Hesham Elsobky v R [2006] NSWCCA 168 (26 May 2006)

CITATION: Hesham ELSOBKY v REGINA [2006] NSWCCA 168

FILE NUMBER(S):

2006/564

HEARING DATE(S): 22 May 2006

DECISION DATE: 26/05/2006

PARTIES:

Hesham ELSOBSKY (applicant)

REGINA (respondent)

JUDGMENT OF: James J Hidden J Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/3000

LOWER COURT JUDICIAL OFFICER: Nield DCJ

COUNSEL:

Hesham Elsobky (applicant in person unrepresented)

D Arnott SC (respondent)

SOLICITORS:

Hesham ELSOBKY (applicant unrepresented)

S Kavanagh - Solicitor for Public Prosecutions (respondent)

CATCHWORDS:

CRIMINAL LAW:

Application for leave to appeal against sentence

accessory after the fact to armed robbery

whether appropriate weight given to plea of guilty

hardship to applicant's family as a result of his imprisonment

whether sentence manifestly excessive

LEGISLATION CITED:

DECISION:

Leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2006/564

JAMES J

HIDDEN J

HOEBEN J

Friday 26 May 2006

Hesham ELSOBKY v REGINA

Judgment

1 JAMES J: I agree with Hidden J.

2 HIDDEN J: The applicant, Hesham Elsobky, pleaded guilty in the District Court to a charge of accessory after the fact to armed robbery, an offence carrying a maximum sentence of imprisonment for fourteen years. Nield DCJ sentenced him to imprisonment for two and a half years, comprising a non-parole period of one year and three months and a balance of term of the same length, dating from 10 May 2005. The non-parole period will expire on 9 August 2006, about two and a half months hence.

3 The applicant seeks leave to appeal against that sentence. He appeared unrepresented, and relied upon written submissions and some accompanying documents which he had forwarded to the registry. He supplemented this material by oral argument.

Facts

4 The facts can be stated shortly. The victim of the armed robbery was the applicant’s wife and the perpetrator of the robbery was a young lady named Cassandra Collins. The applicant had been in an intimate relationship with Ms Collins, although he was still living with his wife at the time.

5 In the early evening of 18 January 2003, outside a church at Liverpool, Ms Collins threatened the victim with a knife and seized her handbag. The victim struggled and suffered some lacerations to her left forearm and hand before being pushed to the ground by Ms Collins. Ms Collins then ran to a car parked in a nearby street, which was occupied by the applicant. He drove her from the scene. Later that night he was arrested, in circumstances which need not be outlined, and a search of the car revealed some of the items from the victim’s handbag concealed under the lining in the boot.

6 The applicant was originally charged with complicity in the armed robbery and, indeed, he was to face trial for that offence in the District Court, jointly with Ms Collins. It was at a late stage that he pleaded guilty to the charge of accessory after the fact. Judge Nield reduced the sentence he would otherwise have passed by fifteen percent in recognition of that plea.

7 Ms Collins was also sentenced by Judge Nield, after being found guilty at trial. She was sentenced to imprisonment for eight years with a non-parole period of five years. She appealed against conviction and sentence and, as it happens, judgment in her appeal was handed down on the day the present application was heard. The appeal against conviction was dismissed. Her appeal against sentence was allowed only to the extent of altering its commencement date to incorporate a period of pre-trial custody.

Subjective case

8 The applicant was thirty-six years old at the time of the offence and is now thirty-nine. He was born in Egypt. He married the victim in that country and they had three children there. The family migrated to this country in 1997 and he is now an Australian citizen.

9 Shortly after their arrival in Australia, his wife suffered serious spinal injuries in a motor vehicle accident. At the end of 2004 she sustained a further injury to her back and to her ankles. She has continued to experience significant disabilities, originating in the car accident. The applicant had been the primary carer for her and for the three children. In addition, their youngest son suffers from urethral and bladder problems. He has required operative treatment in the past and will require more in the future. He is incontinent and needs to wear pads or nappies.

10 The applicant was receiving a carer’s payment. His only employment in this country was in the earlier part of 2003, when he worked as a packer until he himself sustained a back injury. Thereafter he also received worker’s compensation payments.

11 Although she was the victim of the offence, his wife gave evidence in the sentence proceedings to the effect that she was dependant upon him for her own personal care and for the care of the children. As to the youngest child, in particular, she said that she was unable to attend to his personal needs arising from his condition because of her disabilities and because, in any event, he was embarrassed to have her do so. His Honour accepted that the family would “suffer greatly” from the applicant’s being imprisoned, and it was for this reason that he found special circumstances justifying a departure from the statutory proportion between sentence and non-parole period.

12 The applicant has a criminal record, to which it is not necessary to refer except to note that in July 2001 he was dealt with in a Local Court for assaulting his wife and contravening an apprehended domestic violence order which she had been granted. For the assault he was fined and for the contravention of the apprehended domestic violence order he was placed on a two year bond. That bond was current at the time of the subject offence.

The application

13 Much of the material which the applicant had produced in writing, and which he addressed orally, related to developments since he had been sentenced. Some of it dealt with difficulties he was experiencing in prison, but most of it was devoted to the present position of his family. Strictly, of course, this material could be received only if the Court decided that it should intervene and re-sentence him. That said, the information he supplied about his family was much as one might expect following his incarceration and did not disclose anything significantly different from the evidence which was before his Honour.

14 The thrust of his application was that inadequate recognition had been given to his plea of guilty and to the hardship his family would suffer from his being imprisoned, and that the sentence is manifestly excessive. I shall deal with each of those matters in turn.

Plea of guilty

15 According to the applicant, his barrister in the sentence proceedings gave him to understand that agreement had been reached with the Director of Public Prosecutions that he would not be imprisoned if he pleaded guilty. He adduced no evidence to that effect, and the proposition is inherently improbable. If he does believe that to have been the position, it may be the result of some misapprehension of the advice which his counsel had tendered to him. He did not seek to go behind his plea of guilty.

16 He said that, in any event, he should have been afforded a twenty-five percent discount of sentence for his plea. That figure is at the top of the range of discount for a plea of guilty propounded in R v Thomson & Houlton (2000) 49 NSWLR 383. It is well settled that the discount to be allowed for a plea of guilty is very much in the discretion of the sentencing judge in each case, and depends upon the nature of the case and the timing of the plea. Here, the plea was entered at a very late stage of the proceedings. To recognise it by a discount of fifteen percent was well within the proper exercise of his Honour’s discretion.

Hardship to family

17 The primary thrust of the applicant’s argument was that his Honour gave inadequate weight to the hardship his family would suffer from his imprisonment. The effect of the evidence, he asserted, was that they could not cope without him.

18 The credibility of his wife’s evidence about that matter in the sentence proceedings was challenged but, as I have said, his Honour accepted that to imprison the applicant would cause the family great suffering. However, his Honour went on to observe that the effect of his imprisonment upon the family was not “unusual or exceptional”, and that, unfortunately, “a wife and children suffer greatly when a husband and father is sentenced to a period of imprisonment for having committed an offence.”

19 Those observations are consistent with well-settled authority about the relevance to sentence of the hardship the imprisonment of a person might cause to others. It is sufficient to refer to R v Edwards (1996) 90 A Crim R 510, per Gleeson CJ at 515 – 7. The Chief Justice said (at 515):

Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment.

20 The Chief Justice referred (at 516) to a passage from the judgment of Wells J in R v Wirth (1976) 14 SASR 291 at 295 – 6:

Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court... It seems to me that courts would often do less than their clear duty – especially where the element of retribution, deterrence, or protection of society is the predominant consideration – if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.

21 It is for those reasons that it is only in exceptional cases that a sentence will be reduced because of the effect upon others of an offender’s imprisonment. In the present case, his Honour did make an allowance for the predicament of the family by a significant reduction of the non-parole period which would have otherwise have been produced by the application of the statutory proportion. The usual proportion (seventy-five percent) of a sentence of two and a half years would have been a non-parole period of one year, ten months and two weeks. That period was reduced by seven and a half months to one year and three months. There is no error in his Honour’s approach.

Manifestly excessive?

22 Finally, the applicant argued that the sentence is excessive and that, for that reason alone, it should be reduced. That argument also must be rejected.

23 As I have said, the offence carries a maximum sentence of imprisonment for fourteen years. That the applicant would be prepared to be involved in any way in the robbery of his disabled wife is, to say the least, an unattractive feature of the case. Moreover, he was on a bond at the time and sentencing courts have always taken a very serious view of the commission of offences by persons subject to conditional liberty. In R v Readman (1990) 47 A Crim R 181, Maxwell J said (at 184):

This Court has repeatedly stated that the commission of an offence by an offender who is in the community on conditional liberty, whether that be on bail, on a recognisance, or on parole, will be considered as a matter that aggravates the offence.

24 In all the circumstances, it was clearly open to his Honour to impose a full-time custodial sentence and the length of the sentence was, again, well within the proper exercise of his Honour’s discretion.

25 I would grant leave to appeal but dismiss the appeal.

26 HOEBEN J: I agree with Hidden J.

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LAST UPDATED: 26/05/2006