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Court of Criminal Appeal 2 June 2009

R v El-Chammas

[2009] NSWCCA 154

Sexual offencesAssault & violence
CRIMINAL LAW SENTENCING YOUNG OFFENDER VULNERABLE, 81 YEAR OLD VICTIM PAROLE PERIOD WHETHER MANIFESTLY INADEQUATE

Citation: R v El-Chammas [2009] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 2 June 2009
Judge(s): Giles JA, Howie J, Buddin J (unanimous)

Background

The respondent pleaded guilty in the District Court to one count of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act 1900. The circumstance of aggravation was the infliction of actual bodily harm. Two additional matters, assault police and resist police, were included on a Form 1 document and taken into account at sentencing.

The offence was committed in a park in the early morning of 11 May 2008. The victim was an 81-year-old Korean tourist on a temporary visa, visiting her niece in West Ryde. She was attacked from behind, beaten until she lost consciousness, and sexually assaulted in full view of witnesses in surrounding units who had called police. The respondent was found on top of the victim when police arrived and fled, resisting arrest.

The District Court sentenced the respondent to a non-parole period of 3 years with a total term of 5 years. The Crown appealed on the ground that the sentence was manifestly inadequate, given the gravity of the offence and the significant departure from the standard non-parole period of 10 years.

  • Whether the sentence imposed by the District Court was manifestly inadequate, having regard to the objective seriousness of the offence
  • Whether the sentencing judge's departure from the standard non-parole period of 10 years was adequately justified
  • Whether any basis existed for the Court of Criminal Appeal to exercise its discretion not to intervene once error was established
  • The appropriate sentence to impose on resentencing, accounting for the constraints normally applied in Crown appeals

Decision

Buddin J (with Giles JA and Howie J agreeing) found the sentence manifestly inadequate, not merely lenient. The Court rejected the respondent's characterisation of the sentence as falling within a range that was merely generous, finding the departure from the 10-year standard non-parole period was insufficiently justified in the circumstances.

The objective gravity of the offence was a central consideration. The victim was 81 years old and rendered unconscious before and during the assault. Her injuries were severe and included significant genital trauma consistent with penetration. The ongoing psychological harm was documented by her niece: the victim became fearful, socially withdrawn, and was unwilling to leave the house following the attack.

The Court acknowledged factors personal to the respondent that had weighed in his favour below, including his youth and guilty plea. Nonetheless, those matters could not reduce the sentence to the extent the District Court had reached. The Form 1 matters, while taken into account, were acknowledged by all parties to be minor and did not materially affect the sentencing outcome.

In resentencing, the Court applied the conventional constraint that a Crown appeal should not produce a sentence as high as the Court might itself have imposed at first instance. A finding of special circumstances, justifying the extended ratio of non-parole period to total term, was confirmed.

Orders Made

  • Crown appeal allowed
  • Sentence imposed in the District Court quashed
  • Respondent sentenced to a non-parole period of 4 years imprisonment, commencing 11 May 2008 and expiring 10 May 2012, with a total term of 6 years 6 months imprisonment expiring 10 November 2014
  • Respondent eligible for parole on 10 May 2012

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentence may be manifestly inadequate even where the sentencing judge identified and applied relevant mitigating factors, if the resulting departure from the standard non-parole period is insufficiently justified given the objective seriousness of the offence.
  • A standard non-parole period of 10 years applied to this offence under the Crimes (Sentencing Procedure) Act 1999; the original sentence of 3 years non-parole period was found to reflect an unjustifiable departure from that benchmark.
  • Where the Crown establishes error in a sentencing appeal, the appellate court retains a discretion not to intervene, but such discretion requires a positive basis to exercise it. No such basis was found on the affidavit material before the Court.
  • On resentencing following a successful Crown appeal, the Court applies a recognised constraint: the substituted sentence will generally be less than the sentence the appellate court would itself have imposed at first instance.
  • The vulnerability of a victim, including advanced age, and the lasting psychological and physical harm suffered, are significant factors in assessing the objective gravity of an offence for sentencing purposes.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- 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