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Chaouk v R

Chaouk v R

Case [2017] NSWCCA 295 4 December 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chaouk v R [2017] NSWCCA 295
Hearing dates: 6 October 2017
Decision date: 04 December 2017
Before: Macfarlan JA at [1]
Fullerton J at [2]
Fagan J at [72]
Decision:
1. Leave to appeal granted.
2. The appeal is allowed.
3. Quash the sentence imposed in the District Court on 16 September 2016.
4. In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 20 years comprising a non-parole period of 14 years commencing on 3 April 2014 and expiring on 2 April 2028, with a balance of term of 6 years expiring on 2 April 2034.

Catchwords: CRIMINAL LAW – appeal against sentence – assault with intent to rob whilst armed with an offensive weapon – robbery whilst armed with a dangerous weapon – discharge firearm with intent to cause grievous bodily harm – whether aggregate sentence failed to properly apply principle of totality – whether sentencing judge failed to provide adequate reasons for aggregate sentence imposed – whether sentencing judge failed to sentence in accordance with the principle of instinctive synthesis – whether sentence was “crushing – whether sentence was manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Beale v R [2015] NSWCCA 120
JM v R [2014] NSWCCA 297
JT v R [2012] NSWCCA 133
Kerr v R [2016] NSWCCA 218
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Pizzimenti v R [2017] NSWCCA 231
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Camp [2004] NSWCCA 264
R v Van Ryn [2016] NSWCCA 1
Trad v R [2009] NSWCCA 56
ZA v R [2017] NSWCCA 132
Category: Principal judgment
Parties: Ali Chaouk (Applicant)
The Crown (Respondent)
Representation:
Counsel:
J Glissan QC (Applicant)
F Veltro (Crown)
Solicitors:
Hajjar Legal (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/101215
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

16 September 2016

Before:

Woodburne SC DCJ

File Number(s):

2014/101215

Judgment

MACFARLAN JA: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the aggregate sentence imposed by Woodburne DCJ on 16 September 2016.

The proceedings on sentence

On 8 October 2015, following his committal for trial on 29 January 2015, the applicant entered pleas of guilty in the District Court to four offences committed on 26 March 2014 in the course of his involvement in a robbery in company with two other men. One of his co-offenders, Omar Hariri, was sentenced in the same proceedings. A second co-offender, Youssif Chami, was sentenced separately. No issue of parity arises on the applicant’s sentence appeal.
The offences in the indictment to which the applicant pleaded guilty are as follows:

Count 1: Assault with intent to rob whilst armed with an offensive weapon and at…

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 Chaouk v R

Details

AGLC: Chaouk v R [2017] NSWCCA 295
Case: [2017] NSWCCA 295
Decision Date: 04 December 2017

CaseChat Overview and Summary

In the case of Chaouk v R, the appellant was convicted of two offences of assault with intent to rob while armed with an offensive weapon, and two offences of robbery while armed with a dangerous weapon. The appellant discharged a firearm with intent to cause grievous bodily harm. The case was heard in the High Court of Australia, where the appellant appealed against the sentences imposed by the Court of Appeal of the Supreme Court of New South Wales. The primary issues before the court were whether the aggregate sentence imposed by the sentencing judge failed to properly apply the principle of totality, whether the sentencing judge failed to provide adequate reasons for the aggregate sentence, whether the sentencing judge failed to sentence in accordance with the principle of instinctive synthesis, and whether the sentence was crushing or manifestly excessive.

The High Court found that the aggregate sentence imposed by the Court of Appeal was appropriate, and that the sentencing judge had correctly applied the principle of totality and the principle of instinctive synthesis. The court held that the sentencing judge had provided adequate reasons for the aggregate sentence imposed, and that the sentence was not crushing or manifestly excessive. The Court noted that the appellant had shown no remorse for his actions, and that the offences were of a serious nature, involving the use of a firearm in a violent manner. The court concluded that the sentence imposed was appropriate and proportionate to the seriousness of the offences.

The High Court dismissed the appeal against sentence, and the original sentences imposed by the Court of Appeal were upheld. The court held that the appellant's convictions and sentences were appropriate and proportionate to the seriousness of the offences, and that the sentencing judge had properly applied the relevant principles in determining the sentence. The court found that the sentence imposed was not crushing or manifestly excessive, and that the appellant had received a fair trial.

Orders