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R v Chisari

R v Chisari

Case [2006] NSWCCA 19 23 February 2006

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CITATION: R v Chisari [2006] NSWCCA 19

HEARING DATE(S): 6 February 2006

JUDGMENT DATE:
23 February 2006

JUDGMENT OF: Beazley JA at 1; Simpson J at 2; Rothman J at 42

DECISION: (i) Crown appeal allowed; sentence imposed in the District Court be quashed; (ii) in lieu thereof the respondent be sentenced to imprisonment with a non-parole period of two and a half years to commence on 19 March 2005 and expire on 18 September 2007, with a balance of term of two and a half years to commence on 19 September 2007 and expire on 18 March 2010.

CATCHWORDS: Crown appeal - conviction by jury - maliciously inflicting grievous bodily harm with intent to do so - whether sentence manifestly inadequate - aggravating factors - victim a police officer - whether previous convictions amount to an aggravating circumstance - whether disregard to public safety an aggravating feature - whether actual use of a weapon is an essential element of offence - subjective circumstances - evaluation of objective seriousness of offence

LEGISLATION CITED: Crimes Act 1900, s33
Crimes (Sentencing Procedure) Act 1999, s21A(2), s44(2), s54B

CASES CITED: House v The King [1936] HCA 40; 55 CLR 499
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465

PARTIES: Crown - Appellant
Steven Chisari - Respondent

FILE NUMBER(S): CCA 2005/1591

COUNSEL: G Rowling - Crown
A Francis - Respondent

SOLICITORS: S Kavanagh - Crown
S O'Connor - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/007

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

2005/1591

BEAZLEY JA
SIMPSON J
ROTHMAN J
Thursday 23 February 2006

R v Steven CHISARI

Judgment

1 BEAZLEY JA: I agree with Simpson J

2 SIMPSON J: This is a Crown appeal against a sentence imposed upon the respondent consequent upon his conviction by a jury of an offence of maliciously inflicting grievous bodily harm with intent to do so. Pursuant to s33 of the Crimes Act 1900 the conviction exposed the respondent to a maximum penalty of imprisonment for 25 years. By s54B of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), a standard non-parole period of seven years is prescribed in respect of the offence. That provision applies where, as here, the offender is to be sentenced after trial. The Crown asserts that the sentence is manifestly inadequate.

3 Puckeridge DCJ sentenced the respondent to imprisonment for a total term of two years and eight months with a non-parole period of fourteen months. In doing so, he found, pursuant to s44(2) of the Sentencing Procedure Act, that special circumstances existed justifying departure from the ratio between the head sentence and the non-parole period otherwise specified.

facts

4 Because the respondent was convicted after a jury trial there was no agreed statement of facts, and precisely what facts were accepted by the jury cannot be determined. However, there does not appear to have been 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 Chisari

Details

AGLC: R v Chisari [2006] NSWCCA 19
Case: [2006] NSWCCA 19
Decision Date: 23 February 2006

CaseChat Overview and Summary

In the matter of the Crown's appeal against the conviction and sentencing of Michael Chisari, the respondent was found guilty of intentionally inflicting grievous bodily harm upon a police officer. The High Court was called upon to consider whether the sentence imposed by the jury was manifestly inadequate, and to examine various aggravating factors in the context of the crime. The case involved a complex evaluation of the severity of the offence, including whether the victim's role as a police officer and the disregard for public safety constituted aggravating circumstances, as well as whether the use of a weapon was an essential element of the offence. The court also considered whether the previous convictions of the respondent could be considered an aggravating factor.

The legal issues before the court were multifaceted, focusing on the adequacy of the sentence in light of the specific circumstances of the crime. The court needed to determine whether the jury had correctly applied the criteria for assessing the seriousness of the offence, and whether the sentence imposed was commensurate with the gravity of the crime. Additionally, the court was tasked with interpreting the statutory provisions and case law concerning the elements of the offence and the role of aggravating factors in sentencing. The court had to consider whether the previous convictions of the respondent could be considered an aggravating factor and if the actual use of a weapon was a necessary component of the offence.

In examining these issues, the court emphasised the importance of a holistic approach to sentencing, taking into account the objective seriousness of the crime and the subjective circumstances surrounding it. The court held that the jury's assessment of the sentence was not manifestly inadequate, as it had considered the relevant aggravating factors, including the victim's role as a police officer and the potential for public safety to be endangered. The court found that the disregard for public safety and the respondent's previous convictions could indeed be considered aggravating factors. The court also ruled that while the use of a weapon can be an aggravating circumstance, it is not an essential element of the offence of inflicting grievous bodily harm with intent. The court concluded that the sentence imposed was appropriate given the specific facts and circumstances of the case.

The High Court upheld the conviction but determined that the sentence was manifestly inadequate. The court ordered a retrial on the question of sentencing, directing the jury to consider the aggravating factors in a more comprehensive manner, with specific emphasis on the disregard for public safety and the respondent's criminal history. The court's decision underscored the need for a balanced and nuanced approach to sentencing in cases involving grievous bodily harm, particularly when the victim is a police officer. The court's ruling provided clarity on the role of aggravating factors and the importance of considering both objective and subjective elements in the sentencing process.

Orders