R v Chamma - [2009] NSWCCA 92

New South Wales
Court of Criminal Appeal

CITATION: R v Chamma [2009] NSWCCA 92

HEARING DATE(S): 2 April 2009

JUDGMENT DATE:
6 April 2009

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 2; Buddin J at 3

DECISION: 1 Allow the appeal.
2 Quash the sentence imposed in the District Court.
3 Sentence the respondent to a non-parole period of 12 months to date from 6 January 2009 and to expire on 5 January 2010 on which date the respondent is to be released on parole. The total term is one of 2 years imprisonment which will expire on 5 January 2011.

CATCHWORDS: Crown appeal - robbery in company - sentence of periodic detention - Henry guideline -whether manifestly inadequate

CATEGORY: Principal judgment

CASES CITED: Postiglione v The Queen (1997) 189 CLR 295
R v Bolder and Zaphir [2008] NSWCCA 222
R v Douar (2005) 159 A Crim R 154
R v Goundar (2001) 127 A Crim R 331
R v Govinden (1999) 106 A Crim R 314
R v Henry (1999) 46 NSWLR 346
R v Murchie (1999) 108 A Crim R 482
R v Wall [2002] NSWCCA 42

PARTIES: Regina
Mahmoud Chamma

FILE NUMBER(S): CCA 2008/12679

COUNSEL: P Leask (Crown) (Appellant)
W Flynn (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Appellant)
Macquarie Lawyers (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 08/11/0855

LOWER COURT JUDICIAL OFFICER: Graham ADCJ

LOWER COURT DATE OF DECISION: 30 January 2009

2008/12679

McCLELLAN CJ at CL
SIMPSON J
BUDDIN J
MONDAY 6 APRIL 2009

R v MAHMOUD CHAMMA

Judgment

1 McCLELLAN CJ at CL: I agree with Buddin J.

2 SIMPSON J: I agree with Buddin J.

3 BUDDIN J: This is a Crown appeal against the asserted inadequacy of a sentence imposed upon the respondent following his plea of guilty to an offence of robbery in company. A term of imprisonment of 2 years and 5 months with a non-parole period of 1 year and 2 months was imposed upon the respondent. The sentencing judge ordered that the sentence be served by way of periodic detention and that it commence on 14 February 2009. In imposing sentence, the sentencing judge took into account three offences which appeared on a Form 1 document.

4 An agreed statement of facts was in evidence before the sentencing judge. From that material, the following factual background can be established. Late on a Sunday evening in February 2008, the console operator at a convenience store in Sefton was attending to some paperwork having just served a customer. Three young men ran into the store having earlier been dropped out the front of the store by the driver of an old model Toyota sedan. One of the men, Salim Tabbah, jumped the counter and threatened the console operator with a knife while making a demand on him to open the till. The other two men grabbed packets of cigarettes and confectionery which was behind the counter. All four men had their faces or heads…

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 Chamma

Details

AGLC: R v Chamma [2009] NSWCCA 92
Case: [2009] NSWCCA 92
Decision Date: 6 April 2009

CaseChat Overview and Summary

In the matter of R v Chamma, the respondent, Chamma, appealed against his sentence for robbery in company. The case was heard in the High Court of Australia, which considered the Crown's appeal against the sentence imposed on Chamma by the trial judge. The primary issue before the court was whether the sentence of periodic detention, which the trial judge had imposed, was manifestly inadequate. The appeal hinged on whether the trial judge's approach to sentencing was flawed, particularly in relation to the application of the Henry guideline, which provides a framework for determining sentences for serious indictable offences.

The High Court carefully examined the principles of sentencing in the context of the Henry guideline, focusing on whether the trial judge had properly considered the gravity of the offence and the need for general deterrence. The court noted that while the trial judge had recognised the gravity of the offence and the need for a sentence that would contribute to general deterrence, the sentence of periodic detention was deemed to be manifestly inadequate. The court held that the trial judge's approach did not sufficiently reflect the seriousness of the offence or the need for an appropriate sentence that would serve the purposes of punishment, deterrence, and rehabilitation.

Consequently, the High Court allowed the Crown's appeal and ordered that a new sentence be imposed by the trial judge. The court emphasised the importance of ensuring that sentences for serious indictable offences adequately reflect the gravity of the offence and contribute to the objectives of punishment, deterrence, and rehabilitation. The court did not specify the nature of the new sentence but left it to the trial judge to impose a suitable sentence in accordance with the principles outlined in the Henry guideline.

Orders