Chehab v The Queen - [2015] NSWCCA 44

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chehab v R [2015] NSWCCA 44
Hearing dates: 13 March 2015
Decision date: 26 March 2015
Before: Macfarlan JA at [1]; Simpson J at [2]; Schmidt J at [53]
Decision:
(1) Grant leave to appeal;
(2) Dismiss the appeal.

Catchwords:
APPEAL - sentencing - aggravated break and enter with intent to commit serious indictable offence (larceny) - parity - whether trial judge failed to give effect to parity assessment - applicant’s role in offence - offence committed whilst on conditional liberty - no error found - appeal dismissed
APPEAL - sentencing - whether sentence manifestly excessive - deemed supply, Drug Misuse and Trafficking Act 1985 (NSW), s 29 - whether possession for personal use - appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, s 21A(2)(j), s 23, s 44(2)
Crimes Act 1900 (NSW), s 113(2)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), s 29
Cases Cited: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Hillier v DPP (NSW) [2009] NSWCCA 312; 198 A Crim R 565
House v The King [1936] HCA 40; 55 CLR 499
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Pilley (1991) 56 A Crim R 202
R v Van Rysewyk [2008] NSWCCA 130
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Smith v R [2011] NSWCCA 163
Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Hussein Chehab also known as Hassan Chehab (Applicant)
Regina (Respondent)
Representation:
Counsel:
A Francis (Applicant)
N Adams (Respondent)
Solicitors:
W Jabakhangi (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/147326; 2012/165846
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

29 November 2013

Before:

Freeman ADCJ

File Number(s):

2012/147326; 2012/165846

Judgment

MACFARLAN JA: I agree with Simpson J.
SIMPSON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 29 November 2013 in respect of two offences. The first offence in time, of which the applicant was convicted after trial, was an offence of supply of a prohibited drug and was committed on 8 May 2012. In respect of this offence, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) the applicant asked that two offences of possession of prohibited drugs (identified on a Form 1) be taken into account. The second offence, of aggravated break and enter with intent to commit a serious indictable offence (larceny), to which the applicant entered a plea of guilty, was committed on 24 May 2012.
The drug offence is subject to a maximum term of imprisonment of 15 years (Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) and s 29); the break and enter offence is subject to a maximum term of imprisonment 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 Chehab v The Queen

Details

AGLC: Chehab v The Queen [2015] NSWCCA 44
Case: [2015] NSWCCA 44
Decision Date: 26 March 2015

CaseChat Overview and Summary

The appellant was convicted of aggravated break and enter with intent to commit serious indictable offence (larceny) and appealed the sentence imposed by the trial judge. The primary contention was whether the trial judge had erred in failing to properly consider the principle of parity in sentencing, particularly in relation to the appellant's role in the offence. The appellant also argued that the sentence was manifestly excessive, and that the conviction should be based on possession for personal use rather than deemed supply under the Drug Misuse and Trafficking Act 1985 (NSW).

The court examined the legal principles surrounding the sentencing process and the role of parity in ensuring that similar offenders receive similar sentences. The court considered the appellant's role in the offence, which was committed while on conditional liberty, and assessed whether the trial judge had adequately taken these factors into account. The court also examined the arguments concerning the excessiveness of the sentence and the interpretation of the deemed supply provision. The court concluded that no error had been made in the application of the parity principle, and that the sentence was not manifestly excessive. The conviction under the deemed supply provision was upheld, rejecting the argument that the possession was for personal use.

In light of the findings, the appeal was dismissed. The trial judge's sentencing decision was affirmed, and the conviction remained intact. The court found that the trial judge had appropriately exercised their discretion, taking into account all relevant factors, including the appellant's role in the offence and the principle of parity. The sentence was deemed appropriate and not manifestly excessive.

Orders