableness of this sentence can be measured.

  14. The ratio of the applicant’s non-parole period to the head sentence is 69.7%. The parole period of 5 years is adequate when regard is had to the special circumstances found by her Honour of youth and non-mitigatory mental health and drug abuse issues receiving ongoing rehabilitation. Finally, the aggregate non-parole period had to reflect the overall criminality involved. For Zreika the overall criminality concerned nine serious incidents in circumstances where he had not been deterred despite previous interventions by the criminal justice system by way of supervised bonds, community service orders, a call up and suspended sentences.

  15. These grounds of appeal have not been made out. I would grant leave to appeal but dismiss the appeal.

THE ELSAJ APPEAL

  1. Because a complaint as to parity accepts that the sentence imposed was otherwise appropriate (England v R; Phanith v R [2009] NSWCCA 274 at [22]; Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 at [251] and Ngati v R [2013] NSWCCA 203 at [69]) appeal ground 2 which raises the issue of parity will be dealt with last.

Ground 1 - The sentencing judge erred by failing to give proper effect to the principle of totality.

Ground 5 – The sentence imposed was manifestly excessive.

  1. These grounds should be dealt with together since the submissions in support raise essentially the same issue, i.e. that insufficient regard was had to the applicant’s youth so that the sentence imposed was crushing and excessive.

  2. To the extent that Elsaj dealt with the issue of totality, he accepted that her Honour had correctly stated the principle and in particular that her Honour had complied with the recommendation in Johnson v The Queen of [taking] “a last look at the total just to see whether it looks wrong”. He accepted that the degree of concurrency and accumulation were matters of discretion for the sentencing judge. Having made those concessions, Elsaj submitted that her Honour failed to have adequate regard to the fact that the offending had occurred during a three month period of drug abuse and that the aggregate sentence was more than 50% of the total of the indicative sentences which was 27 years.

  3. Similar submissions were made in relation to ground 5. In addition, Elsaj relied upon six cases which, although they were factually different, were said to demonstrate that the sentence imposed on the applicant was manifestly excessive. In oral submissions counsel for Elsaj adopted the additional cases relied upon by Zreika to support that proposition. Elsaj submitted that while the seriousness of his conduct was beyond question, the effect of her Honour’s sentence was to eliminate the possibility of him experiencing even the latter years of youth as a member of the community.

Consideration

  1. When dealing with these grounds of appeal, it should be kept in mind that the temporal gap between incident 1 (3 October 2013) and incident 4 (10 December 2013) was explained by Elsaj being in custody as a result of his parole being revoked. That parole related to the earlier offence of robbery with wounding. It also needs to be remembered that the indicative sentences had already been discounted by 25 percent because of the early plea of guilty. Even so, it is apparent from the aggregate sentence that built into it was a considerable degree of concurrency. In setting the aggregate sentence it was necessary for her Honour to approach questions of accumulation and concurrency in conformity with common law principles of totality (R v Morgan [2014] NSWCCA 284 at [50]). Her Honour set out those principles and identified the relevant factors concerning accumulation at 48.9 – 50.1 of the sentence judgment.

  2. Elsaj did not submit that her Honour applied an incorrect principle or took into account some extraneous or irrelevant matter or failed to consider a material factor or that she mistook the facts in determining the appropriate level of accumulation. Rather, he asserted error by reference to the sentence ultimately imposed. His task in demonstrating error in those circumstances is a difficult one (Bobbin v R [2016] NSWCCA 38 at [54]). As was properly conceded on his behalf, it is well established that the extent of accumulation is a discretionary matter for the court at first instance in the exercise of its intuitive synthesis (R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 at [7] (per Simpson J)).

  3. The degree of accumulation of the sentences was well open to her Honour. None of the offences involved overlapping elements. The offences involved discrete incidents with separate victims. Accumulation is required to recognise the harm done to each of the individual victims. Apart from incidents 4, 5 and 6 which were committed on the same day, the remaining incidents occurred over a three month period. It is also not without significance that incidents 4, 5 and 6 were committed by Elsaj within days of being released following the revocation of his parole.

  4. The sheer number of offences committed by him is an important matter when considering accumulation. As Sully J said in Regina v Wheeler [2000] NSWCCA 34 at [37]:

“37   It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour.”

  1. Observations to similar effect were made by Davies J in Pannowitz v R [2016] NSWCCA 13 at [40] where his Honour said:

“40   … a need to ensure public confidence in the administration of criminal justice to avoid the perception that an offender will not be punished more severely for committing multiple offences …”.

(See also Khawaja v R [2014] NSWCCA 80 per RS Hulme AJ at [24] – [25] and R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46]).

  1. Elsaj was involved in 7 of the armed robberies and played a major part in the assault with intent to rob offence. Each carried a maximum penalty of 20 or 25 years imprisonment. All but two of the offences involving him (incidents 9 and 10) carried the higher maximum penalty of 25 years imprisonment. This provides an important sentencing guidepost to which regard had to be had by the sentencing judge. Finally, as her Honour explained in some detail, both specific deterrence and general deterrence had important roles to play in this applicant’s sentence despite his youth.

  2. When considering the cases placed before the Court as somewhat loosely indicating a range, regard should be had to the specific facts of Elsaj’s offending.

Some of the offences involved a long barrelled rifle being pointed at a victim’s chest or head, an obviously terrifying experience for the victim.

Some of the offences involved the application of physical force to the victim, damage to property or a threat to kill by him.

Some of the offences involved significant amounts of money or goods being stolen, none of which has been recovered.

A degree of planning was shown by the use of a balaclava, gloves and the obtaining of the rifle.

Incident 1 involved the actual striking and wounding of the victim by the applicant using a baseball bat.

The telephone intercept material showed that the applicant was responsible for organising some of the offences.

There was a clear modus operandi as shown by the targeting of sole employees late at night and using team work to effect the robbery. In one instance Elsaj gained the trust of the employee first as a ruse for the co-offenders to gain entry later.

  1. The six cases relied upon by the applicant were: McIvor v R [2010] NSWCCA 7; McCarthy v R [2011] NSWCCA 64; R v Itamua [2000] NSWCCA 502; R v Antecki [2001] NSWCCA 312; Natoli v R [2009] NSWCCA 36 and Anaki v R [2006] NSWCCA 414.

  2. When the facts of these cases are examined, each is clearly distinguishable from the circumstances of the applicant’s offending. None of the cases involved a standard non-parole period offence.

  3. McIvor v R involved two offences contrary to s 97(1) and one offence of assault with intent to rob while in company. The weapons were knives. McIvor was aged 25. At first instance he received a head sentence of 15 years with a non-parole period of 9 years and 6 months. This was reduced on appeal to 10 years with a non-parole period of 7 years and 6 months.

  4. The matter was complicated by the revocation of parole for other offending which would have added another year of fulltime custody. In that case concern was expressed at [16] to the effect that sentencing courts had been imposing sentences in the past which were too low for multiple armed robberies and there was specific criticism of the result in R v Antecki. An appeal by McIvor’s co-offender against a head sentence of 14 years with a non-parole of 10 years for the same offending was dismissed (Cavanagh v R [2009] NSWCCA 174).

  1. McCarthy v R has already been discussed in the Zreika appeal.

  2. The sentence in R v Itamua was reduced by the CCA to a head sentence of 17 years with an 8 year non-parole period. The basis for the appeal was Pearce error but no appeal was brought in respect of the majority of concurrent short fixed terms. The applicant was found to have excellent prospects of rehabilitation, had provided assistance, had no prior convictions in Australia and limited prior convictions in New Zealand.

  3. R v Antecki was a decision of a two judge bench. The sentence was reduced to a head sentence of 9 years and 6 months with a non-parole period of 5 years and 6 months. The offences were armed robbery offences contrary to s 97(1). The weapon was a kitchen knife. There was demonstrated contrition; the offender commenced drug use at school following the death of his mother and prospects of rehabilitation were assessed at above average. The case was described as “an unusual case”.

  4. Natoli v R involved offences contrary to s 97(1). There was no co-offender, apart from one offence. Small amounts were stolen from passengers on trains upon the production of a replica pistol. The original sentence was a head sentence of 12 years with a non-parole period of 8 years and 9 months. There was an error in fixing the non-parole period because it failed to take into account that the offender was already serving another sentence. The offender had impaired cognitive capacity. There were reasonable prospects of rehabilitation and the offences were committed within a few days of each other. He had no previous convictions. The Court of Criminal Appeal resentenced the applicant to a head sentence of 10 years with a non-parole period of 6 years and 8 months.

  5. Anaki v R involved two robbery offences and one attempt to rob contrary to s 97(1). There were four offences on a Form 1 of a relatively minor kind, e.g. being carried in a conveyance without the consent of the owner and being armed with intent to commit an indictable offence. The sentence imposed at first instance was a head sentence of 13 years with a non-parole period of 9 years and 6 months. Not only were the offences less serious than those with which we are concerned here, but there was a considerable and unexplained delay between his arrest and custody and the sentence proceedings. The weapon was a sledge hammer which was considered to be less dangerous than a firearm or knife. The sentencing exercise was further complicated by the revocation of the offender’s parole for previous offences and which involved a considerable additional period in continuous custody. The Court of Criminal Appeal reduced the offender’s sentence to a head sentence of 10 years with a non-parole period of 7 years.

  6. As with Zreika, the sentence imposed by her Honour was stern but was well open on the evidence. No patent error has been identified. No latent error has been identified by reference to the sentence itself. On the contrary, the comprehensive analysis of sentencing factors and the application of those factors to the specific facts of the offending support the appropriateness of the sentence. For the reasons briefly stated, the cases to which the Court’s attention was drawn do not create a range or demonstrate a sentencing pattern with which this sentence is inconsistent. The cases to which the Court’s attention was drawn are so fact specific that they provide little, if any, guidance in relation to the sentence imposed on this applicant.

  7. These grounds of appeal have not been made out.

Ground 3 – The sentencing judge failed to properly consider and make findings in relation to key sentencing considerations, including the applicant’s prospects of rehabilitation, his youth, the objective seriousness of each offence and the impact of Form 1 matters on charges for which sentence was imposed.

  1. The applicant submitted that although her Honour identified the issues raised in the ground of appeal, she did not discuss them and did not reach a concluded opinion.

  2. The applicant submitted that when identifying the “features” of each incident which rendered it serious at pp 23 – 27 of the sentencing judgment, her Honour fell into error by treating these matters as aggravating factors pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999. If her Honour was not treating these “features” in this way, the applicant questioned the value of her Honour listing them in the way in which she did. The applicant was critical of some of these “features” and submitted that they were not matters which increased the seriousness of the incidents.

Consideration

  1. While it is true that her Honour did not make specific findings in relation to some of the sentencing considerations identified by the applicant, a fair reading of her remarks made it clear what her Honour’s conclusion was. The approach followed by her Honour was to review the evidence relating to a particular sentencing consideration. Where the evidence was all one way, her Honour accepted it.

  2. The evidence of the psychiatrist was that the applicant’s prospects of rehabilitation were poor. The psychiatrist based this conclusion on the fact that the applicant had involved himself in serious criminality within days of being released from custody. Her Honour accepted this evidence.

  3. Her Honour specifically referred to the applicant’s youth on a number of occasions and took it into account generally by reference to the provisions of s 6 Children (Criminal Proceedings) Act but also specifically in relation to rehabilitation and special circumstances. At sentence judgment p48.2 her Honour specifically balanced the applicant’s youth against the need for specific and general deterrence. While regarding the applicant’s youth as an important consideration, her Honour found that matters of equal importance were deterrence and the objective seriousness of the offending.

  4. By reference to each of the 10 incidents, her Honour set out over five pages those features which made the offences more serious. The features identified by her Honour were self-evidently correct. It is true that in relation to incident 7 her Honour identified the fact that the applicant was unarmed as one of these features. That was clearly a mistake and does not invalidate the other matters to which her Honour referred in relation to that incident, e.g.

OK’s walk to the service station unconcealed.

Three other offenders then walked in.

One offender had a baseball bat.

Zreika had a long barrelled rifle.

The three men demanded that the young person OK lie on the floor.

Zreika pushed the rifle towards the victim’s face.

The victim was forced to the ground.

Approximately $1,200 value was taken.

The victim was vulnerable.

Her Honour carried out the same exercise in relation to each of the 10 incidents.

  1. At no time did her Honour suggest that these “features” were “aggravating factors” under s 21A of the Crimes (Sentencing Procedure) Act, although some were. They were, however, matters which made the particular incident more serious. Her Honour went into considerable detail in relation to incident 1 because of the standard non-parole period and assessed it as being “within the mid-range level of seriousness”. That was a finding open to her Honour and it has not been challenged.

  2. With respect to Elsaj’s three Forms 1, her Honour referred to the relevant authorities at sentencing judgment p 47.1. Her Honour’s table at p  2-3 showed how the Form 1 offences were taken into account. Her Honour increased the penalty for each offence on indictment in which another offence of an identical nature was taken into account on a Form 1. This was because of the greater need for specific deterrence and denunciation (see Abbas and Ors v R [2013] NSWCCA 115; 231 A Crim R 413).

  3. This ground of appeal has not been made out.

  4. Ground 4 – The non-parole period imposed did not involve a sufficient departure from the statutory ratio as to properly reflect the finding of special circumstances.

  5. The applicant accepted that there is a broad discretion inherent in the determination of whether special circumstances exist and if so, the extent of the adjustment. Nevertheless, by relying upon Sabongi v R [2015] NSWCCA 25 the applicant submitted that where a judge does make a finding of special circumstances, there should be a real adjustment of the non-parole period so as to give effect to the finding. The applicant submitted that such an adjustment had not taken place here.

Consideration

  1. Her Honour based her finding of special circumstances on three matters: the applicant’s youth, his mental health and drug abuse issues requiring ongoing rehabilitation and the totality of the criminality requiring some accumulation between the sentences. The ratio of the non-parole period to the head sentence was 67.7%. The complaint by the applicant is not that her Honour failed to make a finding of special circumstances, but that she failed to give sufficient weight to that finding when specifying the non-parole period.

  2. This Court has said on many occasions that an assertion that a sentencing judge has erred in the weight which was given to a particular factor is not sufficient of itself to establish error – Bullock v R [2016] NSWCCA 131 at [65]; Bland v R [2014] NSWCCA 82; 241 A Crim R 51 at [112] – [113]. This is particularly so where the ground of appeal concerns the extent of an adjustment to the ratio of the non-parole period. As Spigelman CJ said in Regina v Cramp [2004] NSWCCA 264 at [31]:

“31    In my view the size of such an adjustment raises so many matters of a discretionary character that this Court should be very slow to intervene.”

  1. In this case when one has regard to the reasons given by her Honour for finding special circumstances the parole period of 5 years is more than adequate for those special circumstances. Moreover, the aggregate non-parole period had to reflect the overall criminality involved (R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [65]). As already indicated, the overall criminality arose from Elsaj’s involvement in eight very serious incidents in circumstances where he had not been deterred from re-offending despite previous interventions by the criminal justice system by way of bonds, supervision and fulltime imprisonment.

  2. This ground of appeal has not been made out.

  3. Ground 2 – The sentencing exercise miscarried because the applicant has been left with a justifiable sense of grievance in relation to the comparative sentences imposed on his co-offenders.

  4. Elsaj noted that her Honour found that Zreika “generally performed the more serious role”. He submitted that such a finding was plainly correct, given that Zreika unlike himself, was the only offender who used a firearm in the commission of the robberies. Elsaj submitted that Zreika was sentenced for one more robbery offence than him. He noted that both of those matters were reflected in the fact that the total sum of the indicative sentences for Zreika was 33.5 years compared to 27 years for him.

  5. Elsaj submitted that despite this marked difference between the indicative sentences, the aggregate sentence which he received was only 1 year shorter in terms of the non-parole period and head sentence. He noted that the parole period was the same. Elsaj submitted that this unexplained and modest difference provided a basis for him having a justifiable sense of grievance in relation to the sentence imposed on Zreika.

Consideration

  1. Her Honour gave specific attention to parity as between Zreika and Elsaj at sentencing judgment pp 34.6 – 35.3. Her Honour noted that the offenders were to be sentenced on the basis that they were participants in a joint criminal enterprise with respect to the offences. It is uncontroversial that participants in a joint criminal enterprise are equally responsible for all the acts in the course of carrying out the enterprise regardless of who commits them. In order to take into account the moral culpability of each offender, it is desirable to identify the role played by each in the enterprise.

  2. In relation to Zreika, her Honour noted that for incidents 2, 3, 4, 5, 6, 7 and 8 he was the person who was armed with the firearm. For incidents 2 and 3 he threatened to shoot the victim. For incidents, 2, 4, 5, and 7 he held or pointed the rifle to the victim.

  3. In relation to Elsaj her Honour found that he also played an important part in the offending. Her Honour identified the following aspects of that offending. For incident 1 he wounded the victim. For incidents 4 and 9 he was armed with a baseball bat. For incidents 5, 6, 7, 8 and 10 he was not armed. Before incident 8 the telephone intercept material revealed that he was responsible for organising a car, the timing and the signal to get ready. For incident 9 he threatened to kill the victim. For incident 6 he acted with premeditation in having a lengthy conversation with the victim to build up his trust so as to persuade the victim to open the door later.

  4. The degree of accumulation for two offenders such as these, is a matter within the discretion of the sentencing judge. Where the offenders are sentenced by the same judge, intervention will only be justified where the disparity is “gross, marked or glaring” (Lam v R [2014] NSWCCA 50 at [42]; Loader v R; Dunn v R [2013] NSWCCA 215 at [91] – [86]; Zuhaib Shahzad v R [2016] NSWCCA 94 at [50]). Such a “gross, marked or glaring” disparity has not been established here.

  5. As her Honour appreciated, while the role of Zreika in the offending was more serious, that of Elsaj was not far behind. Unlike Zreika he committed the offence in incident 1 which was the only offence which involved actual wounding and which carried a standard non-parole period of 7 years, i.e. Elsaj inflicted physical harm to a victim whereas Zreika did not. Unlike Zreika, Elsaj had an identical prior conviction for robbery in company with wounding and the head sentence for this offence expired after the first incident and before the fourth incident because of the revocation of his parole. That is important because Elsaj was in custody during a period when the offending conduct took place but was not deterred and immediately resumed offending following his release.

  6. Taking those matters into account as her Honour clearly did does not give rise to a disparity which is “gross, marked or glaring”. This ground of appeal has not been made out.

  7. The orders which I propose in relation to the application for leave to appeal against sentence by Elsaj is that leave to appeal be granted but that the appeal be dismissed.

  8. BUTTON J: I agree with Hoeben CJ at CL.

  9. With regard to the grounds asserting that the sentences imposed are manifestly excessive, I accept that these were severe sentences to impose upon young men aged 18 years at the time of the offending, even recognising the objective gravity of what they did. However, I do not consider that either applicant has established that the sentence imposed was beyond the range available to the discretion of the learned sentencing judge.

  10. N ADAMS J: I agree with Hoeben CJ at CL and the additional comments of Button J.

**********

Decision last updated: 19 August 2016

Most Recent Citation
Cases Citing This Decision

2

Ping He v The Queen [2018] NSWCCA 123
Why v R [2017] NSWCCA 101
Cases Cited

42

Statutory Material Cited

3

R v Henry [1999] NSWCCA 111
R v Tobar [2004] NSWCCA 391
R v Henry [2007] NSWCCA 90