R v Abbas Choukeir

[2011] NSWDC 123

District Court

New South Wales

Medium Neutral Citation:	R v Abbas CHOUKEIR [2011] NSWDC 123
Decision date:	24 August 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	For both dangerous driving causing grievous bodily harm offences - a fixed term of 2 years 6 months. For the offence of dangerous driving occasioning death - non parole period of 2 years, balance of the term of 2 years.
Catchwords:	CRIMINAL LAW - sentence - convicted after trial - 1 offence of driving in a manner dangerous occasioning death - 2 offences of driving in a manner dangerous occasioning grievous bodily harm - related offence of driving with prescribed illicit drug - father of family killed - 2 children injured - 30 kilometres per hour over 50 kilometre per hour speed limit in suburban street - victim impact statement - relevance to sentence - evidence of injuries to others - criminal record - traffic record - Veen - on conditional liberty
Legislation Cited:	Crimes Act 1900 s 52A, 52A(1)(c), 52(3)(c) Crimes (Sentencing Procedure Act) 1999 s 21A Road Transport (Safety and Traffic Management) Act 1999 s 11B(1)(a)
Cases Cited:	Regina v Musumeci (NSWCCA unreported 30 October 1997) R v Previtera (1997) 94 A Crim R 76 Regina v Whyte (2002) 55 NSWLR 252 Venn v The Queen No 2 (1998) 164 CLR 465
Category:	Sentence
Parties:	Regina Abbas Choukeir
Representation:	Mr M Coroneos for the offender Mr PM Skinner for the Director of Public Prosecutions Mr S Zahr for the offender Ms LJ Gerber for the Director of Public Prosecutions
File Number(s):	2009/249241

SENTENCE

1. On Sunday 19 May 2009 the El Chami family were all in a car together. They were going to Mrs El Chami's parents' place. They were going along Kennedy Avenue Belmore and reached the intersection of Burwood Road where the driver, Mr Nicholas El Chami, stopped and looked both ways. What happened next changed the course of life for that family forever.

2. Abbas Choukeir was driving his car at at least 30 kilometres per hour over the speed limit of 50 kilometres per hour in Burwood Road. Mr El Chami had proceeded into Burwood Road and Mr Choukeir collided with his car. Mr Nicholas El Chami was killed in the accident. Two of his four children, Sarah El Chami and James El Chami, were seriously injured. Fortunately Mrs Rhonda El Chami and the two other children in the car, Elias and Joanne, were not seriously injured.

3. As a result Abbas Choukeir was charged by the police with three serious offences. One was driving in a manner dangerous causing Mr Nicholas El Chami's death. The other two were driving in a manner dangerous causing grievous bodily harm to Sarah and James El Chami. The crime involving Mr El Chami's death carries a maximum of ten years imprisonment. Each of the crimes involving the serious injuries to Sarah and James El Chami carry a maximum of seven years imprisonment.

4. The Director of Public Prosecutions conducted the case against Mr Choukeir who pleaded not guilty to these three crimes. On 6 July 2011 a jury in a trial, presided over by me, found Mr Choukeir guilty of all three offences.

5. If I have not done so already, I formally convict Mr Abbas Choukeir of all three of those offences.

6. It is now for me to sentence Mr Choukeir for the three crimes. I have heard evidence from the prosecution and the defence and from Mr P Skinner of counsel who conducted the trial and the sentence proceedings as Crown Prosecutor and from Mr M Coroneos of counsel who conducted the trial and the sentence proceedings on behalf of Mr Choukeir. I have briefly described what happened in the accident. I will add a little more detail.

7. Mr Choukeir obviously realised, as he was driving the car along Burwood Road, that he was about to collide with Mr El Chami because the evidence indicated that he braked his car before the collision. He at least had the idea that the collision might occur rather than colliding without any anticipation whatsoever. His skidding was heard by a witness. There was detected in Mr Choukeir's blood some cannabis. It was a very low reading and I cannot be satisfied beyond reasonable doubt that it impaired his driving. I am satisfied beyond reasonable doubt that his speed was at least 80 kilometres per hour. There is evidence suggesting that it was much faster, up to 95 kilometres per hour, but I am content to proceed on the basis that his speed was at least 80 kilometres per hour. Mr Choukeir himself received some injuries and was taken to hospital.

8. Mr Choukeir was arrested and charged some time after this accident. That occurred on 6 November 2009. After he was charged he was on bail until the trial and I accept his bail conditions were quite stringent. He was on bail until last Friday 19 August 2011 when the sentence proceedings were conducted and his sentence will commence on that date.

9. Mrs Rhonda El Chami provided a victim impact statement regarding the impact which these three crimes had on her and her family. She and Mr El Chami had been married for almost 22 years. They were obviously very much in love and she described her husband as a wonderful husband and father who was very responsible and always thought before he acted. As Mrs El Chami said-

"In a split second my life changed, I no longer had a husband, a father for my children. Nicholas will no longer be around to see his children grow up. He never saw Sarah start school and she will never get any more hugs and kisses from her father, from the father that she loved."

All the normal things which the children would do with their father they will have to do without the presence of their father in their lives. There has been a financial impact on the family because one of the main sources of income has been lost as a result of Mr El Chami's death. Mrs El Chami describes the injuries which were sustained to James and Sarah.

10. It is important to say two things about the victim impact statement. First it is difficult for courts to acknowledge but it is very important to acknowledge that a victim impact statement about the death of a family member - such as Mrs El Chami's statement about the death of Mr El Chami - does not affect the sentence which I pass on Mr Choukeir. As the Court of Criminal Appeal said in the case of R v Previtera (1997) 94 A Crim R 76 the " law already recognises, without specific evidence, the value which the community places upon human life ." The court went on to say that it would be " wholly inappropriate to impose a harsher sentence upon an offender because the value of the life lost is perceived to be greater in the one case than it is in the other." Therefore I acknowledge the impact which the death of her husband has had tragically upon Mrs El Chami and her family. The significant maximum sentence which Parliament has fixed to the crime involving her husband's death already takes into account that a member of the community has been killed as a result of this crime.

11. The second thing to say about the victim impact statement is by reference to what Mrs El Chami had to say about the injuries to her two children. The evidence which I take into account in sentencing Mr Choukeir regarding the two crimes involving Sarah and James El Chami is the evidence which was tendered in the trial, namely exhibits L and M. When she was admitted to hospital Sarah El Chami was suffering from decreased air entry, pulmonary contusion, a fractured pelvis and a closed head injury. The report in exhibit L confirms that she had multiple fractures in her pelvis and that there was a suspected pulmonary contusion. So far as James El Chami was concerned, he sustained a closed fracture of his left tibia. He had a hematoma on the forehead and a small haemorrhage in his brain. These were indeed serious injuries to be sustained by children who were under eighteen.

12. It is important in sentencing an offender for the judge to have regard to features which are personal to that offender. That includes an offender's criminal record. In this case Mr Choukeir has a criminal record. He is now twenty-one and was nineteen when he committed these three crimes. He committed minor crimes as a child and then as an adult he was convicted of contravening a domestic apprehended violence order and an assault. He was dealt with for those two offences by a suspended sentence and a bond respectively. He was called up for the breach of those and received intensive correction orders.

13. He had also been convicted of possessing a prohibited drug and - after this offence - convicted of driving whilst his licence was suspended. His licence had been issued in 2006. In 2007 on the same day it appears he attracted two traffic notices for not complying with the conditions of his licence. In 2008 he got two more driving tickets for negligent driving and disobeying a sign. In 2009 he received no fewer than four traffic infringement notices. They were offences such as not giving a signal, overtaking on the left and disobeying signs as well as failing to give way. It appears that the offence of failing to give way, which attracted a fine of over $200, was committed on 14 May 2009 some four days before this accident. Mr Skinner fairly and appropriately described his record as "not that good" but as involving young person's offences.

14. I need to make a number of observations about Mr Choukeir's previous offences. The first is that they do not aggravate the offences themselves. The second is that he does not have a completely clean record so that in my opinion the absence of a clean record means that he cannot claim that in his favour for leniency. The third is that they are, as Mr Skinner said, a young man's offences. He has not committed serious driving offences such as drink driving or offences which have attracted the court's attention, but on the other hand his driving has displayed a degree of carelessness and inattention to the need to be responsible in controlling a car. To my mind this means that to some extent, not a great extent, there should be taken into account by me as the High Court said in Veen v The Queen No 2 (1988) 164 CLR 465 a need to protect the community and some element of personal deterrence for Mr Choukeir.

15. There are two sources of information about Mr Choukeir's personality. One is a presentence report which was prepared on 15 August 2011 by a Probation and Parole officer. Mr Choukeir comes from a close and loving family and has had a good upbringing. He spent some time in his earlier teenage years in Lebanon because of an illness which his mother was suffering. On his return to Australia he began, as the report said, " mixing with unsuitable peers, binge drinking and smoking cannabis. " Mr Choukeir acknowledged to the Probation and Parole officer " the impact of his offending behaviour on the victims, their family and on his own family. He stated that he took responsibility for his behaviour and would accept whatever punishment was handed down by the Court ." The Probation and Parole officer summarised her conclusions as follows -

" Mr Choukeir presents as an intense young man whose formative years were disrupted by his mother's serious illness, subsequent treatments and the relocation of the family to another country and another culture. It would appear that he failed to adjust to the changes imposed on him and sought escape through risk taking behaviour, alcohol and drug use. He nevertheless appears to continue to benefit from the strong support of his family and has reportedly matured and taken responsibility for his offending behaviour ."

16. There has also been tendered by Mr Coroneos on behalf of Mr Choukeir a report from a consultant forensic psychologist, Tim Watson-Munro. Mr Watson-Munro found that there was a " high level of psychological distress " which Mr Choukeir was suffering. Mr Watson-Munro said it was clear that Mr Choukeir was " suffering severe depression, ongoing anxiety, hypervigilance to danger, very low self esteem, sleep disturbance, diurnal variation of mood and a sense of despair regarding the future ." Mr Watson-Munro was of the opinion that treatment was warranted. He thought that " Mr Choukeir had been severely traumatised as a child when he was sent to Lebanon at the age of ten years ." It was associated with a serious condition which his mother was then suffering. Mr Watson-Munro concluded that " with appropriate treatment, supervision and structure in his life his overall prognosis from a forensic perspective is positive ." Mr Watson-Munro was more guarded in terms of his clinical situation in the setting of the magnitude of what has occurred.

17. I have taken into account a series of character references which Mr Coroneos has tendered which indicate that Mr Choukeir is well regarded by his friends, family and within the community. Some of them noted the impact which the crimes have had on Mr Choukeir pointing out that he was genuinely remorseful or incredibly remorseful. I accept this as evidence of Mr Choukeir's remorse along with the references to that in the other reports. As Mr Coroneos realistically acknowledged it is not also supported by sworn or affirmed evidence from Mr Choukeir. Nevertheless it is clear that he is remorseful for what has happened and accepts responsibility for his actions and for the impact which it has had on others. He is keen to develop his education and training and has been in employment.

18. One thing which is important to observe is that when Mr Choukeir committed these crimes he had been to Court about a week earlier where he had received the suspended sentence and the bond for contravening the apprehended violence order and for the common assault. These had been committed on 3 May 2009, about two weeks before the crimes I am sentencing him for. The significance of this is that when Mr Choukeir committed the crimes that I am sentencing him for he was on conditional liberty. That means that a Court instead of sending him to gaol for contravening the apprehended domestic violence order and for the assault had let him free into the community on the condition that he behave himself. Despite that it would appear that on 14 May 2009 he had failed to give way and then on 17 May 2009 he committed these crimes.

19. I accept, as Mr Coroneos correctly pointed out, that the crimes that he was on conditional liberty for are not of the same type as this serious offending. Nevertheless he was at large in the community on the promise to the Court that he would behave himself. Despite that promise he had obviously taken some cannabis - I repeat I do not accept it impaired his driving - and was driving at 30 kilometres per hour above the speed limit along a suburban road which had intersections where other cars were entering such as the El Chami's car.

20. Mr Coroneos provided detailed and very helpful written submissions. He addressed the factors contained in s 21A of the Crimes (Sentencing Procedure) Act 1999. I have already indicated what my position is so far as Mr Choukeir's previous record.

21. I agree with Mr Coroneos that here the emotional harm loss or damage caused by the offence could not be described as substantial. I immediately add that it was obviously substantial so far as the family and the victims were concerned. The word " substantial " used in the legislation that I am referring to means significantly over and above the normal tragic results which follow from crimes such as the ones which Mr Choukeir committed. Those results are encompassed by the maximum sentences which Parliament fixes and are therefore taken into account when I fix the sentences. I agree with him that there is also encompassed in the penalties fixed by Parliament the fact that the offences were committed without regard for public safety and that is not an additional aggravating feature. I agree with him that there are here three offences that I am sentencing him for so I do not take into account the aggravating factor which the legislation encompasses that an offence involved multiple victims or a series of criminal acts.

22. Mr Choukeir was regarded well as I have said amongst his friends, family and within the community so he can be regarded as a person of good character qualified as that is by his driving record.

23. I regard his prospects of rehabilitation as good although I regard whether or not he is likely to re-offend as guarded.

24. General deterrence is obviously very important so far as these crimes are concerned and I have particular regard to what the Court of Criminal Appeal said in Regina v Musumeci (NSWCCA unreported 30 October 1997). As Hunt CJ at CL said in that case there is a need for public deterrence in this type of case. Such is that need that " the youth of any offender is given less weight as a subjective factor than in other types of cases ." Courts must " tread wearily in showing leniency for good character in such cases."

25. Both Mr Skinner and Mr Coroneos devoted some time to the guideline judgment of the Court of Criminal Appeal in Regina v Whyte (2002) 55 NSWLR 252. In Whyte , the Court of Criminal Appeal referred to a frequently recurring case of an offence under s 52A of the Crimes Act 1900 which, if I have not mentioned, these offences were committed under. The death of Mr El Chami was an offence against s 52A(1)(c) of the Crimes Act and the offences involving Sarah and James El Chami were against s 52A(3)(c) of the Crimes Act . Returning to the frequently recurring cases, they involve a young offender as Mr Choukeir is and they involve a person of good character with no or limited prior convictions.

26. I accept that he is of good character but he is not a person with no prior convictions. His prior convictions are limited to traffic infringements and I have already made my observations about those. The offences obviously involve the death of Mr El Chami and serious injuries to two of his children. The El Chami family was not known to Mr Choukeir. There was limited injury to Mr Choukeir himself and I accept that he was genuinely remorseful. However he did not plead guilty. He defended the trial. It is very important for judges to make clear that an offender does not have their sentence increased because they choose to defend a charge. What they lose is the discount which a judge will allow in a sentence for an offender saving the Court system, the community and the victims of crimes what is involved in a defended trial. Mr Choukeir will not have the benefit of that discount. Mr Coroneos argued that the issues in the trial were limited. He is right but the issue was a very important and significant one, namely whether the manner of his driving involving the speed alleged, amounted to dangerous driving. The trial involved some days and required Mrs El Chami and one of her daughters to give evidence as well as police and experts.

27. There are certain factors referred to in Whyte's case by the Court at [216], which Mr Skinner and Mr Coroneos addressed. Here the degree of speed was at least thirty kilometres per hour above the fixed limit of fifty kilometres per hour. It was a busy suburban street. There were other streets that came on to Burwood Road. The sort of accident which Mr Choukeir caused was just the kind of tragic result which can happen when people drive at the sort of speed he was doing along a busy suburban road such as where the accident happened.

28. He was driving with cannabis in his blood. Mr Skinner fairly acknowledged, it did not involve any impairment and I accept that. It is relevant to take into account that Mr Choukeir was choosing to drive at the time when he must have known that he had been taking cannabis. I would not describe his driving as erratic, although it was clearly dangerous. Nor was the driving competitive nor did it involve showing off. He was not ignoring warnings and the distance was relatively short.

29. Mr Coroneos argued that the seriousness of the offence could be regarded as low to medium range and Mr Skinner argued that it was more like medium. Mr Coroneos acknowledged that the offence was more likely in the medium range for offences of this kind.

30. I should say that it is clear to me that no other sentence than imprisonment would be appropriate for these crimes.

31. There are expressions used in Whyte such as " abandonment of responsibility " and " high moral culpability ". As the authorities say these are useful expressions but they are necessarily flexible and they are not meant to be terms of art. I regard the way in which Mr Skinner and Mr Coroneos expressed the level of seriousness of the offences - as being medium kinds of offences for this crime - as appropriate. The speed was significant, as I have said and the place where the driving occurred was likely to put people at risk. I must also take into account - but not as it affects the seriousness of the offence itself - that Mr El Choukeir was on conditional liberty at the time that the crimes were committed.

32. Taking all those factors into account I regard an overall sentence of five years imprisonment as appropriate and a non-parole period of three years as appropriate. The individual sentences will be accumulated by some six months to take into account the different crimes that Mr Choukeir has committed. I am going to sentence you now Mr Choukeir.

33. For charge number 2 of dangerous driving causing grievous bodily harm to Sarah El Chami, I sentence you to two and a half years imprisonment. That will commence on 19 August 2011 and expire on 18 February 2014. That is a fixed term.

34. For the offence of driving dangerous causing grievous bodily harm to James El Chami, I sentence you to two and a half years imprisonment. That will commence on 19 February 2012 and expire on 18 August 2014. That is also a fixed term.

35. For the offence of dangerous driving causing the death of Nicholas El Chami, I sentence you to four years imprisonment. That will commence on 19 August 2012. The non-parole period will be two years commencing on 19 August 2012. That will expire on 18 August 2014. The balance of the term will be two years commencing on 19 August 2014 and expiring on 18 August 2016.

36. I find special circumstances for the non-parole period, which would normally be seventy-five per cent of the overall sentence, being less than seventy-five per cent. Those special circumstances are your age, the fact that you are for the first time in prison and the fact of the effects of the accumulation of the sentences. The first date on which it appears to me that you are eligible for parole will be 18 August 2014.

HIS HONOUR: Have a seat, Mr Choukeir. Ms Gerber and Mr Zahr, first, have I got the figures right and secondly, are there any other matters of fact or law which could be dealt with under s 43 correcting any errors? There's an additional charge or something, so we'll deal with that separately. First the figures and secondly any corrections or errors. Take your time.

ZAHR: Would your Honour repeat sequence 2 in relation to the dangerous driving occasioning grievous bodily harm in relation to Sarah El Chami?

HIS HONOUR: The sentence regarding count 2, Sarah El Chami, two and a half years commencing last Friday 19 August 2011, expiring on 18 February 2014. That's a fixed term. The sentence count 3 for James El Chami, two and a half years commencing six months from now so to speak or from last Friday, commencing 19 February 12, expiring 18 August 14. That's a fixed term. The sentence regarding the death of Mr Nicholas El Chami, four years with a non-parole commencing - and that commences 19 August 2012, one year from last Friday and it overall expires 18 August 2016. Non-parole period expires 18 August 2014, which is the first date it seems to me Mr Choukeir is eligible for parole.

GERBER: There is just the matter of the 166 certificate.

HIS HONOUR: We'll come to that, I just want to first be sure that the figures are right.

ZAHR: They seem to be correct.

GERBER: Yes your Honour.

HIS HONOUR: Are there any matters of fact or law that I should deal with under s 43?

GERBER: No your Honour.

ZAHR: No your Honour.

HIS HONOUR: It's a related offence, is that right, that's what we thought.

GERBER: Yes your Honour, it's sequence 6.

HIS HONOUR: It's count 006 and driving with illicit drug, is that right?

GERBER: Correct your Honour.

HIS HONOUR: I heard submissions. Maximum ten penalty units and I can deal with it under s 10A or a fine. I have in mind a fine of $100. Does either of you wish to be heard on that Ms Gerber or Mr Zahr?

GERBER: I don't wish to be heard.

ZAHR: No, your Honour.

37. In respect of the related offence of driving with the prescribed illicit drug present contrary to the Road Transport (Safety and Traffic Management) Act 1999 s 11B(1)(a), Mr Choukeir is convicted and fined $100.

HIS HONOUR: In a moment I'll just make sure that Mr Choukeir understands the sentences. I'll just provide the exhibits back to my associate, the trial exhibits and the sentence exhibits and the indictments. Mr Zahr, the Corrective Services people say that it is very helpful for a person who is going into custody if Corrective Services have any psychological material. In this case you can assume they have the presentence report. In this case we have Mr Watson-Munro's report and I'd normally arrange for my associate to email or fax such material to the relevant officer. Do you want me to do that in this case? Do you want to get instructions? That's fine if you like.

ZAHR: I can get some instructions, your Honour.

HIS HONOUR: Go ahead, I've got things to do here. The idea is it helps in his classification. Now that he's sentenced he has to be classified and when they're classifying people, if they've got material from a psychologist or a psychiatrist or a doctor which indicates any conditions that they have or particular needs that they have, the classification people that assists them, gives them a lot of background.

ZAHR: My instructions are that he does not wish to proceed with that course of action.

38. Your overall sentence is five years. There is a minimum of three years that you must serve. It commenced last Friday when you went into custody and therefore it expires on 18 August 2014 and the first date that you'll be eligible for parole is 18 August 2014 and that's a matter for the Parole Authority whether or not your get parole. Do you understand that?

OFFENDER: Yes, your Honour.

HIS HONOUR: Do you want some time with your family? The Corrective Services are in charge of you, not me, but if you want some time with your family they may allow you just a minute or two after I go off the bench.

I'll now adjourn. **************

Decision last updated: 08 September 2011