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Court of Criminal Appeal 16 September 2005

Chami v R

[2005] NSWCCA 299

Sexual offencesAssault & violencePublic order & justice offences
CRIMINAL LAW DETENTION OF COMPLAINANT FOR ADVANTAGE WHETHER SENTENCES MANIFESTLY EXCESSIVE.

Citation: Chami v R [2005] NSWCCA 299
Court: New South Wales Court of Criminal Appeal
Date: 16 September 2005
Judge(s): Studdert J, Bell J, Latham J

Background

The applicant was one of several men tried and convicted in connection with a series of serious sexual offences committed on 30 August 2000. The victim, Ms C, was approached on a train, persuaded to travel with a group of men, and subsequently subjected to repeated sexual assaults at multiple locations across western Sydney.

The applicant was convicted in the District Court on two counts: detaining the victim with intent to obtain a sexual advantage (under the then-operative s 90A of the Crimes Act), and aggravated sexual intercourse without consent while in company (under s 61J). The sentencing judge, Finnane DCJ, imposed an aggregate sentence of 18 years imprisonment with a non-parole period of 10 years and six months.

The applicant sought leave to appeal those sentences, arguing that the sentencing judge had made errors in his findings and that the sentences were manifestly excessive. His application was heard alongside related applications from co-offenders, including Bilal Skaf, Mohammed Skaf, Belal Hajeid, and the Sanoussi brothers.

  • Whether the sentencing judge made factual errors in his findings relevant to the applicant's culpability
  • Whether the sentences imposed were manifestly excessive having regard to comparable cases and the applicant's subjective circumstances
  • Whether the overall sentencing structure, including the non-parole periods, was warranted in law under s 6(3) of the Criminal Appeal Act

Decision

The Court granted leave to appeal but dismissed the appeal, concluding that no less severe a sentence was warranted in law.

In reviewing the factual findings, the Court examined the circumstances in detail: during the journey in the red car, the back-seat passengers sexually assaulted Ms C while the applicant drove. At a service station, the applicant physically prevented Ms C from escaping and threatened her with what she believed to be a weapon held to her head. He then drove her to an industrial estate and committed penile-vaginal intercourse upon her while she was crying and distressed. The Court characterised the applicant's criminality as "very serious indeed."

The Court took into account the applicant's subjective circumstances: he had no prior criminal record, was of good character, was employed as a bricklayer, had a supportive family, and had expressed some remorse. A psychologist's report assessed him as posing a medium to low risk of reoffending. These factors had been considered by the sentencing judge, who nonetheless imposed substantial sentences reflecting the gravity of the offences.

In examining consistency across co-offenders, the Court noted that Finnane DCJ had applied a starting point of 15 years for s 61J offences across multiple offenders (with discounts applied where guilty pleas were entered). The applicant, who contested the charges, received no such discount. The Court found no identifiable error in the sentencing approach and concluded the sentences were not manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentences totalling 18 years imprisonment with a 10 years and six months non-parole period were not manifestly excessive for convictions involving detention and aggravated sexual intercourse in company, in circumstances characterised by planning, physical restraint, and threatened violence.
  • Positive subjective factors, including prior good character, stable background, low reoffending risk, and some remorse, were considered by the sentencing court but did not reduce sentences below those otherwise warranted by the objective seriousness of the offences.
  • A trial conviction, as opposed to a guilty plea, resulted in no sentencing discount; comparison with co-offenders who received reduced head sentences reflected the benefit they received for pleading guilty rather than any disparity in starting points.
  • Under s 6(3) of the Criminal Appeal Act, the operative question on a sentence appeal is whether a more or less severe sentence is warranted in law. The Court found that no less severe sentence met that threshold on these facts.
  • No error was established in the sentencing judge's factual findings, even where the judge had flagged that the victim's distress in giving evidence was a consideration, as there was no clear evidence that this ultimately affected the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 90A (now repealed)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v AEM Snr; R v KEM; R v MM [2002] NSWCCA 58
- R v Gray (1977) VR 225
- R v H [2005] NSWCCA 282
- R v Hajeid [2005] NSWCCA 262
- R v Mahmoud Sanoussi [2005] NSWCCA 322
- R v Mohammad Sanoussi [2005] NSWCCA 323
- R v Bilal Skaf [2005] NSWCCA 297
- R v Mohammed Skaf [2005] NSWCCA 298
- Siganto v The Queen (1998) 194 CLR 656