El-Chaar v R

Case [2007] NSWCCA 16

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      El-Chaar v Regina [2007]  NSWCCA 16
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2006/1930

HEARING DATE(S):               24 January 2007

JUDGMENT DATE: 24 January 2007
EX TEMPORE DATE:          24 January 2007

PARTIES:
Joseph El-Chaar (Appellant)
Regina (Respondent)

JUDGMENT OF:       Beazley JA Buddin J Hislop J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          05/11/053

LOWER COURT JUDICIAL OFFICER:     Solomon DCJ

LOWER COURT DATE OF DECISION:    18 November 2005

COUNSEL:
C Pike (Appellant)
L Crowley (Crown)

SOLICITORS:
Commonwealth Director of Public Prosecutions (Crown)

CATCHWORDS:
SENTENCING – whether manifestly excessive sentence imposed – differences in amounts involved in individual offences  not so overwhelming as to require differentiation in sentence
SENTENCING – whether insufficient weight given to motivation for offence – financial difficulties no answer to commission of offence - duress may constitute mitigating factor on sentence – duress taken into account – no error in approach of trial judge in not differentiating offences where duress involved – leading “the high life” as motivation for offence

LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW) s 6(3)
Criminal Code Act 1995 (Cth) ss 11.1, 134.1, 134.1(1)

CASES CITED:
House v The King (1936) 55 CLR 499
Pearce v The Queen (1998) 194 CLR 610
R v Oblach (2005) 65 NSWLR 75
Regina v Liu [2005] NSWCCA 378

DECISION:
Leave to appeal granted
appeal dismissed.

JUDGMENT:

- 15 -

IN THE COURT OF
CRIMINAL APPEAL

2006/1930

BEAZLEY JA
BUDDIN J
HISLOP J

Ex tempore 24 January 2007

Joseph El-Chaar v Regina

Judgment

  1. BEAZLEY JA: On 18 November 2005, the applicant was sentenced to a total period of imprisonment for eight years with a non-parole period of five years in respect of 13 offences, 12 offences being offences of dishonestly obtaining property by deception contrary to s 134.1(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code Act) and one offence of attempting to obtain property by deception contrary to ss 11.1 and 134.1 of the Criminal Code Act.  The maximum penalty for each offence is 10 years imprisonment.

  2. The offences contrary to s 134.1(1) of the Criminal Code Act were committed between 12 March 2003 and 20 February 2004. The offence under ss 11.1 and 134.1 of the Criminal Code Act was committed on 25 March 2004.  The total amount involved in the dishonestly obtaining property by deception offence was $1,000,688.33 (including interest).  The amount involved in the attempted offence was $62,500. 

  3. The applicant pleaded guilty to the offences on 7 June 2005.  However, he had admitted his guilt in relation to the charges in a record of interview with officers from the Australian Taxation Office in June 2004. 

  4. These 13 offences each related to false claims for GST (Goods and Services Tax) refunds made by the applicant to the Australian Taxation Office between the dates referred to above.  During that period the applicant lodged 13 Business Activity Statements in which…

Continue reading El-Chaar v R

Sign in free to access the full text

Details
AGLC
El-Chaar v R [2007] NSWCCA 16
Case
[2007] NSWCCA 16
Decision Date

CaseChat Overview and Summary

In the case of El-Chaar v R, the appellant contested the sentence imposed by the sentencing judge, arguing that it was manifestly excessive and that insufficient weight was given to the evidence of his financial difficulties and the mitigating factor of duress. The appeal focused on the cumulative nature of the sentence, the failure to differentiate between the individual offences, and the sentencing judge's approach to the evidence of duress. The court considered whether the sentencing judge's approach was correct and whether the sentence was manifestly excessive.

The legal issues before the court were whether the sentence imposed was manifestly excessive, whether the sentencing judge failed to differentiate between the individual offences, and whether the sentencing judge gave insufficient weight to the evidence of financial difficulties and duress. The court had to determine whether the differences in the amounts involved in the individual offences warranted a differentiation in the sentence, whether financial difficulties were an adequate excuse for the commission of the offences, and whether the mitigating factor of duress should have been taken into account in the sentencing.

The court found that there were 13 separate charges, each requiring the sentencing judge to consider the specific claim and expenses involved. The court rejected the argument that the offences constituted a single criminal enterprise, and held that the sentencing judge had correctly imposed the same sentence for each offence. The court noted that while the amounts involved in the offences varied, this did not require a differentiation in the sentence. The court also found that financial difficulties were not an adequate excuse for the commission of the offences, and that the mitigating factor of duress had been taken into account by the sentencing judge. The court held that there was no error in the sentencing judge's approach, and that the sentence imposed was not manifestly excessive.

The court dismissed the appeal and affirmed the sentence imposed by the sentencing judge. The court held that the sentencing judge had correctly considered the evidence of duress and financial difficulties, and that the sentence imposed was not manifestly excessive. The court found that the sentencing judge had not erred in failing to differentiate between the individual offences, and that the sentence imposed was appropriate in the circumstances of the case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

As I have already said in respect of ground 3, where no objection was taken to the Statement of Facts, when these matters were raised and no submission was made by the applicant that there was no evidence of actual payment, this ground should be rejected.Ground 6: the learned sentencing judge gave insufficient weight to evidence that the appellant was using proceeds of the crimes to trade out of his financial difficulties No specific submission was put in respect of this ground and I would only comment that it is no answer to the commission of a criminal offence that an offender was in financial difficulties and hoped to use the proceeds of crime to trade out of those difficulties. Nothing further needs to be said about this ground and it is rejected. That leaves grounds 1 and 7 and the matter which still needs to be dealt with from ground 3. Grounds 1 and 7 were as follows:Ground 1: in all the circumstances of the case and upon the grounds listed below the sentence imposed upon the appellant was manifestly excessiveGround 7: the learned sentencing judge erred in sentencing the appellant to cumulative head sentences and in failing to provide for a degree of concurrence in the sentences imposed, given that the appellant’s criminal behaviour could properly be categorised as a single ongoing series of offences Grounds 1 and 7 and the outstanding matter in relation to ground 3 were the matters which were principally advanced in oral argument before the Court. Those submissions can be summarised as follows. It was submitted that although there were 13 offences charged this was in fact a single criminal enterprise commencing when the first claim was made and ending when the thirteenth claim was made. It was submitted that the Crown, had it chosen to do so, could have laid one charge between the dates of the claims which were made. It was submitted that had that been done in circumstances where the maximum penalty for this offence is 10 years, the sentence imposed by his Honour could be viewed as involving a case of the worst possible category when this was clearly not so. In my opinion, this submission does not advance the applicant's case. There were, in fact, 13 separate charges. Each matter had to be dealt with separately by his Honour. There were 13 separate criminal acts each made on a specific occasion, each involving a separate claim and each requiring the applicant to turn his mind on each occasion to the precise claim which was being made and the precise expenses in respect of which the claim was being made. Each act was specific and premeditated. This was not a case, as is often the position where there is a single criminal enterprise, where matters occurred at a time close in point of time and usually part of the same act of criminality. I would reject the arguments made on behalf of the applicant in this regard. The second and third submissions put forward can be dealt with together. They amount to a submission that his Honour failed to differentiate between the different charges. The differentiation, it was said, should have been made in two respects. The first related to the sentences imposed. His Honour imposed the same sentence in respect of each offence notwithstanding differences in the amounts involved. In particular, the first offence involved an amount of just over $20,000 whereas the second offence involved an amount of over $200,000. Those amounts, in turn, were different from the amounts involved in the third to thirteenth offences which involved a more uniform range of claims from about $60,000 to about $90,000.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.