Elskaf v R [2023] NSWDC 8

Elskaf v R [2023] NSWDC 8

Because each offence was charged as a first offence with a maximum penalty of 9 months imprisonment and the Magistrate imposed individual terms exceeding that maximum, the severity appeal had to be allowed and the appellant resentenced. Having regard to the objective seriousness, high moral culpability, need for general and specific deterrence, lack of remorse, limited prior record, and suitability for supervision and community service, an aggregate term of 15 months imprisonment served by way of an Intensive Corrections Order with 150 hours of community service was appropriate. The Magistrate's disqualification order was proportionate and involved no error, so it was confirmed.

Jurisdiction
Australia
Judgment Date
31 January 2023
Procedural Posture
Criminal Appeal Against Severity / District Court Appeal From Penalties Imposed by Magistrate; Resentencing
Outcome
Appeal allowed; Magistrate's Intensive Corrections Orders set aside; appellant resentenced to an aggregate term of imprisonment of 15 months to be served by way of an Intensive Corrections Order with 150 hours of community service; disqualification order confirmed.
Legal Topics
['drive in a Manner or Speed Dangerous to the Public' 'severity Appeal' 'intensive Corrections Order' 'licence Disqualification' 'community Service' 'general Deterrence' 'specific Deterrence']
['criminal Law' 'sentencing' 'traffic Law'] ['drive in a Manner or Speed Dangerous to the Public' 'severity Appeal' 'intensive Corrections Order' 'licence Disqualification' 'community Service' 'general Deterrence' 'specific Deterrence']

Case Brief

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Procedural Posture

Criminal Appeal Against Severity / District Court Appeal From Penalties Imposed by Magistrate; Resentencing

Legal Issues

  1. 1 ['Whether the sentences imposed by the Magistrate for four counts of Drive in a Manner or Speed Dangerous to the Public exceeded the maximum penalty for first offences under s 117(2) Road Transport Act 2013.' 'Whether the appeal against severity should be allowed and the appellant resentenced.' 'Whether an aggregate term of imprisonment should be imposed and served by way of an Intensive Corrections Order.' 'Whether the disqualification orders imposed by the Magistrate should be disturbed.']

Ratio Decidendi

Because each offence was charged as a first offence with a maximum penalty of 9 months imprisonment and the Magistrate imposed individual terms exceeding that maximum, the severity appeal had to be allowed and the appellant resentenced. Having regard to the objective seriousness, high moral culpability, need for general and specific deterrence, lack of remorse, limited prior record, and suitability for supervision and community service, an aggregate term of 15 months imprisonment served by way of an Intensive Corrections Order with 150 hours of community service was appropriate. The Magistrate's disqualification order was proportionate and involved no error, so it was confirmed.

Court Disposition

Appeal allowed; Magistrate's Intensive Corrections Orders set aside; appellant resentenced to an aggregate term of imprisonment of 15 months to be served by way of an Intensive Corrections Order with 150 hours of community service; disqualification order confirmed.

Orders

  • ['Appeal allowed.' 'I set aside the ICOs imposed by the Magistrate.' 'In lieu thereof I impose an aggregate term of imprisonment of 15 months to be served by way of an Intensive Corrections Order, commencing today. The standard conditions of the order apply. In addition, the appellant must perform 150 hours of...