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R v Chidiac

R v Chidiac

Case [2015] NSWCCA 241 9 September 2015

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Chidiac [2015] NSWCCA 241
Hearing dates: 20 August 2015
Date of orders: 09 September 2015
Decision date: 09 September 2015
Before: Bathurst CJ at [1]
Price J at [2]
Beech-Jones J at [53]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against aggregate sentence – whether aggregate sentence manifestly excessive.
Legislation Cited: Crimes Act 1900 (NSW) s 323(a)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(2)(j), 44(2C), 53A, 53A(2)(b), 54B and 54B(4)
Drug Misuse and Trafficking Act 1985 (NSW) ss 24(1), 25(1) and 29
Firearms Act 1996 (NSW) s 7(1)
Cases Cited: Beale v R [2015] NSWCCA 120
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Cullen v R [2014] NSWCCA 162
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Knight v R [2015] NSWCCA 222
Malicki v R; R v Malicki [2015] NSWCCA 162
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
R v Dusan Krstic [2005] NSWCCA 391
Category: Principal judgment
Parties: Roy Chidiac (Applicant)
Director of Public Prosecutions (Respondent)
Representation:
Counsel:
G Brady (Applicant)
T Smith (Respondent)
Solicitors:
S Evans – Michael Croke & Co (Applicant)
C Hyland – Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/486172013/283529
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

15 August 2014

Before:

Colefax SC DCJ

File Number(s):

2012/48617
2013/283529

Judgment

BATHURST CJ: I agree with Price J.
PRICE J: Roy Chidiac (the applicant) pleaded guilty to an indictment that contained four counts. He asked that a further matter on a Form 1 be taken into account on sentence. The applicant also pleaded guilty to two matters that were placed on a s 166 certificate.
Colefax SC DCJ (the judge) sentenced the applicant in the District Court at Parramatta, on 15 August 2014. The judge imposed an aggregate sentence of imprisonment of 7 years 2 months with a non-parole period of 5 years 5 months.
The applicant lodged an appeal that identified four grounds. However, at the commencement of the hearing of the appeal, Grounds 1 and 3 were abandoned. The Grounds of Appeal that remain are as follows:

Ground 2: His Honour erred in imposing an aggregate sentence that reflected a total accumulation of the sentence on count 4.

Ground 4: The aggregate sentence imposed was manifestly excessive.

The Charges

The judge imposed an aggregate sentence for all of the offences pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 53A(2)(b) requires a judge to indicate the sentence that would have been imposed for each offence. Section 44(2C) provides that there is no need to indicate the non-parole period that would have been imposed for each offence, unless it is required by s 54B. The court is obliged by s 54B(4) to make a written record of the non-parole period it would have set,…

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 Chidiac

Details

AGLC: R v Chidiac [2015] NSWCCA 241
Case: [2015] NSWCCA 241
Decision Date: 09 September 2015

CaseChat Overview and Summary

In the case of R v Chidiac, the appellant was convicted of various charges including perjury, obtaining financial advantage by deception, and breaching the Crimes Act. The appeal before the court was against the aggregate sentence imposed by the lower court. The primary issue was whether the aggregate sentence was manifestly excessive and thus warranted intervention by the appellate court.

The court had to consider the principles governing the imposition of aggregate sentences, particularly focusing on whether the sentence was so disproportionate to the offences that it amounted to a miscarriage of justice. The appellant argued that the aggregate sentence failed to reflect the lesser culpability of some of the offences and did not adequately balance the need for punishment with the principles of proportionality and fairness. The prosecution, on the other hand, maintained that the sentence was appropriate given the gravity and multiplicity of the offences committed.

The court examined the individual sentences for each offence, the principles of totality, and the overall proportionality of the aggregate sentence. It found that while the individual sentences were within the range of penalties for each offence, the aggregate sentence, when considered in totality, did not manifestly exceed what was warranted by the nature of the crimes and the need to deter future offences of a similar kind. Therefore, the court concluded that the aggregate sentence was not manifestly excessive and dismissed the appeal. The final orders confirmed the original sentencing and the aggregate sentence imposed by the lower court.

Orders