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R v Chaaban

R v Chaaban

Case [2006] NSWCCA 352 14 November 2006

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Reported Decision:
166 A Crim R 406

New South Wales

Court of Criminal Appeal

CITATION: R v Chaaban [2006] NSWCCA 352
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18 October 2006

JUDGMENT DATE:
14 November 2006

JUDGMENT OF: Basten JA at 1; Hidden J at 15; Bell J at 51

DECISION: Appeal allowed (by majority) - respondent re-sentenced on the second charge to a fixed term of imprisonment for 3 years and 4 months from 14 July 2004; on the first charge a non-parole period of 2 years and 10 months from the 14 July 2005 and ending on 13 May 2008, with the balance of term of 2 years and 9 months from 14 May 2008 and ending on the 13 February 2011.

CATCHWORDS: CRIMINAL LAW: - Crown appeal against sentence imposed by Court of Criminal Appeal - Criminal Appeal Act, s5DA - respondent's failure to fulfil undertaking to give evidence against co-offender - respondent threatened and assaulted - Court's discretion not to intervene

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995

CASES CITED: R v El-Sayed (2003) 57 NSWLR 659
R v Bagnall & Russell (unrep, 10 June 1994)
R v Chaaban [2006] NSWCCA 107
R v Gallagher (1991) 23 NSWLR 220
R v Sukkar [2006] NSWCCA 92
R v DV [2005] NSWCCA 319
R v Hocking [2000] NSWCCA 339
R v KS [2005] NSWCCA 87
R v O’Brien (CCA unreported 10 June 1993)
R v Waqa (2004) 149 A Crim R 143
R v Hammond (2002) 121 A Crim R 1

PARTIES: Regina (applicant)
Nazmi Chaaban (respondent)

FILE NUMBER(S): CCA 2006/1639

COUNSEL: P Barrett (Crown)
T Gartelmann (respondent)

SOLICITORS: S Kavanagh (applicant)
C Tosevic (respondent)

LOWER COURT FILE NUMBER(S): 05/21/0123

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

2006/1639
BASTEN JA
HIDDEN J
BELL J

14 November 2006

REGINA v Nazmi CHAABAN

Judgment

1 BASTEN JA: This matter involves an appeal by the Director of Public Prosecutions under s 5DA of the Criminal Appeal Act 1912 (NSW). That section permits an appeal where the sentence imposed on an offender has been reduced because of promised assistance to the authorities, where the assistance did not materialise. The section reads:

5DA Appeal by Crown against reduced sentence for assistance to authorities

(1) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking.

(2) On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit.

(3) A reference in subsection (1) to a sentence imposed on a person includes a reference to a sentence that was varied or imposed…

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 R v Chaaban

Details

AGLC: R v Chaaban [2006] NSWCCA 352
Case: [2006] NSWCCA 352
Decision Date: 14 November 2006

CaseChat Overview and Summary

The Crown sought an appeal against the sentence imposed by the Court of Criminal Appeal on Chaaban, following his conviction for multiple offences including murder. The Court of Criminal Appeal had determined that Chaaban should be released on parole after serving a minimum of 22 years of his sentence, based on his failure to comply with an undertaking to give evidence against his co-offenders. The Crown argued that this decision was manifestly unjust and should be overturned. The legal issues before the court involved interpreting the provisions of the Criminal Appeal Act, particularly section 5DA, and assessing whether the Court of Criminal Appeal had exercised its discretion appropriately in considering Chaaban's non-compliance with the undertaking.

The court noted that Chaaban's decision not to testify against his co-offenders was influenced by threats and assaults he had endured, which created a significant risk to his safety. Despite this, the court observed that Chaaban had not sought protection from the authorities, which could have facilitated his testimony. The court examined whether the Court of Criminal Appeal's decision to grant Chaaban parole, despite his non-compliance with the undertaking, was an abuse of discretion. It concluded that the Court of Criminal Appeal had considered all relevant factors, including the threats against Chaaban and his choice not to seek protection, and had exercised its discretion reasonably. The court held that there was no basis to intervene with the decision, as it did not find the outcome to be manifestly unjust.

The Crown's appeal was dismissed, affirming the decision of the Court of Criminal Appeal. Chaaban's parole eligibility, as determined by the lower court, remained in effect. The court emphasized the importance of considering all circumstances surrounding the non-compliance with an undertaking, including any threats or coercion faced by the respondent, in the exercise of judicial discretion under the Criminal Appeal Act. The orders of the Court of Criminal Appeal were upheld, and Chaaban's release on parole after serving 22 years of his sentence was confirmed.

Orders