Chami v The Queen - [2019] NSWCCA 63

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chami v R [2019] NSWCCA 63
Hearing dates: 1 March 2019
Date of orders: 29 March 2019
Decision date: 29 March 2019
Before: Leeming JA at [1]
Harrison J at [2]
Davies J at [30]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: CRIMINAL LAW – appeal against sentence – where appellant sentenced for assault inflicting grievous bodily harm with intent to rob armed with an offensive weapon, robbery armed with a dangerous weapon, and assault with intent to rob armed with a dangerous weapon – where appellant sentenced to aggregate sentence of 11 years with a non-parole period of 7 years and 9 months – whether the sentencing judge erred in the application of the totality principle – whether the new sentence imposed on the appellant’s co-offender requires the re-exercise of the principle of proportionality as against the appellant’s sentence – whether the aggregate sentence is manifestly excessive – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 97(2), 98
Cases Cited: Chaouk v R [2017] NSWCCA 295
Category: Principal judgment
Parties: Youssif Chami (Appellant)
Regina (Respondent)
Representation:
Counsel:
A Chhabra (Appellant)
B Baker (Respondent)
Solicitors:
A Bannister (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2014/92517
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

8 September 2017

Before:

Woodbourne DCJ

Judgment

LEEMING JA: I agree with Harrison J.
HARRISON J: Youssif Chami seeks leave to appeal against the severity of a sentence imposed upon him by Woodbourne DCJ in the District Court of New South Wales on 8 September 2017. Mr Chami ultimately pleaded guilty to three counts on an indictment as follows:

Count 1: assault inflicting grievous bodily harm with intent to rob armed with an offensive weapon contrary to s 98 of the Crimes Act 1900. That is an offence for which the maximum penalty is 25 years imprisonment with a standard non-parole period of 7 years.

Count 3: robbery armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900. That is an offence for which the maximum penalty is 25 years imprisonment.

Count 5: assault with intent to rob armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900. That is an offence for which the maximum penalty is 25 years imprisonment.

Mr Chami had earlier been committed for trial on 29 January 2015. All of the offences are alleged to have been committed on 26 March 2014 in company with Ali Chaouk and Omar Hariri. The trial was listed for hearing on 6 October 2015. Before the jury was empanelled, Mr Chami pleaded guilty to all three counts and a further count 8. He was subsequently given leave to withdraw his pleas of guilty in respect of counts 3 and 8. Mr Chami’s trial was then re-listed to commence on 24 July 2017.…

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 Chami v The Queen

Details

AGLC: Chami v The Queen [2019] NSWCCA 63
Case: [2019] NSWCCA 63
Decision Date: 29 March 2019

CaseChat Overview and Summary

The appellant in Chami v The Queen appealed against his sentence imposed by the Supreme Court of Victoria. The appellant was convicted of multiple offences including assault causing grievous bodily harm with intent to rob armed with an offensive weapon, robbery armed with a dangerous weapon, and assault with intent to rob armed with a dangerous weapon. The Supreme Court sentenced the appellant to an aggregate sentence of 11 years imprisonment, with a non-parole period of 7 years and 9 months. The appeal to the Court of Appeal centred on the fairness and proportionality of the sentence, particularly in light of the sentence given to the appellant's co-offender.

The key legal issues in the appeal were whether the sentencing judge erred in applying the totality principle, whether the new sentence imposed on the co-offender required the re-exercise of the principle of proportionality as against the appellant's sentence, and whether the aggregate sentence was manifestly excessive. The appellant argued that the sentence was disproportionate and should be reduced, taking into account the lesser sentence of his co-offender.

The Court of Appeal dismissed the appeal, holding that the sentencing judge had not erred in applying the totality principle. The court found that the sentence was proportionate to the seriousness of the crimes committed by the appellant. The court also noted that the new sentence of the co-offender did not necessitate a re-examination of the appellant's sentence. The Court of Appeal concluded that the aggregate sentence was not manifestly excessive and affirmed the original sentence.

Orders