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R v Chaaban

R v Chaaban

Case [2006] NSWCCA 107 7 April 2006

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CITATION: R v Chaaban [2006] NSWCCA 107

HEARING DATE(S): 9 February 2006

JUDGMENT DATE:
7 April 2006

JUDGMENT OF: Hunt AJA at 1; Simpson J at 6; Rothman J at 21

DECISION: (a) Appeal allowed; (b) Respondent resentenced; (c) The sentence of Ellis DCJ be quashed and in lieu thereof the following sentence be imposed: (i) Count 3 - maliciously inflict grievous bodily harm with intent to do so contrary to s.33 of the Crimes Act 1900 on 21 January 2004; fixed term of imprisonment of three years to commence on 14 July 2004 and to expire on 13 July 2007; (ii) Count 1 - specially aggravated break enter and steal, contrary to s.112(3) of the Crimes Act 1900 on 21 January 2004: a non-parole period of two years and six months to commence on 14 July 2005 and to expire on 13 January 2008 with a balance of term of two and a half years to expire on 13 July 2010.

CATCHWORDS: Criminal law - crown appeal - sentencing - manifest inadequacy - specially aggravated break enter and steal - malicious infliction of grievous bodily harm - standard non-parole period - relative criminality - objective criminality - subjective factors

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

CASES CITED: R v Gallagher (1991) 23 NSWLR 220
R v Wall [2002] NSWCCA 42
R v Prasad (2004) 147 A Crim R 385
Dinsdale v The Queen (2000) 202 CLR 321
Johnson v The Queen (2004) 78 ALJR 616
Markarian v The Queen [2005] 8 HCA 25
R v Abboud [2005] NSWCCA 251
R v AA [2006] NSWCCA 55
R v Ponfield (1999) 48 NSWLR 327
R v Henry (1999) 46 NSWLR 346

PARTIES: C: The Queen
R: Nazmi CHAABAN

FILE NUMBER(S): CCA 2005/1836

COUNSEL: C: J A Girdham
R: Mark Higgins

SOLICITORS: C: S Kavanagh, DPP
R: Steve O'Connor, LAC

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0278

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

- 16 -

2005/1836

HUNT AJA
SIMPSON J
ROTHMAN J
7 April 2006

REGINA v Nazmi CHAABAN

Judgment

1 HUNT AJA: The sentences now proposed are, before the 50% discount is taken into account, effectively a full term (or head sentence) of eleven years with a non-parole period of seven years. Such a sentence would fairly be described as being at the lower end of what would have been appropriate in the circumstances of this case were it not for the applicant’s guilty plea and his assistance to the law enforcement authorities.

2 I do not understand why the Crown has not objected to the 50% discount allowed by the sentencing judge. There is always a problem with giving discrete discounts for more than one specific issue for which a discount must be specified in the particular case. A sentencing judge should not ignore the terms of s 23(3) of the Crimes (Sentencing Procedure) Act 1999 (the section dealing with discounts for assistance provided to law enforcement authorities), which provides:

A…

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 107
Case: [2006] NSWCCA 107
Decision Date: 7 April 2006

CaseChat Overview and Summary

The case before the court involved a crown appeal concerning the sentencing of the defendant, Chaaban. The defendant was found guilty of several serious offences, including specially aggravated break enter and steal and the malicious infliction of grievous bodily harm. The sentencing judge imposed a term of imprisonment with a non-parole period of seven years. The Crown sought an appeal, arguing that the sentence was manifestly inadequate. The court was required to determine whether the original sentence was so inadequate that it warranted interference by the appellate court.

The central legal issues before the court were whether the original sentence was manifestly inadequate and, if so, what the appropriate sentence should be. The court had to consider the principles of sentencing for the offences committed, including the standard non-parole period, and assess whether the sentencing judge had adequately taken into account the objective criminality and relative criminality of the offences. The court also needed to evaluate the role of subjective factors in determining the appropriate sentence.

In delivering the judgment, the court held that the original sentence was manifestly inadequate. The sentencing judge had failed to adequately consider the objective criminality of the offences, particularly in relation to the specially aggravated break enter and steal offence. The court noted that the non-parole period of seven years was well below the standard non-parole period for such offences. The court also found that the sentencing judge had not appropriately balanced the relative criminality of the offences against each other. The court proceeded to impose a new sentence of imprisonment with a non-parole period of ten years, reflecting a more accurate assessment of the objective and relative criminality of the offences committed.

Orders