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R v Osman Chamseddine

R v Osman Chamseddine

Case [2015] NSWDC 233 18 September 2015

Criminal Liability

Aggravated Sexual Intercourse

Aggravated Indecent Assault

Vulnerable Victims

Sentencing

Criminal Law

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District Court

New South Wales

Case Name:	R v Osman Chamseddine
Medium Neutral Citation:	[2015] NSWDC 233
Hearing Date(s):	14 May – 28 May 2015
Date of Orders:	18 September 2015
Decision Date:	18 September 2015
Jurisdiction:	Criminal
Before:	Knox SC DCJ
Decision:	Sentenced to an aggregate period of imprisonment 15 years with a non-parole period of 10 years
Catchwords:	CRIMINAL LAW – sentence – (x4) aggravated sexual intercourse with a child between the age of 10 and 14 years, and (x2) aggravated indecent assault of a child under the age of 16 years – bus driver: child under authority: hearing impaired victim – harm to victim – difficulty in assessing – offences against vulnerable children – no exceptional hardship to offender's family – no remorse or contrition
Legislation Cited:	Section 66C(2), and section 61M(2) of the Crimes Act 1900 (NSW)
Cases Cited:	R v Muldoon (unrep, 13/12/90, NSWCCA), R v Sea (unrep, 13/8/90, NSWCCA) per Badgery-Parker J, R v T (1990) 47 A Crim R 29, R v Campbell [2005] NSWCCA 125, R v PGM [2008] NSWCCA 172, Corby v R [2010] NSWCCA 146, and GSH v R ; R v GSH [2009] NSWCCA 214, GAT v R [2007] NSWCCA 208 at [22], R v Hibberd (2009) 194 A Crim R 1 at [56], R v Da Silva (unrep, 30/11/95, NSWCCA), per Grove J at [3], R v King [2009] NSWCCA 117 at [36], R v Yates (1984) 13 A Crim R 319 at 326; [1985] VR 41 at [48]; R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159, R v TAB [2002] NSWCCA 274; R v BJW (2000) 112 A Crim R 1, Huynh v R [2015] NSWCCA 167, R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23 at [13] – [17]; R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265 at [93], R v Dennis (unrep, 14/12/92, NSWCCA), R v Johnson (unrep, 16/5/97, NSWCCA), R v Holyoak (1995) 82 A Crim R 502, R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27], R v GSH [2009] NSWCCA 214 and Wray v R [2014] NSWCCA 166, R v Jurisic (1998) 45 NSWLR 209 at 227; R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [52]; and Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [31]
Category:	Sentence
Parties:	Regina (Crown) Osman Chamseddine (Accused)
Representation:	Crown Advocate: Mr Metcalfe Accused: Mr Crawford - Fish
File Number(s):	2014/97947
Publication Restriction:	Order restricting the name and any other material tending to identify the victim or members of her family pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW)

Judgment

CHARGES

On 28 May 2015, Osman Chamseddine (“the offender”) was convicted by a jury following a trial at Parramatta on four counts of aggravated sexual intercourse with a child between 10 and 14, and…

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 Osman Chamseddine

Details

AGLC: R v Osman Chamseddine [2015] NSWDC 233
Case: [2015] NSWDC 233
Decision Date: 18 September 2015

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of R v Osman Chamseddine involved the sentencing of the respondent, Osman Chamseddine, for multiple serious offences against children. Chamseddine, a bus driver, was convicted of four counts of aggravated sexual intercourse with a child aged between 10 and 14 years, and two counts of aggravated indecent assault of a child under the age of 16 years. The victims were under his authority as their bus driver, and one of the victims was hearing impaired, which compounded the harm caused by the offences. The court was tasked with determining an appropriate sentence that reflected the gravity of the crimes committed against vulnerable children.

The primary legal issue before the court was the assessment of harm caused to the victims and the appropriate sentence for the respondent. Given the nature and number of offences, the court considered the principles of deterrence, denunciation, and rehabilitation. The court also took into account the lack of exceptional hardship to the offender's family, as well as the absence of remorse or contrition from the offender. The court recognised the particular vulnerability of the victims and the need to protect the community from further harm by the respondent.

The Supreme Court, in delivering its judgment, emphasised the severe nature of the offences and the profound impact on the victims. The court determined that an aggregate sentence of 15 years imprisonment, with a non-parole period of 10 years, was appropriate. This sentence aimed to reflect the gravity of the crimes and to provide adequate deterrence and denunciation, while also considering the potential for rehabilitation of the offender. The court did not find any exceptional circumstances that would warrant a lesser sentence, and thus upheld the severity of the punishment in line with the principles of justice for such offences.

The final orders of the court were that Osman Chamseddine be sentenced to an aggregate period of imprisonment of 15 years with a non-parole period of 10 years. This sentence was designed to appropriately reflect the harm caused to the victims and to uphold the principles of justice in cases involving the sexual abuse of children.

Orders

Orders of the court

Sentenced to an aggregate period of imprisonment 15 years with a non-parole period of 10 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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Citations

R v Osman Chamseddine [2015] NSWDC 233

Most Recent Citation

Chamseddine v R [2017] NSWCCA 176

Cases Citing This Decision

Chamseddine v R [2017] NSWCCA 176
Citation 1

…(s): 2014/97947 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2015] NSWDC 233 Date of Decision: 18 September 2015 Before: Knox SC DCJ File Number(s): 2014/97947…

See all citing cases →

Cases Cited

Huynh v R [2015] NSWCCA 167
Citation 1 (Para 2)

…I refer to the recent case of Huynh v R [2015] NSWCCA 167 per Davies J, in particular the need to read that consideration consistently with the common law so that it is necessary for the offender to show exceptional hardship to a third party to ameliorate an otherwise appropriate sentence: R v Togias [2001] NSWCCA 5…
RL v R [2015] NSWCCA 106
Citation 2 (Para 8)

…I have considered the case of RL v R [2015] NSWCCA 106 and find that at least from the second occasion, the offences also must have involved a level of premeditation and planning, given that the victim was taken to a remote location.…
Sabra v R [2015] NSWCCA 38
Citation 3 (Para 4)

…ng factor where it has resulted in significant stress for the offender, or left him or her, to a significant degree, in uncertain suspense: Sabra v R [2015] NSWCCA 38. However I am not aware of whether the offender has suffered anxiety or stress over and above what is normally the case for someone awaiting trial.…
EG v R [2015] NSWCCA 21
Citation 4 (Para 1)

…Defence counsel also relies on EG v R [2015] NSWCCA 21 at [28] – [31], as to the Victim Impact Statement and the Crown submission that the harm suffered is greater than could normally be established.…
Wray v Regina [2014] NSWCCA 166
Citation 5 (Para 1)

…out in the Public Defenders website. In particular with respect to counts 2 and 6, I have considered GSH v R ; R v GSH [2009] NSWCCA 214 and Wray v R [2014] NSWCCA 166.…
SW v R [2013] NSWCCA 255
Citation 6 (Para 5)

…rtant that the sentence recognises the harm done to the victim, Ms MP, the extent of which may only fully come to light in her later years. In SW v R [2013] NSWCCA 255, it was said that sexual abuse of children of very tender years will inevitably give rise to psychological damage emanating from (at least) the confu…
R v Zerafa [2013] NSWCCA 222
Citation 7 (Para 2)

…p to a third party to ameliorate an otherwise appropriate sentence: R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23 at [13] – [17]; R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265 at [93].…
O'Brien v R [2013] NSWCCA 197
Citation 8 (Para 4)

…As was said in O’Brien v R [2013] NSWCCA 197 per Adamson J, a case involving the sexual abuse of a girl by an offender who had befriended her family, the offender’s good character was not used favourably towards the offender, as he had “used his good character to gain access to the victim and to gain her trust”. The…
MH v R [2011] NSWCCA 230
Citation 9 (Para 5)

…Further, I do not find that the short duration of the offences is a factor that reduces the seriousness of the offending: MH v R [2011] NSWCCA 230. Rather, I consider the offences to have been short in duration only because of the time constraints that the offender was under, in dropping the victim off at home from…
Muldrock v The Queen [2011] HCA 39
Citation 10 (Para 4)

…d in the sentences which courts impose: R v Jurisic (1998) 45 NSWLR 209 at 227; R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [52]; Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [31].…
NW v The Queen [2011] NSWCCA 178
Citation 11 (Para 2)

…I have also had regard to the comparable sentences for counts 1, 3, 4 and 5, including NW v R [2011] NSWCCA 178. In that case, the offender pleaded guilty and was sentenced for one count of s 66C(2). There were further matters taken into account on a Form 1, namely, a further s 66C(2) offence of aggravated sexual in…
Corby v R [2010] NSWCCA 146
Citation 12 (Para 4)

…e worst category of the range of possible offences for aggravated indecent assaults”. I have also considered R v PGM [2008] NSWCCA 172, Corby v R [2010] NSWCCA 146, and GSH v R ; R v GSH [2009] NSWCCA 214. As these cases suggest, it is of considerable significance when assessing the objective seriousness in the inde…
GSH v R; R v GSH [2009] NSWCCA 214
Citation 13 (Para 4)

…offences for aggravated indecent assaults”. I have also considered R v PGM [2008] NSWCCA 172, Corby v R [2010] NSWCCA 146, and GSH v R ; R v GSH [2009] NSWCCA 214. As these cases suggest, it is of considerable significance when assessing the objective seriousness in the indecent assault of a child to consider the a…
R v King [2009] NSWCCA 117
Citation 14 (Para 3)

…[56]; R v Da Silva (unrep, 30/11/95, NSWCCA), per Grove J at [3]. I do, with respect, adopt the reasoning of the Court of Criminal Appeal in R v King [2009] NSWCCA 117 at [36], where it was held: “What is to be considered is the type of penetration in all the circumstances surrounding the offending. The type of pene…
R v PGM [2008] NSWCCA 172
Citation 15 (Para 4)

…that case as being “within the worst category of the range of possible offences for aggravated indecent assaults”. I have also considered R v PGM [2008] NSWCCA 172, Corby v R [2010] NSWCCA 146, and GSH v R ; R v GSH [2009] NSWCCA 214. As these cases suggest, it is of considerable significance when assessing the obje…
GAT v R [2007] NSWCCA 208
Citation 16 (Para 3)

…usness in the indecent assault of a child to consider the actual character of the assault, including the degree of physical contact involved: GAT v R [2007] NSWCCA 208 at [22], the degree of genital connection, the duration of the contact, and age difference between the offender and the victim. Here, there was no th…
R v MAK [2006] NSWCCA 381
Citation 17 (Para 1)

…ruction of any reasonable expectation of useful life after release: R v Yates (1984) 13 A Crim R 319 at 326; [1985] VR 41 at [48]; R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159. The Court of Criminal Appeal (Spigelman CJ, Howie and Whealy JJ) said in R v MAK; R v MSK at [17] that in many cases of multi…
Regina v Campbell [2005] NSWCCA 125
Citation 18 (Para 4)

…In relation to counts 2 and 6 (indecent assault), I have considered this case against other cases of this nature, including R v Campbell [2005] NSWCCA 125, a case where Hulme J at [31] refers to the offences in that case as being “within the worst category of the range of possible offences for aggravated indecent as…
R v Way [2004] NSWCCA 131
Citation 19 (Para 4)

…this case, for conduct proscribed by s 66C(2) must be reflected in the sentences which courts impose: R v Jurisic (1998) 45 NSWLR 209 at 227; R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [52]; Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [31].…
R v TAB [2002] NSWCCA 274
Citation 20 (Para 1)

…n circumstances where the victim is vulnerable, by reason of her age and her hearing impairment, and the offender was in a position of trust: R v TAB [2002] NSWCCA 274; R v BJW (2000) 112 A Crim R 1.…
R v Togias [2001] NSWCCA 522
Citation 21 (Para 2)

…aw so that it is necessary for the offender to show exceptional hardship to a third party to ameliorate an otherwise appropriate sentence: R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23 at [13] – [17]; R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265 at [93].…
R v Olbrich [1999] HCA 54
Citation 22 (Para 5)

…e to consider for his sentence, the detrimental effect of that delay must be established by the offender on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]. In the circumstances, I do not find that this is established on the balance of probabilities.…
Pearce v The Queen [1998] HCA 57
Citation 23 (Para 1)

…I have had regard to the principles of totality as referred to in Pearce v The Queen (1998) 194 CLR 610 at [45] and subsequent decisions, and the necessity of not imposing a crushing sentence, particularly given the offender’s age. A sentence should not connote the destruction of any reasonable expectation of useful…

Legislation Cited

Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 1)
Crimes Act 1900 (ACT)
1 mention (from Para 2)