Brereton JA at [1] Bellew J at [34] Campbell J at [98]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentence imposed in the District Court is quashed.
(4) In lieu thereof, the applicant is sentenced to imprisonment for a period of 6 years to date from 1 May 2019 and to expire on 30 April 2025.
(5) Specify a non-parole period of 3 years and 5 months imprisonment commencing on 1 May 2019 and expiring on 30 September 2022.
Catchwords:
CRIMINAL LAW – Offences – Sentence – Appeal – Wounding with intent to cause grievous bodily harm – “Road rage” incident – Whether the injury to the victim was substantial – Where Crown had submitted to the sentencing judge that the injury was not “really serious” – Where that position had apparently been accepted by counsel for the offender – Whether the Crown’s statement amounted to a concession that the injury was not substantial – Where a proper reading of the reasons of the sentencing judge indicated a finding contrary to the position taken by the Crown – Error established – Applicant re-sentenced
Shams Eldine Chemaissem – Applicant Regina - Respondent
Representation:
Counsel: A Francis and R Baldeo – Applicant D Beaufils – Respondent
Solicitors: Mitchell & Co, Lawyers – Applicant C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent
File Number(s):
2019/33959
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
18 December 2019
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.
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AGLC
Chemaissem v The Queen [2021] NSWCCA 66
Case
[2021] NSWCCA 66
Decision Date
CaseChat Overview and Summary
In this case, the applicant, Chemaissem, appealed against his conviction for wounding with intent to cause grievous bodily harm, arising from a road rage incident. The Crown appealed against the sentence. The applicant was sentenced to imprisonment, and the Crown sought a harsher penalty. The appeal focused on whether the sentencing judge correctly assessed the severity of the injury sustained by the victim.
The legal issues in the appeal involved the interpretation of the sentencing judge's findings regarding the seriousness of the victim's injuries. The Crown submitted that the injury was not "really serious," a position apparently accepted by the offender's counsel. However, the court had to determine if this submission amounted to a concession by the Crown that the injury was not substantial. Additionally, the court examined whether the sentencing judge's reasons indicated a finding that the injury was indeed substantial, despite the Crown's position.
The court concluded that the Crown's statement did not amount to a concession regarding the seriousness of the injury. Instead, the sentencing judge's reasons indicated that the injury was substantial. This mischaracterisation of the sentencing judge's findings constituted an error. As a result, the court re-sentenced the applicant, ordering him to serve a period of imprisonment with a specified non-parole period.
No additional final orders were made beyond the re-sentencing of the applicant.