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District Court 2 December 2016

R v Chambour; R v Khallouf (No 5)

[2016] NSWDC 379

Assault & violence
SENTENCE RECKLESS WOUNDING IN COMPANY AND AFFRAY OFFENDERS PLEADED GUILTY TO OFFENCES

Citation: R v Chambour; R v Khallouf (No 5) [2016] NSWDC 379
Court: District Court of New South Wales
Date: 2 December 2016
Judge: Neilson DCJ

Background

On the night of 7 to 8 September 2013, two groups of men became involved in a series of violent incidents at the Opera Bar at the Sydney Opera House and then in the adjacent carpark. The first group had gathered to celebrate a birthday; the second group was also present at the venue that evening. A minor collision between two individuals escalated into a series of physical altercations involving multiple men from both groups.

During the fighting inside the Opera Bar, one offender threw a chair into the melee, striking a security guard and causing a laceration. The other offender was observed on CCTV producing a folded knife from his pocket and holding it at his side, though he did not threaten anyone with it. Security guards eventually separated the groups and directed one group toward the carpark, but further violence followed in that area, resulting in two individuals being recklessly wounded.

Both offenders pleaded guilty to charges arising from these events. The sentencing hearing was notably complex, involving pre-trial applications regarding tendency evidence and witnesses who had departed overseas before giving evidence, which significantly affected the course of proceedings.

  • What sentences were appropriate for each offender's role in the affray at the Opera Bar and the subsequent reckless wounding in company in the carpark?
  • What weight should be given to the public location of the offences (a prominent Sydney landmark) in the sentencing exercise?
  • Whether special circumstances existed justifying a variation to the standard ratio between non-parole period and the balance of the sentence under the Crimes (Sentencing Procedure) Act 1999.
  • How the guilty pleas, entered after significant pre-trial proceedings, should be treated for the purposes of discount.

Decision

Neilson DCJ imposed custodial sentences on both offenders, having regard to the serious nature of the offences, the public and prominent location where they occurred, and each offender's individual circumstances and role in the events.

For Chambour, the most serious offence was reckless wounding in company of one member of the opposing group. His Honour sentenced him to a total term of two years and three months imprisonment, with a non-parole period of 12 months commencing 11 December 2016, with release to parole at the expiration of that period. A concurrent sentence of one year and four months (with a non-parole period of eight months) was imposed in respect of the affray charge. His Honour found special circumstances in each instance, justifying the longer balance of term relative to the non-parole period.

For Khallouf, the principal charge was reckless wounding in company of a different victim. His Honour imposed a total sentence of two years imprisonment, with a non-parole period of 12 months commencing 2 December 2016, with release to parole at expiration. Special circumstances were also found in his case. In respect of the separate affray charge arising from the carpark incident, Khallouf received a three-year good behaviour bond rather than a further custodial term.

The judgment reflects the District Court's consideration of the effect of committing offences of public violence in a high-profile, heavily frequented public precinct, treating this as an aggravating feature in the sentencing exercise.

Orders Made

George Chambour:
- Convicted of affray (Opera House carpark): imprisoned with a non-parole period of 8 months (commencing 11 December 2016, expiring 10 August 2017); balance of term of 8 months, total sentence 1 year and 4 months.
- Convicted of reckless wounding in company of Patrick White: imprisoned with a non-parole period of 12 months (commencing 11 December 2016, expiring 10 December 2017); balance of term of 1 year and 3 months, total sentence 2 years and 3 months. Released to parole at expiration of non-parole period.

Youssef Khallouf:
- Convicted of reckless wounding in company of Kurtis Pattison: imprisoned with a non-parole period of 12 months (commencing 2 December 2016, expiring 1 December 2017); balance of term of 12 months, total sentence 2 years. Released to parole at expiration of non-parole period.
- Convicted of affray (Opera House carpark): good behaviour bond for 3 years from 2 December 2016, on conditions including: appearance before the Court if called upon; good behaviour; residence at a specified address after release from custody; notification to the Court Registrar of any change of address; and compliance with supervision and reasonable directions of Community Corrections.

Key Takeaways

  • The District Court treated the public and prominent nature of the Opera House precinct as an aggravating factor, reflecting the principle that violence in heavily frequented public spaces warrants particular condemnation in sentencing.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 permits a court to adjust the standard ratio between the non-parole period and the balance of the sentence, resulting in a longer supervisory period on parole relative to time actually served in custody.
  • Where guilty pleas are entered after extensive pre-trial proceedings, including failed Crown applications and the disappearance of key witnesses, the timing and circumstances of the plea bear on the extent of any discount the sentencing court applies.
  • Possession of a knife during an affray, even where the weapon is not brandished or used to threaten anyone, remained a relevant circumstance in the sentencing exercise for that offender.
  • Different roles within the same series of violent events can attract meaningfully different sentencing outcomes, including the imposition of a non-custodial order (good behaviour bond) for a less serious charge while a custodial sentence is served concurrently for the principal offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 9
- Evidence Act 1995 (NSW), including s 67

Cases:
- Amado v Regina [2011] NSWCCA 197
- Chen v Regina [2013] NSWCCA 166
- Regina v Zamagias [2002] NSWCCA 17
- R v Chambour; R v Khallouf [2016] NSWDC 244 (tendency evidence ruling)
- R v Chambour; R v Khallouf [2016] NSWDC 245 (trial by judge alone application)