Regina v Elkaddour [2001] NSWCCA 302

New South Wales Court of Criminal Appeal

CITATION : Regina v Elkaddour [2001] NSWCCA 302 FILE NUMBER(S) : CCA 60723/99 HEARING DATE(S) : 6 August 2001 JUDGMENT DATE : 6 August 2001

PARTIES : Regina v Mahmoud Elkaddour JUDGMENT OF : Dowd J at 1 & 15; Smart AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0245 LOWER COURT JUDICIAL Nield DCJ OFFICER :

COUNSEL : (A) In Person (c) E A Wilkins SOLICITORS : (A) In Person (C) S E O'Connor CATCHWORDS : Sentence for serious armed robbery - not excessive LEGISLATION CITED : Nil CASES CITED: Nil DECISION : Leave to appeal refused

IN THE COURT OF CRIMINAL APPEAL

60723/99

DOWD J SMART AJ

Monday 6 August 2001 REGINA (NSW) v MAHMOUD ELKADDOUR

JUDGMENT

1 DOWD J : The Court is in a position to give judgment on this application. Justice Smart will deliver the first judgment.

2 SMART AJ : Mahmoud Elkaddour seeks leave to appeal against the severity of a sentence of six years imprisonment with a non-parole period of three and a half years for the offence of armed robbery with an offensive weapon. The sentence commenced on the 18 November 1999, the day of sentencing.

3 About 1am on 15 March 1998 the applicant knocked on the victim's front door. The victim awoke while his fiancee and two year old daughter continued to sleep. The victim looked through the peep hole in the front door and saw the applicant who said he was looking for a friend called Peter. After being told that he had the wrong house the applicant prevailed upon the victim to be allowed to use the toilet. The victim opened the front door and allowed the applicant to do so. The applicant wanted to stay. However the victim asked the applicant to leave a number of times. The applicant produced a knife and demanded money and jewellery. He threatened to kill the victim and demanded that he disconnect the video and television set. The applicant bound the victim's hands and legs together with tape twice and then untied them when he required assistance. After directing the victim to put the video down on the brick ledge outside a block of units the applicant threatened the victim against calling the police saying "I know where you live. I know you have a family".

4 On any view this was an armed robbery of considerable gravity meriting a stern sentence. The applicant's mother made a statement to the police stating that he knocked on the front door of the family home about 3am that morning. He entered the house when the door was opened and threw a bag on the floor before going into a bedroom. She opened the bag and discovered a knife and two screwdrivers which she put into her handbag. When she confronted him about it the applicant begged her not to go to the police. She went to Lakemba Police Station and handed the knife and screwdrivers to the police. The victim was able to identify the knife and backpack as the same items as the ones used in the robbery. He was unable to positively identify the applicant as the person who had robbed him. The applicant was charged the next day.

5 The applicant was born on the 23 August 1977. His record goes back to 1994. It contains serious assaults, robbery with striking, drug offences and matters of dishonesty. On 14 January 1997 he was sentenced for a number of offences to six months imprisonment commencing on 19 March 1998. On 25 March 1998 he was sentenced to for a number of offences six months imprisonment commencing on 19 March 1998. On 27 August 1998 he was sentenced to a minimum term of three years commencing on 19 September 1998 with an additional term of two years for an earlier armed robbery.

6 The applicant has complained that he has been given insufficient credit for his plea of guilty. This was entered on the second day of the trial and after the judge had ruled that his mother's evidence was admissible. That cemented an already strong Crown case. The judge took the applicant's plea into account, noting that it had the effect of saving the State time and cost and relieved the need of the mother to give evidence. The judge thereby reduced the sentence which he would otherwise have imposed.

7 The applicant submitted in writing that at no time did he deny his involvement in the robbery. His record of interview does not support that contention. He said "I told you that I got alibis...I got four or five alibis". Not denying involvement is not equivalent to pleading guilty.

8 The applicant further submitted that he did not plead guilty earlier because he could not recall the robbery as he was under the influence of a number of drugs including Rohypnol. He said that he changed his plea because his mother was sick and he did not want to put her through the ordeal of giving evidence. Further, his solicitor first advised him to plead not guilty and then advised him to plead guilty.

9 These considerations do not lead to the applicant being given a further discount. I should add that on his appearance in Court today the applicant did not deny and indeed admitted that he had committed the offence.

10 The applicant submitted that his sentence should be backdated to September 1998. That was the date from which another sentence for armed robbery dated. However, at the time of this armed robbery offence (15 March 1998) the applicant was on bail for an earlier armed robbery.

11 The applicant has complained that there was considerable delay between the time of his pleading guilty in March 1999 and his sentencing in November 1999. An examination of the transcripts indicates that part of the delay was due to the difficulty being experienced by the applicant's legal representatives in obtaining the report of a psychologist and part was due to the non-availability of counsel on particular days. The applicant was concerned that, because of the delays, his sentence commenced at a later date than it should have and that he will thereby serve longer in gaol.

12 The sentence for the first armed robbery was one of three years commencing on 19 September 1998 and concluding on 18 September 2001 with the additional term of two years. The judge would have been more than entitled to commence the sentence for the second armed robbery from the 19 September 2001. By overlapping the sentences in the way in which the judge did, the applicant has received a considerable advantage, indeed, one just under two years.

13 Armed robbery offences are particularly serious and these armed robbery offences were spaced some distance apart. There were the further problems that the applicant was on bail and it was for another offence of armed robbery.

14 In all the circumstances the sentence imposed by the judge, having regard to the criminality revealed, was by no means excessive. Indeed, it was a moderate sentence. I am of the opinion that there is no substance in the applicant's complaints and that leave to appeal should be refused.

15 DOWD J : I agree with the proposed order and his Honour's reasons therefor. The order of the Court will be therefore that leave is refused.

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