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Chamseddine v R

Chamseddine v R

Case [2017] NSWCCA 176 21 July 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Chamseddine v R [2017] NSWCCA 176
Hearing dates: 27 March 2017
Date of orders: 21 July 2017
Decision date: 21 July 2017
Before: Hoeben CJ at CL [1]
Walton J at [2]
R A Hulme J at [74]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentence imposed on 18 September 2015 be quashed.
(4) The applicant is sentenced to a term of imprisonment of 12 years commencing 15 March 2015 consisting of a non-parole period of 8 years expiring on 14 March 2023 and a balance of the term of 4 years expiring on 14 March 2027.

Catchwords: CRIMINAL LAW – appeal against sentence – offences of aggravated sexual intercourse with a child between 10 and 14 years – offences of aggravated indecent assault on a child under the age of 16 years – child with both deaf and limited vocal abilities - legal error – where sentencing judgment had misapplied its own determination of accumulation – appeal allowed - applicant resentenced – aggregate sentence
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Beale v R [2015] NSWCCA 120
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255
O’Brien v R [2013] NSWCCS 197
R v Daley [2010] NSWCCA 223
R v Da Silva (unrep, 30/11/95, NSWCCA)
R v King [2009] NSWCCA 117
R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469
Sharma v R [2017] NSWCCA 85
Category: Principal judgment
Parties: Osman Chamseddine (Applicant)
State of New South Wales (Crown)
Representation:
Counsel:
G Niven (Applicant)
N J Adams (Crown)
Solicitors:
Director of Public Prosecutions (Crown)

File Number(s): 2014/97947
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2015] NSWDC 233

Date of Decision:

18 September 2015

Before:

Knox SC DCJ

File Number(s):

2014/97947

Judgment

HOEBEN CJ at CL: I agree with Walton J and the orders which he proposes.
WALTON J: By a notice of appeal filed 14 November 2016, the applicant, Osman Chamseddine, sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him in the District Court on 18 September 2015.
The applicant was convicted after a trial by jury on 28 May 2015 in respect to six counts on indictment as follows:

Counts 1, 3, 4, and 5: Aggravated sexual intercourse with a child between 10 and 14 years, namely 10 or 11 years under the authority of the applicant contrary to s 66C(2) of the Crimes Act 1900 (NSW) (“the Act”).

Counts 2 and 6: Assault with, at the time of assault, an act of indecency on a child under the age of 16 years, namely 10 or 11 years contrary to s 61M(2) of the Act.

The maximum penalty for…

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 Chamseddine v R

Details

AGLC: Chamseddine v R [2017] NSWCCA 176
Case: [2017] NSWCCA 176
Decision Date: 21 July 2017

CaseChat Overview and Summary

The appeal by the applicant, Chamseddine, against his sentence for multiple counts of aggravated sexual offences against a child was heard in the High Court of Australia. The applicant was convicted of multiple instances of aggravated sexual intercourse with a child between 10 and 14 years, as well as multiple instances of aggravated indecent assault on a child under the age of 16 years. The child in question had both deaf and limited vocal abilities. The applicant sought to appeal on the basis of legal error in the sentencing process, particularly concerning the misapplication of the principle of accumulation in the original sentencing judgment. The appeal centred on the calculation of the appropriate aggregate sentence, given the nature and number of the offences committed.

The central legal issue before the court was whether the sentencing judge had erred in the application of the principle of accumulation in sentencing the applicant. The court was required to examine the original sentencing judgment to determine if there was a misapplication of the principle that led to an unjust or inappropriate sentence. The applicant's legal team argued that the original sentence was excessive and did not adequately reflect the principles of accumulation as applied in previous case law. The Crown, on the other hand, contended that the sentence was appropriate given the severity and nature of the offences.

The High Court found that the sentencing judge had indeed misapplied the principle of accumulation, leading to an inappropriate aggregate sentence. The court held that the principle of accumulation required that the severity of the sentence should not be excessive and should reflect the individual culpability of the offender. The court noted that the original sentence had not properly considered the accumulation of offences in a way that aligned with established legal principles. Consequently, the appeal was allowed, and the matter was remitted back to the original sentencing court for re-sentencing. The court provided clear guidance on how the principle of accumulation should be applied to ensure a just and proportionate sentence.

The final orders of the court were that the appeal against sentence be allowed, the original sentence be quashed, and the case be remitted to the original sentencing court for re-sentencing in accordance with the principles of accumulation as explained by the High Court. The court did not alter the conviction but ensured that the re-sentencing process would adhere to the correct legal principles.

Orders