Chami v The Queen

[2021] NSWDC 732

District Court

New South Wales

Medium Neutral Citation:

Chami v R [2021] NSWDC 732

Hearing dates:

03 August 2021, 08 & 14 September 2021, 29 October 2021

Date of orders:

26 November 2021

Decision date:

26 November 2021

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

(1) Grant leave to the appellant to pursue the appeal outside of the 28 days, not opposed by the Crown

(2) Allow the appeal from sentence

(3) Confirm the conviction

(4) Confirm the CCO in terms imposed by the Local Court

(5) Set aside the Community Service order imposed

Catchwords:

APPEALS — Leave to appeal — Principles governing

APPEALS — Procedure — Leave to appeal

CRIME — Public justice offences — False statement on oath

Legislation Cited:

Crimes Act 1900

Cases Cited:

Lane Cove Council v Chami No 6 27 NSWLEC

Ross v The Lane Cove Council 2014 NSWCA 50

Category:

Principal judgment

Parties:

Sarab Chami (Appellant)
Regina (Respondent)

Representation:

Paul McGirr & Robert Candelori (solicitors for the Appellant)
Samuel Amvrazis (solicitor for the Respondent)

McGirr & Associates (Appellant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/00096763

 Decision under appeal 

Court or tribunal:

Sydney Local Court

Jurisdiction:

Criminal

Date of Decision:

09 December 2020

Before:

Crompton LCM

File Number(s):

2019/00096763

REVISED EX TEMPORE JudgEment

INTRODUCTION

1. Sarab Chami pleaded guilty in the Local Court on 14 October 2020 to an offence of making a false statement on oath not amounting to perjury contrary to s 330 Crimes Act 1900 for which the maximum penalty is imprisonment of five years. The Local Court jurisdiction is limited to two years imprisonment with a fine represented by 100 penalty units. The appellant also acknowledged her guilt in respect toward an additional offence of making a false statement on oath, not amounting to perjury contrary to the same provision and that was taken into account in a determination of sentence for the principle offence. The Magistrate posed a two year community corrections order with her to perform 120 hours of community service.

APPLICATION FOR LEAVE TO APPEAL

2. An appeal was lodged on 14 December 2020. That was in truth an application for leave to appeal because of the plea of guilty having been entered in the Local Court. The matter came before me and I had the task deciding whether or not to grant leave to appeal upon the conviction that she suffered. In the course of that, evidence was called from the appellant and from her counsel Mr Jones, who represented her in the Local Court where after a series of appearances, she ultimately pleaded guilty and the Magistrate further determined the matter.

3. The application before me was in effect the pursuit of orders that the appellant be permitted to resile from her plea of guilty and her acknowledgment of guilt in respect of the additional offence, to have the matter agitated in defended proceedings upon the basis that she was not guilty of the offence in either case. After hearing the evidence and the submissions by the parties, I was not persuaded that the application for leave to appeal from a conviction had merit and refused that application. Thereupon, it was indicated by the appellant’s solicitor that there was to be a pursuit of an appeal from the severity of sentence and the matter was set down for hearing for the determination of that matter. Leave was required but the Crown does not oppose the application for leave, to the extent that it is necessary. I have made an order that the appellant be given leave to appeal from the penalty.

THE APPEAL FROM SENTENCE

4. I have been referred to a number of authorities by the Crown, all of which are to the effect that evidence given in judicial proceedings, under oath or affirmation which is demonstrated to be untrue, is a serious crime. The provision under which these charges were brought, s 330 Crimes Act 1900, modified the law of perjury to the extent that all that was required of the prosecution was to prove that the statement was made on oath or under affirmation and that the statement was false. The prosecution was not required to prove that the false statement amounted to perjury.

5. One of the matters that one needs to bring to account for the determination of a charge of perjury is the materiality of the evidence given said to be false; that is not a matter required in a prosecution under this provision. However, materiality is a matter that is relevant to the assessment of objective seriousness of the offence which is a determination a court must make along the pathway toward the ultimate determination of sentence.

6. The conduct which I shall describe in a moment is to be understood in the context of an array of proceedings that have been pursued all told over ten years in the Land of Environment Court and in the New South Wales Court of Appeal, resulting in various decisions from those courts, culminating in 2015 with orders in the Land and Environment Court reversing stop work orders that have previously been made and challenged by the appellant and Mr Ross with whom she was in a relationship.

7. Thus, the question that brought this couple into conflict with Lane Cove Council was resolved in due course to their benefit, but that notwithstanding, cost orders were made against both of them, extending to hundreds of thousands of dollars and as a result she is now bankrupt. This question remains alive in other proceedings, or at least in the mind of the appellant and those advising her who are not the lawyers representing her in this appeal. There is I am told, action to challenge the fact of a costs order and its quantum with a view to having the bankruptcy set aside, but that is a matter that I am not concerned with; I simply note it as part of the history.

8. The facts upon which the appellant was presented are set forth in the traditional style of document embraced by police for proceedings in the Local Court; it is a document of some length. I do not need to quote it all but I simply note that it provides particulars of the background of the appellant as the mother of three children, including her youngest born in 2014 who she was carrying at the stage of about three months pregnancy at the time of these offences. There are two other children before then born respectively in 2008 and 2010. All three children were born to the appellant with Raymond Ross as the biological father. There was a question as to whether or not the children were from artificial insemination because of the nature of the relationship which was represented by the appellant in the course of the proceedings before me, but ultimately it is beyond question that Raymond Ross is the biological father of these three children, and upon material that has been presented, the evidence was in my view more than compelling that they were together in a relationship.

9. The history of the association between Mr Ross and a woman named Mackay is then discussed in the facts; they together operated a business, styled Accent Finance. There were property acquisitions including one by Ms Mackay, the finance for which came from that enterprise. Mackay and Ross became friends. Around 2006/2007, Mr Ross introduced the appellant as his new girlfriend to Ms Mackay. Ms Mackay provided a description of her perception of their relationship.

10. At around that time Mr Ross, it is said, bought a house at Bayview Street, Northwood into which he and the appellant moved. Ms Mackay visited them both and their child, XXXX at this address. Mr Ross told Ms Mackay that he was having difficulty with the council because he wanted to install a swimming pool, and they were living at this address while renovating a home at Naremburn. Mackay visited this home at Northwood on at least three occasions.

11. There followed in 2008 or 2009 court action by Mr Ross to take possession of a property from a colleague or associate of Mackay following foreclosure and bankruptcy of that person. There was an arrangement for Ms Mackay to train Mr Ross’s brother-in-law in dairy farming. After the foreclosure that led to the seizure of the property, there was a visit by Mackay with Mr Ross in 2010 to inspect the property, seized at Merryvale in Queensland. There were some issues about a dispute there with people who were then managing the property; there is a discussion of how Mr Ross introduced the boy XXXX as his son; the document then continues with a description of her observations of the relationship.

12. Around 2002 (sic) which I believe ought to be 2012, Mr Ross and the appellant came to the attention of Lane Cove Council because of illegal building works at Bayview Street, Northwood. In August 2012, the Land and Environment Court issued a stop work injunction. On 27 November 2012, a building surveyor attended the address and spoke with the appellant who introduced herself as Mr Ross’s wife. It is alleged she became aggressive and he left the property.

13. On 31 January 2014, proceedings were commenced by the council in the Land and Environment Court against the appellant who at the time was registered proprietor of the property. The transfer of that property had occurred before then, in what were described as unusual circumstances, not really amplified or properly qualified in any way in this document, which continues that shortly before the final hearing of proceedings against the previous owner, namely Mr Ross, in which the Lane Cove Council sought to restrain him from carrying out illegal building works, he transferred the property to the appellant at a low price.

14. There followed an appeal to the Supreme Court: Ross v The Lane Cove Council 2014 NSWCA 50. The proceedings had been taken against Mr Ross; the appellant ought to have been joined to the proceedings also as a registered proprietor. The Court of Appeal as a result, remitted the matter to the Land and Environment Court to be continued according to law.

15. On 5 June 2014, the surveyor returned to the property but was denied access by the appellant and Mr Ross.

16. On Friday 7 February 2014 was the first offence with which the appellant was charged. I will read this part of the document.

“On Friday 7 February 2014 an interlocutory hearing was held in the New South Wales Land and Environment Court. During the proceedings, Chami entered the witness box and took an affirmation to tell the truth. Chami was then cross-examined by Nick Eastman, a barrister representing Lane Cove Council. Eastman was assisted by instructing solicitor Stephen Griffiths. Eastman asked Chami “Is Mr Ross the father of your children?” Chami said, “No.” Eastman said, “Are you in a relationship with Mr Ross?” Chami said, “No, that’s not right.” Eastman said “Have you ever lived with Mr Ross?” Chami said, “No.”

17. These answers were said to be false.

18. The other offence followed an adjournment and occurred on the same day when the appellant was recalled to the witness box. I will read the description of this offence.

“Following an adjournment on 7 February 2014, Chami was recalled as a witness and again entered the witness box at the New South Wales Land and Environment Court. Chami was subject of the previous affirmation to tell the truth. A number of questions were asked of Chami by Eastman, “Have you been communicating with Mr Ross through your mobile telephone today?” Chami said, “Yes.” Eastman said, “Have you been communicating with Mr Ross through your telephone in the last two and a half hours?” Chami said, “No”.”

19. A number of further questions by Eastman were regarding her mobile telephone. The presiding judge then instructed Chami to produce her mobile phone to the Court. Chami stated,

“That’s an invasion of privacy.”

20. His Honour said,

“I’m the judge. Please produce the phone with the recent calls.”

21. Mr Eastman asked Chami a number of questions relating to the recent call history. Eastman said,

“When was the last time other than 4.08 that you called Mr Ross?”

22. Chami said,

“Hang on a sec, it says,”

23. Eastman said,

“Just be aware that I’m going to ask for your phone so I can check what you’re saying.”

24. Chami said,

“Yes, sure it was 3.40.”

25. Eastman said,

“3.40 today, Friday 7 February 2014?”

26. Chami said,

“Yes.”

27. The presiding judge said,

“That’s when I adjourned the Court at the end of the cross-examination?”

28. Chami said,

“Yes.”

29. Eastman said,

“So it is right to say that you lied to the Court when I asked you before “Have you spoken to him in the last two and a half hours?”

30. Chami said,

“Well, I spoke to him at 3.40. I did not know what the time was. It is ten past 4 now, so how long ago?”

31. Chami later stated while still in the witness box said (sic),

“It doesn’t matter if I spoke to Mr Ross. Is that all.”

32. That was said to be a lie.

33. There was some question about what phone was used. As I recall she had access to her sister’s phone within that sequence and whether or not it was on her sister’s phone or her own phone. There can be little doubt in my opinion that she was speaking falsely in response to those questions.

34. The matter before me includes an affidavit sworn by the appellant in which she asserted that she had been ill-advised by her counsel in the Local Court, that she had not ever wanted to plead guilty, and that she did not believe that she had given any false evidence. She sought to challenge the content of a pre-sentence report upon which she relied before the Magistrate in mitigation of penalty. In that report, the author noted her family and social circumstances including her domicile, where she lived with her three children, and that she and the father of the children shared joint care with no legal orders in place. She said she had not disclosed her offending behaviour to her support group due to her feelings of shame and embarrassment.

35. Beneath the heading ‘Attitudes’, it was said the appellant expressed that she takes full responsibility for her actions and described her offending behaviour as unacceptable. She describes her actions as due to an alleged medical issue involving a potential miscarriage which was unable to be verified.

36. The appellant’s evidence before me included the proposition that she experienced some pain and discomfort in the course of giving evidence when these answers were given. She had the perception that she might have been in the process of miscarrying and might have been losing some blood and that impacted upon her capacity to comprehend and respond to the questions put to her. She had made no disclosure of that difficulty either to the Magistrate or to her counsel so that her comfort could be accommodated and if necessary an explanation given to the judge in the Land and Environment Court so that she might have the opportunity to provide or obtain appropriate care. It was a matter though that was raised before the Magistrate to which Mr Jones of counsel spoke in his submissions.

37. There is also material tendered before me today, including a series of contemporaneous notes made upon the appellant’s attendances in the course of her pregnancies. The first document is a letter written by a Dr Sarah Woodbury obstetrician, on Monday 7 July 2014, recording that she was looking after the appellant for her third pregnancy and had been under her care for the last seven months of pregnancy. The document continues,

“Sarab has a significant background of mental health issues. She suffers from severe anxiety depression. I have serious concerns about her mental health as she enters into the third trimester of her pregnancy. Sarab has found that she feels harassed by the local rangers regarding the Land and Environment Court issue that is currently before the Court. She is starting to get strong psychosomatic symptoms of her anxiety where she is fainting, nauseous, vomiting and has tremulousness. She is not sleeping well.”

38. The document asks for consideration to adjourn the current case until early 2015 because of her current physical and mental symptoms. This was in July 2014, some five months after the conduct upon which the charges were brought.

39. The Crown correctly observes that notwithstanding her evidence that she sought care after what she said she experienced on 7 February 2014, there has been no material produced in respect of that occasion.

40. In the sentence assessment report under the heading health, there is reference to her representation at the time of the offending. She was newly pregnant with the youngest child. Drawing upon the document to which I just referred it would appear that she was about three months pregnant at the time that she gave this evidence. The pregnancy was considered to be high risk because she had suffered from a number of prior miscarriages. There is reference to past difficulties in that regard; the document is difficult to identify to place, in the time that I have had, in a precise chronology of those events, but I accept that she did not have an easy time on earlier occasions.

41. Then the report continues,

“Ms Chami reports that when she was giving evidence, she started experiencing the physical signs of a miscarriage which impacted on her ability to think clearly and answer the questions that were being asked of her.”

42. As I said there was nothing raised with the Land and Environment Court or those representing her there regarding that at the time that she gave the evidence, nor indeed was when she was recalled to the witness box as I earlier described.

43. There is no prior mental health diagnosis according to this report, although she said that her mental health was adversely affected due to anxiety associated with the pregnancy and fear of miscarriage. She said there were feelings of anxiety that had a negative impact on her ability to engage in legal proceedings; that does not sit comfortably with the text of the transcript to which I have referred from the Land and Environment Court. The report attributes her with insight into the impact of the offending and her acknowledgment of dishonest behaviour; that is unacceptable to the community. She was assessed as having a low risk of re-offending.

44. The person who wrote that report was not called before me and was not required for cross-examination as I recall it, but in any event, the Crown has provided the notes that were recorded by the officer who prepared that report. The appellant’s complaints included that this was a report prepared upon a telephone call and not in person. It was a telephone report as noted on the document on 16 November 2020 at 9am. The document also includes that the offender had not made contact with Community Corrections and the letter was sent to the address appearing on the sentencing assessment report with the details as set out below.

45. There was a text from the appellant and a telephone number nominated for that. This was on 9 November 2020. This does not make sense but I will record its details; the note is that details were confirmed and the appellant was advised the officer would be Sophie, advised to wait a call from Sophie. There was the phone report on 19 November and then the content of the exchanges provided in p 2 of this document, including the items to which I have referred in the sentencing assessment report tendered to the Court. There is consistency between both documents.

46. The affidavit provided by the appellant upon which she was cross-examined in the course of the hearing before me, includes her positive assertion at para 12 that she did not lie about her relationship with Raymond Ross. She denied to her counsel in the Local Court that she lied to the Court. She was critical of the attendances by counsel upon her, not providing her with written advise as to the strengths and weaknesses of her case. She complained in her evidence that it had not been explained what was meant by the term relationship, or the significance of the children being born as a result of artificial insemination, albeit using Mr Ross as the sperm donor, in the context of the questions that were asked.

42. She represented that she took advice given by counsel because she thought she had no choice and she feared she would go to gaol if she did not take the course proposed.

43. Included in the material tendered was the affidavit sworn by Mr Jones which challenged the position taken by the appellant. I found Mr Jones’ evidence to be persuasive and reliable. Annexed to his affidavit were emails that included a representation by the appellant,

“as per my earlier email, I’m very concerned at pleading NOT guilty as I do not want the judge to be “angry” at seemingly forcing the police to provide numerous witnesses and a two day hearing (at least) and continuing what we already ADMIT TO and the objective evidence proves, that is “RAYMOND is the biological father through IVF and we had a conventional co-parenting arrangement. I am not a good witness and I cannot think under pressure. See attached medical certificate.”

49. She then referred to the definition of father and relationship, a threshold issue to be determined before she entered the plea. She gave instructions with regard to the telephone call. I do not need to go through anymore of the evidence.

CONSIDERATION

50. The question that arises now though is what view should be taken of the punishment imposed by the Magistrate and whether in the circumstances, this was too severe.

51. I will first note that the appellant comes before the Court, born in 1978, without any prior offences and indeed there have been none since.

52. Mr Candelori provided me with a summary of the proceedings in which the appellant has participated in the Land and Environment Court and the Supreme Court and Court of Appeal and the stress to which she has been subject as a result of that. He pointed to the issue of materiality and the significance of the false evidence which could not provide her with any gain in the circumstances. He reminded me that the exchange in the Land and Environment Court between counsel and the appellant was terse, as it was described in the Local Court by her counsel.

53. The case that was being run against her and Mr Ross by the Lane Cove Council was in a word vigorous and ultimately was a result in her and his favour subject to the costs order, to which I have referred. It is said that this conduct is at the lowest end of objective seriousness and I am invited to consider the bankruptcy proceedings as extra curial punishment; I was informed of the decision of Lane Cove Council v Chami No 6 27 NSWLEC at [26] which as I understand it was the decision leading to the costs order.

54. The Crown correctly points to the serious nature of the offences and to the authorities that require an appropriate level of punishment because of the importance of ensuring that people who are called to give evidence are held to their oath or affirmation and do not give false evidence. It is a trite proposition; to allow people not to do so and not face the consequences allows an attack upon the fundamentals of our justice system which must be protected by the Court to the full extent that it is able to do so.

55. Motivation is an important consideration in this case; on any view of the material it is apparent that there was an issue with the Land and Environment Court as a result of action taken by Lane Cove Council initially against Mr Ross; for whatever reason, the premises, the subject of that dispute, were transferred to the appellant at a time proximate for the pursuit of the litigation in that other jurisdiction.

56. The evidence given by the appellant carries with it the implication that there was some attempt to distance her from Mr Ross with regard to this property. There could be no other finding in my view available from the material that I have. For what reason is not clear; the Crown suggested to me that an option would be to adjourn the proceedings to allow full investigation of the multiplicity of cases in the Land and Environment Court and the New South Wales Supreme Court to understand exactly what was motivating the appellant in the decision she made to give this false evidence.

57. I do not accept that she gave the false evidence as a consequence of stress or anxiety, the product of her fear of an imminent miscarriage in the circumstances where she took no steps to have assistance against any such risk at the time she was giving her evidence when clearly on the transcript she had the opportunity to do so if there was a true concern.

58. I am satisfied that she was attempting, for whatever reason, to distance herself from the arrangement with Mr Ross, connected with the transfer of the property, but I cannot make findings in relation to that as a matter that informs the objective gravity of offending to increase it; I would need to be satisfied beyond reasonable doubt of whatever that motivation might have been.

59. On the other side of the coin though, I do not accept that her responses were motivated by some innocent consideration.

60. She is about to undertake training for the qualification as a nurse. I am told that will start next year and it is clear that record of criminal offending will impact upon that opportunity, as it will in any employment situation; it is said that a conviction will be adverse to her and limit her scope to pursue that wish. There is nothing before me in evidence to demonstrate that is a problem for her; in any event, it is not the fact of a conviction that will inform any such decision but the conduct upon which the appellant engaged leading to the prosecution and the finding of guilt against her, regardless of the outcome ultimately that she might be required to suffer.

61. I am not satisfied that it is appropriate to set aside the conviction in this case.

62. However, in light of the experiences that she has had in the ongoing litigation between her and the Lane Cove Council and the continuing issues arising as a result of her bankruptcy, it does seem to me that I can ameliorate the punishment she suffered for this offence by setting aside the community service order as a condition of the community corrections order that was imposed by the Magistrate. I note that there is a stay and that the order that she should submit to, will commence today.

ORDERS

63. Accordingly, the appeal from the sentence I allow. I confirm the conviction. I confirm the imposition of the community corrections order in terms imposed by the Magistrate, for a period of two years. That will be from today. I vary the community corrections order by setting aside the order that she perform community service.

64. The appellant’s current address was confirmed, and orders made for the Registry to transmit copies of the community corrections order to the appellant and Mr Candelori who appeared on her behalf. I required that the appellant respond by email confirming her acknowledgement of the order and receipt of the documents.

65. Exhibits to remain on file.

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Decision last updated: 09 February 2022