R v Chami - [2005] NSWCCA 299

CITATION:
R v Chami [2005] NSWCCA 299

HEARING DATE(S): 25 July 2005

JUDGMENT DATE:

16 September 2005

JUDGMENT OF:
Studdert J; Bell J; Latham J

DECISION:
Leave to appeal granted; appeal dismissed.

CATCHWORDS:
Criminal law - application for leave to appeal against sentences - aggravated sexual intercourse without consent (in company) - detention of complainant for advantage - whether errors in findings by sentencing judge - whether sentences manifestly excessive.

LEGISLATION CITED:

Crimes Act, ss 61J, 90A
Criminal Appeal Act, s 6(3)

CASES CITED:
R v AEM Snr; R v KEM; R v MM [2002] NSWCCA 58
R v Gray (1977) VR 225
R v H [2005] NSWCCA 282
R v Hajeid [2005] NSWCCA 262
R v Mahmoud Sanoussi [2005] NSWCCA
R v Mohammad Sanoussi [2005] NSWCCA
R v Bilal Skaf [2005] NSWCCA 297
R v Mohammed Skaf [2005] NSWCCA 298
Siganto v The Queen (1998) 194 CLR 656

PARTIES:
Regina v Mahmoud Chami

FILE NUMBER(S):
CCA 2003/3231

COUNSEL:
D. Arnott (Crown)
P. Byrne SC (Applicant)

SOLICITORS:
S. Kavanagh (Crown)
Andrews Lawyers (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
01/11/1201

LOWER COURT JUDICIAL OFFICER:
Finnane DCJ

2003/3231

STUDDERT J
BELL J
LATHAM J
Friday 16 September 2005

REGINA v MAHMOUD CHAMI

Judgment

1 THE COURT: The applicant, Mahmoud Chami, seeks leave to appeal against sentences imposed by his Honour Judge Finnane QC on 9 August 2002. The applicant had earlier stood trial with three other men, including Bilal Skaf and Mohammed Skaf, arising out of events that occurred on 30 August 2000. The applicant was found guilty on two counts:

(i) detain with intent to hold for sexual advantage;

2 For the detention count, the sentencing judge sentenced the applicant to seven years imprisonment to date from 7 June 2002 and to expire on 6 June 2009. His Honour set a non parole period of three years less two days to expire on 4 June 2005.

3 In respect of the aggravated sexual intercourse, the judge imposed a term of imprisonment of fifteen years to commence on 4 June 2005 and to expire on 3 June 2020. His Honour set a non parole period of seven years six months to expire on 3 December 2012.

4 The applicant’s sentences therefore effectively aggregated eighteen years imprisonment with a non parole period of ten years six months.

5 The offence of detain with intent to hold for sexual advantage is an offence for which s 90A of the Crimes Act (now repealed) was to be treated for the purposes of this case as providing for a maximum penalty of fourteen years. The offence of aggravated sexual intercourse (being in company) was in a category of offence for which s 61J of the Crimes Act provided a maximum penalty of imprisonment for twenty years.

The facts outlined

6 On 30 August 2000 at about 3.00 pm Ms C boarded a train at Belmore intending to go to Lidcombe. She was approached by…

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 Chami

Details

AGLC: R v Chami [2005] NSWCCA 299
Case: [2005] NSWCCA 299
Decision Date: 16 September 2005

CaseChat Overview and Summary

The case of R v Chami involves the appellant who was convicted of aggravated sexual intercourse without consent and of detaining a complainant for advantage. The appellant sought leave to appeal against the sentences imposed by the sentencing judge. The appeal was heard by the court, which had to determine whether there were any errors in the sentencing judge's findings and whether the sentences were manifestly excessive.

The primary legal issue before the court was whether the sentencing judge had made any errors in his findings that would warrant a review of the sentences. The appellant argued that the sentences were manifestly excessive and that the sentencing judge had not properly considered the mitigating factors in the case. The court had to examine the sentencing judge's reasoning and the principles of sentencing to determine whether the sentences were appropriate in the circumstances.

The court found that the sentencing judge had made no errors in his findings and that the sentences were not manifestly excessive. The court noted that the sentencing judge had properly considered the aggravating and mitigating factors in the case and had imposed sentences that were within the range of sentences that could be imposed for such offences. The court held that the appellant's arguments did not demonstrate that the sentences were manifestly excessive and dismissed the appeal.

In conclusion, the court dismissed the appellant's application for leave to appeal against the sentences imposed by the sentencing judge. The court found that the sentences were appropriate in the circumstances and that there were no errors in the sentencing judge's findings. The appellant's appeal was dismissed, and the sentences stood as imposed by the sentencing judge.

Orders