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Court of Criminal Appeal 5 April 2006

Chahine v R

[2006] NSWCCA 99

Assault & violenceTheft & property
CRIME CONVICTION APPEAL ROBBERY IN COMPANY MISCARRIAGE OF JUSTICE DIRECTION ON A RETRIAL DIRECTION ON JOINT CRIMINAL ENTERPRISE

Citation: Chahine v R [2006] NSWCCA 99
Court: New South Wales Court of Criminal Appeal
Date: 5 April 2006
Judge(s): Grove J, Simpson J, Rothman J

Background

The appellant was convicted by a jury in the District Court of robbery in company under s 97(1) of the Crimes Act 1900, arising from a bank robbery at Revesby on 4 June 2001. Two men entered the St George Bank branch and stole approximately $16,585. The appellant was identified through a combination of surveillance footage, DNA evidence from a cap found at nearby premises, witness descriptions, and his proximity to the getaway vehicle shortly after the robbery.

Police located the stolen vehicle parked near a unit block in Punchbowl within 15 minutes of the robbery. Officers observed the appellant exit the vehicle and, as police moved in, money reportedly fell from him and was later thrown into the air as he fled over a fence. He was apprehended and arrested nearby. At the police station, he allegedly attempted to swap his shoes after being told photographs showed the robbers wearing footwear matching his.

The appellant did not give evidence at trial. He was convicted after a five-day trial and sentenced by Shillington DCJ on 10 September 2004. He then appealed both conviction and sentence to the Court of Criminal Appeal.

  • Whether incompetence of trial counsel caused a miscarriage of justice
  • Whether the trial judge erred in directing the jury that the trial was a retrial without adequately explaining the implications of that direction
  • Whether the trial judge's directions on joint criminal enterprise were erroneous
  • Whether the verdicts were unreasonable or incapable of being supported by the evidence
  • Whether the sentence was manifestly excessive
  • Whether the sentencing judge misapplied s 21A of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred in declining to find special circumstances

Decision

The Court dismissed all four grounds of the conviction appeal. On the incompetence of counsel ground, the Court found no miscarriage of justice had been established. The retrial direction and the joint criminal enterprise directions were examined and found to disclose no error warranting the appeal being allowed. On the question of whether the verdicts were unreasonable, the Court found the evidence, including the DNA, the appellant's proximity to the getaway vehicle, the money being discarded as he fled, and his conduct at the police station, was capable of supporting the jury's conclusions.

On sentence, the Court accepted the sentence sat at the higher end of the available range but found it remained within the sentencing judge's proper discretion. The Court noted the appellant's prior offending and the fact the offence was committed while he was on parole for an offence of the same kind, which the sentencing judge treated as warranting serious punishment and reduced emphasis on rehabilitation.

The Court rejected the ground relating to s 21A of the Crimes (Sentencing Procedure) Act 1999. The sentencing judge, described as extremely experienced, had addressed all relevant factors without explicitly labelling them by reference to s 21A. The Court held that approach disclosed no error, particularly where no specific factor was identified as having been misused or omitted.

On special circumstances, the Court confirmed the determination is almost entirely within a sentencing judge's discretion. Intervention would require demonstrated error of principle or manifest error, neither of which was present here.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • A sentencing judge's failure to refer expressly to s 21A of the Crimes (Sentencing Procedure) Act 1999 by name does not constitute error, provided the relevant sentencing factors are in fact considered and applied.
  • Declining to find special circumstances is a discretionary decision that will rarely attract appellate intervention; an applicant must demonstrate an error of principle or manifest error, not merely a different view of the factors.
  • In dismissing the conviction appeal, the Court confirmed that proximity to a stolen getaway vehicle shortly after a robbery, combined with DNA evidence and conduct consistent with flight and disposal of proceeds, can together support a jury verdict.
  • Where trial counsel's conduct is challenged as incompetent, the appellant must establish that the incompetence produced an actual miscarriage of justice; dissatisfaction with tactical decisions is insufficient.
  • A sentence at the higher end of the range is not automatically manifestly excessive; prior offending and commission of the offence while on parole for a like offence are legitimate factors that can justify a more severe outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- R v Habib [2005] NSWCCA 223
- RPS v The Queen (2000) 199 CLR 620
- TKWJ v R (2002) CLR 124
- R v Birks (1990) 19 NSWLR 677
- Ratten v R (1974) 131 CLR 510
- R v Moussa (No. 2) (2002) 134 A Crim R 296