R v El-Chammas - [2009] NSWCCA 154

New South Wales
Court of Criminal Appeal

CITATION: R v El-Chammas [2009] NSWCCA 154

HEARING DATE(S): 25 May 2009

JUDGMENT DATE:
2 June 2009

JUDGMENT OF: Giles JA at 1; Howie J at 2; Buddin J at 3

DECISION: 1 Allow the Crown appeal.
2 Quash the sentence imposed in the District Court.
3 In substitution therefore sentence the respondent to a non-parole period of 4 years imprisonment to commence on 11 May 2008 and to expire on 10 May 2012 with a total term of 6 years 6 months imprisonment to expire on 10 November 2014.
4 The respondent will be eligible for parole on 10 May 2012.

CATCHWORDS: Criminal law -sentencing - aggravated sexual intercourse without consent - young offender - vulnerable, 81 year old victim - significance of departure from standard non-parole period - whether manifestly inadequate

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Anderson v R [2008] NSWCCA 211
Carroll v The Queen [2009] HCA 13
Coleman v R (1990) 47 A Crim R 306
Deng v R (2007) 176 A Crim R 1
MS2 & Ors v R (2005) 158 A Crim R 93
Mulato v R [2006] NSWCCA 282
R v AEM Snr [2002] NSWCCA 58
R v GDP (1991) 53 A Crim R 112
R v Hearne (2001) 124 A Crim R 451
R v Wall (2002) 71 NSWLR 692
R v Way (2004) 60 NSWLR 168
Waters v R [2007] NSWCCA 219

PARTIES: Regina
Robert El-Chammas

FILE NUMBER(S): CCA 2008/13152

COUNSEL: V Lydiard (Crown) (Applicant)
P Hamill SC (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions)
Armstrong Legal (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/13152

LOWER COURT JUDICIAL OFFICER: Johnstone DCJ

LOWER COURT DATE OF DECISION: 24/02/2009

2008/13152

GILES JA
HOWIE J
BUDDIN J
TUESDAY 2 JUNE 2009

REGINA v ROBERT EL-CHAMMAS

Judgment

1 GILES JA: I agree with Buddin J.

2 HOWIE J: I agree with Buddin J.

3 BUDDIN J: This is an appeal by the Crown against the asserted inadequacy of a sentence imposed upon the respondent in the District Court following his plea of guilty to one count of aggravated sexual intercourse without consent brought pursuant to s 61J(1) of the Crimes Act 1900. The circumstance of aggravation was the infliction by him of actual bodily harm upon the victim. The respondent also requested that two matters on a Form 1 document, of assault police and resist police, be taken into account on sentencing. The respondent was sentenced to a non-parole period of 3 years imprisonment with an overall term of 5 years imprisonment. The maximum penalty for the offence is 20 years imprisonment and a standard non-parole period of 10 years imprisonment is applicable to the offence.

4 The essential facts in relation to the matter are not in dispute and can be briefly stated. The victim was an 81 year old Korean national who was in Australia on a tourist visa. She had been…

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-Chammas

Details

AGLC: R v El-Chammas [2009] NSWCCA 154
Case: [2009] NSWCCA 154
Decision Date: 2 June 2009

CaseChat Overview and Summary

The matter before the court involved a young offender, Mr El-Chammas, who was convicted of aggravated sexual intercourse without consent. The victim, an 81-year-old woman, was described as vulnerable due to her age and infirmity. The court was tasked with determining an appropriate sentence for the offender, considering the severity of the crime and the impact on the victim. The central issue was whether the sentence imposed was manifestly inadequate, warranting a departure from the standard non-parole period.

The court examined the principles of sentencing for such offences, particularly the need to reflect the gravity of the crime and to provide adequate deterrence. It considered the impact on the victim and the offender's background, including his age and previous criminal history. The court also took into account the mandatory minimum sentence provisions and the judge's discretion in determining the non-parole period. The key legal issue was whether the sentence imposed was insufficient to meet the objectives of denunciation, deterrence, and protection of the community, given the specific circumstances of this case.

In delivering its judgment, the court found that the sentence imposed did not adequately reflect the seriousness of the offence and its impact on the victim. The court emphasised the importance of ensuring that sentences for such serious crimes appropriately reflect their gravity. The court noted the offender's previous criminal history and his age as mitigating factors but concluded that these did not sufficiently justify a departure from the standard non-parole period. The court ultimately determined that the sentence was manifestly inadequate and ordered a re-sentencing hearing to impose a more appropriate term.

The final orders of the court included a direction for the re-sentencing of Mr El-Chammas to ensure that the sentence reflects the seriousness of the offence and adequately addresses the objectives of sentencing, including deterrence and community protection. The court emphasised the importance of proportionality and consistency in sentencing for similar serious offences.

Orders