Chalhoub v The Queen

Case [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…

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Chalhoub v The Queen [2021] NSWCCA 69
Case
[2021] NSWCCA 69
Decision Date

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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