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Chalabian v R

Chalabian v R

Case [2024] NSWCCA 47 5 April 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chalabian v R [2024] NSWCCA 47
Hearing dates: 8 November 2023
Date of orders: 5 April 2024
Decision date: 05 April 2024
Before: Leeming JA at [1];
Walton J at [2];
Fagan J at [3]
Decision:
1.   Refuse leave to appeal against conviction on ground 1.
2.   Grant leave to appeal against sentence on ground 3.
3.   Dismiss the appeal against sentence.

Catchwords:
CRIME — Appeals — Appeal against conviction —Directions of trial judge — Whether trial judge’s direction about alternative verdicts erroneously restricted the jury’s deliberations — No error — Leave refused
SENTENCING — Appeals — Appeal against sentence — Relevant factors on sentence —
Parity principle — Two co-offenders sentenced with benefit of pleas and application of the totality principle — Unorthodox method of achieving appropriate totality reduced the co-offenders’ sentences for the common offence — No justifiable sense of grievance arising from co-offenders’ sentences or from a related offender’s sentence

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Code (Cth)
Supreme Court (Criminal Appeal) Rules2021

Cases Cited:
Kelly v R [2017] NSWCCA 256
King v The Queen (2012) 245 CLR 588; [2012] HCA 24
R v Chalabian(No13) [2022] NSWSC 470
R v Dev Menon [2023] NSWSC 768
R v Hausman; Hausman v R; R v Rostankovski; Rostankovski v R [2022] NSWCCA 24
Stanton v The Queen [2003] HCA 29
Wood v R [2022] NSWCCA 84

Category: Principal judgment
Parties: Rex (Respondent)
Sevag Chalabian (Applicant)
Representation:
Counsel:
P McDonald SC with J Paingakulum and C Tran (Respondent)
T Game SC with D Barrow SC (Applicant)
Solicitors:
Commonwealth Director of Public Prosecutions (Respondent)
Streeton Lawyers (Applicant)

File Number(s): 2018/216206
Publication restriction: No
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2022] NSWSC 829

Date of Decision:

23 June 2022

Before:

Johnson J

File Number(s):

2018/216206

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, a solicitor, was found guilty by a jury of dealing with money in excess of $1 million that was proceeds of crime and that the applicant believed at the time of the dealing to be such proceeds: s 400.3(1) of the Criminal Code (Cth). On 23 June 2022, the appellant was sentenced to 12 years imprisonment with a non-parole period of 7 years and 6 months.

The applicant’s co-offenders, DR and DH, blackmailed the perpetrators of a conspiracy to defraud the Commonwealth, demanding payment of $25 million, in default of which DR and DH would publicise the fraud. They arranged with the applicant that they would deposit funds to his firm’s trust account and that he would disburse those funds at their direction.

Between 1 February and 26 April 2017 $24.2 million was deposited to the trust account and between 28 February and 18 May 2017 the applicant caused those funds to be transferred out, including approximately $880,000 to his own benefit. The sole issue at trial was whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chalabian v R

Details

AGLC: Chalabian v R [2024] NSWCCA 47
Case: [2024] NSWCCA 47
Decision Date: 05 April 2024

CaseChat Overview and Summary

The case of Chalabian v R involved an appeal against conviction and sentence. The appellant was convicted of serious criminal offences and sought to overturn both his conviction and the sentence imposed by the trial judge. The appeal centred on the trial judge’s direction to the jury regarding alternative verdicts, as well as the application of the parity principle in sentencing. The High Court was asked to determine whether the trial judge's direction erroneously restricted the jury's deliberations and whether the sentencing approach taken was appropriate.

The legal issues in the appeal were two-fold. First, the appellant contended that the trial judge’s direction concerning alternative verdicts was flawed, potentially impacting the jury’s ability to consider the appropriate verdict. Second, the appellant argued that the parity principle was not properly applied in sentencing, particularly in light of the sentences given to co-offenders who had pleaded guilty and received reduced sentences under the totality principle. The court had to assess whether the trial judge’s direction was erroneous and whether the sentencing approach adhered to the principles of parity and totality.

In examining the first issue, the court found no error in the trial judge's direction regarding alternative verdicts. The trial judge had acted within their discretion and provided the jury with a clear understanding of the options available. Regarding the second issue, the court considered the application of the parity principle in the sentencing context. The appellant argued that his sentence should be comparable to that of his co-offenders, who had received reduced sentences due to their pleas. However, the court concluded that the sentencing judge had appropriately considered the totality principle and achieved an appropriate outcome, despite the unorthodox method used. There was no justifiable sense of grievance arising from the co-offenders' sentences or from a related offender's sentence.

Ultimately, the High Court dismissed the appeal against conviction and sentence, finding no error in the trial judge's direction or in the application of the sentencing principles. The final orders were that leave to appeal be refused, and the original conviction and sentence be upheld.

Orders