Medium Neutral Citation: R v El-Chami [2016] NSWSC 445
Hearing dates: 1 April 2016
Date of orders: 19 April 2016
Decision date: 19 April 2016
Jurisdiction: Common Law - Criminal
Before: Schmidt J
Decision:
Convicted under s 316(1) of the Crimes Act 1900 (NSW).
Sentenced to a term of imprisonment of 3 months commencing on 19 April 2016 which is to be suspended, subject to entering into a good behaviour bond for a term of 3 months and providing the assistance promised.
Catchwords: CRIMINAL LAW – sentence – conceal serious offence – murder – not guilty to murder – plea of guilty to lesser charge accepted – early plea and assistance – problems in police approach to investigation and Crown’s approach to the prosecution regarding CCTV footage – aggravating factors – mitigating factors – deterrence – subjective circumstances – victim impact statement – conviction – suspended sentence
Legislation Cited: Evidence Act 1995 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Cartwright (1989) 19 NSWLR 243
R v CQD [2002] NSWSC 732
R v Crofts (Court of Criminal Appeal (NSW), 10 March 1995, unrep)
R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398
R v Dodd (1991) 57 A Crim R 349
R v Newbold [2008] NSWSC 942
R v Olbrich [1999] HCA 54; (1999) CLR 270
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
R v Scott [2005] NSWCCA 152
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
Category: Sentence
Parties: Regina
Mohamed El-Chami
Representation:
Counsel:
Ms E Wilkins SC (Crown)
Mr R Sutherland SC (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW)
Oxford Lawyers (Offender)

File Number(s): 2013/262361
Publication restriction: No

Judgment

Mr Basem Salameh was murdered at his home in Granville during the early hours of 14 August 2013, having been beaten to death with makeshift weapons, including a piece of timber and metal poles. The offender, Mr El-Chami and two co-accused were later each charged with his murder. Mr El-Chami did not deny having been at Mr Salameh’s home before he was killed, but he always denied having been present, or involved in his murder. Accordingly, he pleaded not guilty to the murder charge.
At the commencement of the trial in November 2015, it was announced to the Court that Mr El-Chami had made an offer to plead guilty to a lesser charge, an offence under s 316(1) of the Crimes Act 1900 (NSW), which had been accepted by the Director of Public Prosecutions. He was then arraigned on that charge, to which he entered a plea of guilty. The charge to which the…

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 El-Chami

Details

AGLC: R v El-Chami [2016] NSWSC 445
Case: [2016] NSWSC 445
Decision Date: 19 April 2016

CaseChat Overview and Summary

The case of R v El-Chami involved the defendant, who had initially been charged with the murder of a victim. After a series of legal proceedings, the defendant pleaded guilty to a lesser charge, which was accepted by the prosecution. The issues before the court involved determining the appropriate sentence for the defendant, considering both aggravating and mitigating factors. The court also had to address concerns regarding the police and prosecution's handling of evidence, particularly CCTV footage, and the impact of these issues on the proceedings.

The court was required to consider various legal principles and factors in determining the sentence. These included the nature and circumstances of the offence, the defendant's culpability, the need for deterrence and retribution, and the potential impact of the sentence on the defendant and society. The court also needed to evaluate the impact of the police and prosecution's handling of the investigation and evidence on the proceedings, and how this might affect the sentence. Additionally, the court had to consider the victim impact statement and its implications for the appropriate penalty.

The court carefully weighed these factors in reaching its decision. It noted the defendant's early plea and the assistance provided, which were mitigating factors that warranted consideration. However, the court also highlighted the seriousness of the underlying offence and the need for deterrence. The court recognised that the police and prosecution's handling of evidence, particularly the CCTV footage, had caused issues, but found that these did not negate the gravity of the defendant's actions. Ultimately, the court decided on a suspended sentence, taking into account the totality of the circumstances, including the subjective factors and the impact on the victim and their family.

The court ordered a suspended sentence for the defendant, reflecting the balance of aggravating and mitigating factors, and the need for both deterrence and consideration of the defendant's personal circumstances. This decision was made with careful deliberation, ensuring that the sentence was proportionate to the offence while also addressing the procedural issues that arose during the investigation and prosecution.

Orders