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

1. LEEMING JA: I agree with Harrison J.

2. 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:

1. 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.

2. 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.

3. 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.

3. 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. On 25 July 2017, Mr Chami re-entered his plea of guilty to count 3 and the Crown withdrew count 8.

4. Her Honour sentenced Mr Chami to an aggregate term of 11 years with a non-parole period of 7 years and 9 months. That sentence was backdated to commence on 27 March 2014. The total term will expire on 26 March 2025 and the non-parole period will conclude on 26 December 2021. Her Honour set out the indicative sentences for each offence as follows:

1. Count 1: Imprisonment for 7 years and 3 months with a non-parole period of 5 years and 1 month.

2. Count 3: Imprisonment for 5 years and 6 months.

3. Count 5: Imprisonment for 5 years and 2 months.

5. Her Honour allowed Mr Chami a discount of 15% for the utilitarian value of his plea and made a finding of special circumstances. The non-parole period represents some 70% of the total term.

6. Mr Chami originally sought leave to appeal on five grounds. However, in the proceedings before this Court on 1 March 2019, only the following three grounds of appeal were pressed:

1. Ground 1: The sentencing judge erred in the application of the principle of totality.

2. Ground 2: The new sentence imposed upon the applicant’s co-offender Chaouk requires the re-exercise of the principle of proportionality as against this proper sentence.

3. Ground 5: The aggregate sentence is manifestly excessive.

Background

7. Mr Chami was sentenced upon the basis of a statement of agreed facts. Those facts are for presently relevant purposes as follows.

8. On about 19 March 2014, arrangements were made between Mr Chami and ZN (aged 18 years) for the purchase of a mobile phone. A telephone number was subsequently registered in Mr Chami’s name. ZN and Rhynal Nand later met with Mr Chami in Merrylands and purchased a phone from him.

9. Between 3.00pm and 5.00pm on 25 March 2014, a number of calls were made by Mr Chami to ZN. At 9.50pm the following day, ZN received a phone call from Mr Chami on his mobile phone. ZN recognised Mr Chami’s voice as being that of the male he had met with the previous week to purchase a phone. Mr Chami offered two phones for sale and asked ZN if he was interested in purchasing one of them. ZN indicated that he was and the price of $550 was agreed.

10. Mr Nand drove ZN and ZN’s brother ZD (aged 17 years) towards Merrylands for the purpose of the purchase and on the way they stopped at Villawood McDonalds where ZN received a phone call from Mr Chami at about 10.32pm. The call showed up as “no caller ID” on ZN’s phone. ZN recognised Mr Chami’s voice. Mr Chami said that he was in a hurry to go out and asked ZN to attend the Merrylands address straight away. Mr Chami placed another call a minute later to ask ZN if he was coming.

11. Call charge records demonstrated that the phone calls from Mr Chami to ZN over the period from about 9.50pm until 10.33pm were made using two telephones. One was made from a Telstra phone box at 400 Guildford Road, Guildford. The other was made from a mobile phone being used by Omar Hariri. The phone box was used by Mr Chami to make calls to ZN at 9.50pm, 9.55pm and 10.27pm. The mobile phone being used by Omar Hariri was used by Mr Chami to make calls to ZN at 9.49pm, 9.58pm, 10.15pm, 10.30pm, 10.32pm and 10.33pm.

12. Mr Nand then drove ZN and ZD to the Merrylands address. ZN was seated in the front passenger seat and ZD was sitting behind him. Mr Nand drove to the bottom of the street and turned his car around. He and ZN recognised Mr Chami, who was standing on the street, as the person who had sold ZN a mobile phone. Mr Nand stopped the vehicle and Mr Chami walked over to it. Mr Ali Chaouk was at this time standing on the street and Mr Omar Hariri was standing adjacent to a laneway nearby.

13. Mr Chami got into the back seat of the vehicle and told Mr Nand to drop him further up the street. Mr Nand then drove two houses up when Mr Chami told him to stop. Mr Chami then indicated that Mr Nand should drive his friend to pick up the phone from a friend’s house. Mr Chami got out of the vehicle and walked to the side of the road. Ali Chaouk approached the vehicle, opened the rear driver’s side passenger door and sat beside ZD. Mr Nand, ZN and ZD observed Mr Chaouk produce a small silver and black coloured firearm whilst in the vehicle. Mr Chaouk started to wave the gun around. The victims said that they did not have any money.

14. The Crown accepted that it could not be proven beyond reasonable doubt that Mr Chami was aware that Mr Chaouk had a firearm as he approached the vehicle. It was an agreed fact that he became aware of the firearm when it was first produced by Mr Chaouk in the vehicle.

15. Mr Chaouk put the gun against ZD’s head and said, “give me whatever yous [sic] have”. ZD handed over his mobile phone and wallet containing $600 cash, various personal papers and cards. This gave rise to Count 3, an offence common to both Mr Chaouk and Mr Chami.

16. Mr Chaouk demanded money from ZN who informed him that he did not have any money and would need to go to an ATM. Mr Chaouk held the gun to ZN’s head and told him to get out of the car so that they could drive to the ATM. ZN refused. This gave rise to Count 5, an offence common to both Mr Chaouk and Mr Chami.

17. A third person was standing next to Mr Nand at the open driver’s door and held his jumper out in front of him, giving the appearance of possession of a weapon. That offender said, “Open your wallet and open your pockets”. Mr Nand said that he only had $50 in cash. Mr Chaouk then reached over the driver’s seat and punched Mr Nand to the back of the head and yelled “fuck you” and fired three shots hitting Mr Nand in the arm, chest and abdomen. This gave rise to Count 5, an offence common to both Mr Chaouk and Mr Chami.

18. Mr Chaouk got out and ran from the vehicle. Mr Chami also ran off but in a different direction to Mr Chaouk.

19. Mr Nand required surgery to his gunshot wounds and at the time of the sentence proceedings had difficulties using his right arm.

20. On the basis of the agreed facts Mr Chami’s liability attaching to the use of the weapon was derived from his continuing presence after such time as the gun was produced, this being evidence of an intent to assist if required. It was not alleged that he otherwise participated in the events after that.

Grounds 1 and 2

21. The passages in her Honour’s remarks on sentence to which Mr Chami sought to draw this Court’s attention are as follows:

“In imposing sentence on an offender who has committed multiple offences it is proper to proceed by imposing appropriate sentences and to apply the totality principle by the extent to which the sentences are made concurrent or cumulative. I will shortly be indicating the appropriate sentences for each offence. Because I am sentencing Mr Chami in respect of more than one offence I have given consideration to the totality principle.

There are matters that point towards concurrency of sentence.

(1) The offences were committed during the course of one episode.

(2) The offences were committed by the same offenders.

(3) The offences were committed using the same weapon; and

(4) The offences were committed in quick succession.

There are matters that point to accumulation:

(1) The fact that there were three victims.

(2) The fact that each offence is serious in its own right.

I have determined that some degree of accumulation of sentence is appropriate as was recognised by the parties. By reason of the seriousness of each offence I am satisfied that there should be more than merely minor accumulation. The offender should be made to serve some discrete term of imprisonment for the very serious offence committed against each of his three victims. The degree of accumulation is of course constrained by the principle of totality.”

22. In his oral submissions in this Court, counsel for Mr Chami at one point submitted that the “individual, indicative sentences [were] of such individual severity that a greater degree of concurrency should have followed”. However, that submission was later clarified in response to a question from the presiding judge when counsel made it clear that there was “no criticism of the individual sentences”. Counsel for Mr Chami ultimately explained that his complaint was that both the extent of the accumulation and the reasons for the degree of accumulation of the sentences were not made clear by the sentencing judge. This submission was then further refined as a complaint that her Honour’s reasoning process, by which she arrived at her degree of accumulation, was “not identified”. Counsel finally submitted “that the accumulation not identifiably reasoned has led to manifest excess”.

23. In promoting these arguments, Mr Chami drew attention to what was said by Fullerton J when dealing with Mr Chaouk’s appeal to this Court in Chaouk v R [2017] NSWCCA 295 at [62] – [63]:

“Although her Honour was not required to make explicit, or to specify with precision the degree to which the indicative sentences would be accumulated, since to require that of sentencing judges would be tantamount to expressing commencement dates for each offence contrary to one of the rationales for the introduction of s 53A of the Crimes (Sentencing Procedure) Act (see Beale v R [2015] NSWCCA 120 at [4]), having made no assessment of the total criminality reflected in the overall offending, the rationale according to which some or all of the indicative sentences should be partially accumulated was not clear. In addition, there is nothing in the sentencing reasons to illuminate the basis upon which the aggregate sentence of 27 years was assessed as just and proportionate to the overall offending so as to avoid the imposition of a crushing sentence as required in the proper application of the totality principle (see Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 304, 307-308 and 313-314).

While I accept that questions of accumulation and concurrency are intuitive, in this case the relative severity of the individual sentences indicated by the sentencing judge (in particular the sentence of 17 years for the s 33A(1)(a) offence) called for a far greater degree of notional concurrency in the imposition of the aggregate sentence in order to avoid the imposition of a crushing sentence on a relatively young man who had a subjective case that was worthy of some greater weight in mitigation of sentence. In my view, the aggregate sentence is unreasonable and plainly unjust for that reason.”

24. However, in Chaouk, as Mr Chami properly and candidly acknowledged, this Court intervened upon the basis of a totality error in the accumulation of four sentences resulting in an aggregate sentence that was manifestly excessive. Mr Chaouk was sentenced to 17 years imprisonment for a separate shooting committed upon Mr Hunt, who was not one of Mr Chami’s victims and for which offence he was not liable. In re-sentencing Mr Chaouk, this Court, otherwise persuaded of a totality error, determined that a lesser indicative sentence was warranted for that offence, but did not interfere with the indicative sentences for the offences with which Mr Chami was also charged.

25. Quite apart from the question of whether or not, standing alone, it could amount to appellable error for a sentencing judge to fail to give reasons why a particular level or amount of accumulation of sentences was chosen, it is simply not correct in the present case to say that her Honour has failed to do so. As I apprehend Mr Chami’s submissions, he does not cavil with her Honour’s identification of the relevant factors that pointed towards accumulation and those that pointed towards concurrency in this case. Accordingly, short of specifying the extent to which any particular indicative sentence was or may appear to have been accumulated upon any other, which, as Fullerton J correctly observed, is not an obligation that fell upon her Honour, there is little to say for the proposition that her reasoning process was unclear. On the contrary, her Honour specifically, and in my view adequately, identified those matters that she considered were appropriate to take into account. It is not without significance that Mr Chami does not identify or suggest the existence of some other matter or matters that could or should have been considered by her Honour but which she erroneously ignored.

26. This was helpfully reiterated by the Crown in this Court, contending that this was not a case of a sentencing judge having failed properly to expose her reasoning from the perspective of totality. Her Honour set out the relevant factors that she took into account. The Crown observed that no complaint is made that in doing so her Honour took account of an irrelevant factor or that she failed to take account of a relevant one. The Crown in terms embraced the proposition that the whole point of an aggregate sentence was to enable a sentencing judge to approach the exercise as her Honour has done and to avoid the need to state with precision, or indeed at all, what parts of which sentence overlapped with what parts of other sentences.

27. In my view, these grounds of appeal are not made out.

Ground 5

28. It will be apparent that, having regard to the concession that the indicative sentences are not individually excessive, Mr Chami’s contention that the aggregate sentence is manifestly excessive is limited to a demonstration that the degree of accumulation applied by her Honour was erroneous and that she erred in her application of the totality principle. Having rejected Mr Chami’s grounds of appeal formulated on that basis, there is no merit in the contention that the aggregate sentence imposed by her Honour is manifestly excessive.

Orders

29. In the circumstances I would propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

30. DAVIES J: I agree with Harrison J.

**********

Decision last updated: 01 April 2019