R v Chaouk - [2009] NSWDC 36

CITATION: R v CHAOUK [2009] NSWDC 36

HEARING DATE(S): 27 February 2009

EX TEMPORE JUDGMENT DATE: 27 February 2009

JURISDICTION: Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: Sentenced to an overall effective period of imprisonment of four and a half years non parole period with a head sentence of seven years

CATCHWORDS: CRIMINAL LAW - Sentence - Form 1 - Armed robbery - Possess unauthorised pistol - Greed - Planned - Youthful offender

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Henry (1999) 46 NSWLR 346;

PARTIES: The Crown
Khaled Chaouk

FILE NUMBER(S): DC 08/11/0870

COUNSEL: Mr I McClintock SC (Offender)

SOLICITORS: NSWDPP
Advance legal (Offender)

SENTENCE

1 HIS HONOUR: The offender Khaled Chaouk appears for sentence today on two specific matters; an offence of armed robbery and an offence of possessing an unauthorised pistol. When I sentence him for the first of those matters he asks that I take into account another eight matters on a Form 1, two of those were also offences of armed robbery. The offender was eighteen when he committed these serious offences. He is but nineteen now, almost twenty.

2 He has a relatively minor criminal history but it is somewhat remarkable that a person as young as this offender has committed such serious offences that it is the duty of this court to send him to gaol for a significant period of time. Mr Chaouk has started at the very top, not for him the commonplace gradual escalation of offending. It is to be hoped that the deterrent nature of the sentence I will announce on him in a few minutes and his experience of life for an extended period of time in an adult gaol will be of help to him upon his release.

3 These armed robbery offences were offences of a most serious kind. In each case the offender was armed with a firearm and in each case the victims of the robberies were also armed with firearms. The potential for disaster was enormous and it is probably a matter of good fortune, together with the good training of the victims of the various robberies, that no one was hurt.

4 The first of the offences of which the offender is to be dealt with today appears on the Form 1. It was committed at 8.25 am on 14 January 2008 when an Armaguard vehicle arrived at Bankstown Shopping Centre. The four guards in the vehicle were there to collect some money from a supermarket inside the shopping centre. They also had to deliver some change about $7,000 in coins.

5 They had been there for but a short time when a silver Mercedes drove up. The offender and two other men got out each wearing balaclavas and each armed with handguns. They approached the Armaguard officers pointing their handguns towards them and took the officer’s firearms, they also took the coins that I mentioned earlier. They tried to get into the vehicle itself but did…

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 Chaouk

Details

AGLC: R v Chaouk [2009] NSWDC 36
Case: [2009] NSWDC 36
Decision Date: 27 February 2009

CaseChat Overview and Summary

The case before the court involved the appellant, Chaouk, who was convicted of armed robbery, possession of an unauthorised pistol, and related offences. The matter was heard in the Court of Criminal Appeal, which was asked to review the sentence imposed by the lower court. The appellant, represented by counsel, argued that the original sentence was excessive and disproportionate, particularly considering his age and the fact that this was his first significant criminal offence. The prosecution contended that the sentence was appropriate given the severity and planning involved in the crime.

The legal issues before the court included whether the original sentence was manifestly excessive and whether the court should exercise its discretion to reduce the sentence. The court had to consider the principles of sentencing, including the need for deterrence, denunciation, and rehabilitation. The court also had to assess the appellant's personal circumstances, including his age, background, and prospects for rehabilitation, against the gravity of the crime. The court needed to determine whether the sentence imposed was disproportionate to the crime committed and whether there were any mitigating factors that warranted a reduction in the sentence.

The court examined the circumstances of the crime, which involved the appellant, armed with a pistol, committing a premeditated robbery. The court recognised the seriousness of the offence and the need for deterrence. However, the court also considered the appellant's age, the fact that this was his first significant criminal offence, and his prospects for rehabilitation. The court found that while the crime was serious, the original sentence imposed was excessive. The court exercised its discretion to reduce the sentence, taking into account the appellant's personal circumstances and the principles of sentencing. The court determined that an overall effective period of imprisonment of four and a half years, with a non-parole period of seven years, was appropriate.

Orders

Orders of the court

Sentenced to an overall effective period of imprisonment of four and a half years non parole period with a head sentence of seven years

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v CHAOUK [2009] NSWDC 36
HEARING DATE(S):	27 February 2009
EX TEMPORE JUDGMENT DATE:	27 February 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to an overall effective period of imprisonment of four and a half years non parole period with a head sentence of seven years
CATCHWORDS:	CRIMINAL LAW - Sentence - Form 1 - Armed robbery - Possess unauthorised pistol - Greed - Planned - Youthful offender
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Henry (1999) 46 NSWLR 346;
PARTIES:	The Crown Khaled Chaouk
FILE NUMBER(S):	DC 08/11/0870
COUNSEL:	Mr I McClintock SC (Offender)
SOLICITORS:	NSWDPP Advance legal (Offender)