(1) Leave to appeal against conviction and sentence granted.
(2) Appeal against conviction dismissed.
(3) Appeal against sentence allowed.
(4) Sentence imposed at first instance quashed.
(5) In lieu thereof, Haysem Charbaji be sentenced to 34 years imprisonment consisting of a non-parole period of 25 years 6 months, commencing on 14 February 2016 and concluding on 13 August 2041, with a balance term of 8 years 6 months which will expire on 13 February 2050.
Catchwords:
CRIME — Appeals — Appeal against conviction — Application of proviso — where Crown Prosecutor referred to evidence inadmissible against appellants in closing address — where that reference occasioned a miscarriage of justice — whether it occasioned a substantial miscarriage of justice — whether Court of Criminal Appeal satisfied that the guilt of the accused has been proved to the criminal standard
CRIME — Appeals — Appeal against sentence — Manifest excess — where original intention was to commit grievous bodily harm not to kill — place of intention in assessment of objective seriousness of murder
SENTENCING — Relevant factors on sentence — Co-offenders — Parity — where partner in joint criminal enterprise received a lesser sentence than appellant — where main subjective difference between co-offenders was a significant cognitive disorder — whether that subjective difference justified disparity in sentences
[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.
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AGLC
Charbaji v R [2019] NSWCCA 28
Case
[2019] NSWCCA 28
Decision Date
CaseChat Overview and Summary
The case of Charbaji v R involves an appeal against both conviction and sentence. The appellants, Charbaji and his co-accused, were convicted of murder following a violent altercation. The Crown Prosecutor's closing address referred to evidence that was inadmissible against the appellants, which led to a miscarriage of justice. The appellants argued that the reference to inadmissible evidence caused a substantial miscarriage of justice, potentially impacting the safety of their convictions. The Court of Criminal Appeal had to determine whether the guilt of the accused had been proven beyond reasonable doubt, considering the procedural error.
The legal issues before the court included whether the Crown Prosecutor's reference to inadmissible evidence constituted a substantial miscarriage of justice and whether the Court of Criminal Appeal could be satisfied that the guilt of the accused had been proved to the criminal standard. The court also had to assess the place of the appellants' intention in the context of the objective seriousness of the murder and whether the original intention to commit grievous bodily harm, rather than to kill, warranted a different assessment of the offence's seriousness. Additionally, the court examined the disparity in sentencing between the appellants and their co-offenders, particularly in light of a significant cognitive disorder affecting one of the co-offenders.
The Court of Criminal Appeal held that the Crown Prosecutor's reference to inadmissible evidence did not occasion a substantial miscarriage of justice, as the evidence was not central to the outcome of the trial. The court was satisfied that the guilt of the accused had been proven beyond reasonable doubt, despite the procedural error. Regarding the sentencing, the court considered the appellants' original intention and found that it did not significantly mitigate the objective seriousness of the murder. The court also noted the significant cognitive disorder of one of the co-offenders, which justified a disparity in the sentences imposed on the appellants and their co-offenders. The appeal against conviction was dismissed, but the appeal against sentence was upheld, and the matter was remitted to the sentencing court for reconsideration.