Chalhoub v The Queen - [2021] NSWCCA 69

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Chalhoub v R [2021] NSWCCA 69
Hearing dates: 15 March 2021
Date of orders: 16 April 2021
Decision date: 16 April 2021
Before: Payne JA at [1]
Bellew J at [71]
Button J at [72]
Decision:
(1) Leave to appeal against sentence granted;
(2) Appeal dismissed.

Catchwords:
SENTENCING – penalties – intensive correction orders – whether sentencing judge erred in assessment pursuant to s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – no error shown
SENTENCING – sentencing procedure – agreed facts – where sentencing judge misstated agreed facts – error established – resentence – no lesser sentence warranted

Legislation Cited:
Crimes Act 1900 (NSW), s 193C(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 66
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
Drug Misuse and Trafficking Act 1985 (NSW), s 24(1), Sch 1

Cases Cited:
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
Casella v R [2019] NSWCCA 201
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Karout v R [2019] NSWCCA 253
Kember v R [2020] NSWCCA 152
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Fangaloka [2019] NSWCCA 173
R v Pullen [2018] NSWCCA 264; (2018) 275 A Crim R 509
Wany v DPP [2020] NSWCA 318

Texts Cited:
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 (NSW)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 273

Category: Principal judgment
Parties: John Chalhoub (Applicant)
Crown (Respondent)
Representation:
Counsel:
T F Woods (Applicant)
M Millward (Respondent)
Solicitors:
MacDougall & Hydes Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/118204
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

13 November 2020

Before:

Weinstein SC DCJ

File Number(s):

2018/118204

HEADNOTE

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

John Chalhoub (‘the applicant’) was sentenced to a term of imprisonment of 1 year and 6 months with a non-parole period of 9 months following a guilty plea to two counts of “manufacture a prohibited drug” contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The offences concerned the manufacture of 294.6 grams of cannabis oil (count 1) and 278 grams of cannabis resin (count 2). The applicant asked the Court to take into account on a Form 1 a further offence of “deal with property reasonably suspected of being the proceeds of crime” pursuant to s 193C(2) of the Crimes Act 1900 (NSW).

The applicant appealed against sentence on two grounds. First, that the sentencing judge failed to undertake the assessment mandated by s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) when determining whether an intensive correction order (‘ICO’) should be made. Second, that the findings of the…

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 Chalhoub v The Queen

Details

AGLC: Chalhoub v The Queen [2021] NSWCCA 69
Case: [2021] NSWCCA 69
Decision Date: 16 April 2021

CaseChat Overview and Summary

In the case of Chalhoub v The Queen, the appellant, Chalhoub, faced sentencing in the Supreme Court of New South Wales following his conviction for various drug-related offences. The central dispute was the appropriateness of the intensive correction order imposed on the appellant, as well as the sentencing judge's handling of the agreed facts. The appeal was centred on whether the sentencing judge made an error in the assessment of the case under section 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Additionally, the appellant argued that the sentencing judge misstated the agreed facts, potentially influencing the sentence imposed.

The legal issues before the court included whether the sentencing judge erred in the assessment required by section 66(2) of the Act, which mandates a consideration of the offender's background and circumstances, as well as the nature and circumstances of the offence. Furthermore, the court had to determine whether the misstatement of agreed facts constituted a significant error that necessitated a resentencing, and if so, whether a lesser sentence was warranted. The court needed to balance the appellant's arguments against the statutory requirements and the sentencing principles applicable to the case.

Upon review, the court found no error in the sentencing judge's assessment under section 66(2) of the Act. The court concluded that the judge appropriately considered the appellant's background, circumstances, and the nature of the offence in determining the sentence. However, the court identified an error in the misstatement of agreed facts by the sentencing judge. Despite this error, the court determined that it did not warrant a resentencing or a lesser sentence. The court held that the error did not materially affect the outcome of the sentencing process.

The final orders of the court were to dismiss the appeal, affirming the sentence imposed by the primary judge. The court maintained that the sentence was appropriate given the circumstances and did not require adjustment despite the identified error in the agreed facts.

Orders