Citation: R v El-Chami [2016] NSWSC 445
Court: Supreme Court of New South Wales
Date: 19 April 2016
Judge: Schmidt J
Background
A man was beaten to death at his home in Granville in the early hours of 14 August 2013. The offender and two co-accused were charged with murder. The offender consistently denied being present during the killing, though he admitted he had been at the victim's home earlier that night.
At the commencement of the murder trial in November 2015, the Director of Public Prosecutions accepted the offender's offer to plead guilty to the lesser charge of concealing a serious indictable offence under s 316(1) of the Crimes Act 1900 (NSW). The charge was that, knowing Ahmed Kaddour and Daniel Azar had committed murder, the offender failed without reasonable excuse to bring information that might assist in their prosecution to the attention of police.
A central feature of the sentencing proceedings was that CCTV footage corroborating the offender's account had come into police hands shortly after his arrest in 2013, but was neither served on him nor considered by the Crown until shortly before the 2015 trial. Schmidt J found that had the footage been examined earlier, the offender would never have faced a murder trial at all.
Legal Issues
- What was the appropriate sentence for an offence of concealing a serious indictable offence (murder) under s 316(1) of the Crimes Act 1900 (NSW)?
- How should the sentencing court weigh the offender's early plea of guilty and cooperation with the Crown?
- What weight should be given to the failures by police and the Crown regarding the CCTV footage, and the consequences those failures had for the offender?
- How should extra-curial punishment, including the wrongful public posting of information about the offender, be taken into account?
- Did the totality of mitigating factors justify a suspended sentence?
Decision
Schmidt J identified several aggravating features of the offence. The underlying crime was murder, one of the most serious offences known to law, and the offender possessed information that could have assisted in prosecuting those responsible. General deterrence and the importance of encouraging people to report serious crimes to police were relevant considerations.
However, the mitigating factors were substantial and, in combination, weighed heavily in favour of a suspended sentence. The offender entered an early plea and provided assistance to the Crown. Importantly, the court accepted that the offender himself was an innocent man who had been wrongly charged with murder, kept on bail subject to stringent conditions, including daily reporting and curfew, for far longer than necessary because of the failure by police and the Crown to examine and serve the exculpatory CCTV footage in a timely way.
Schmidt J also accepted that the offender had suffered extra-curial punishment: others had wrongly posted information in public places about his alleged offending and bail conditions, treating him as though he were guilty of the murder he did not commit. The court found it appropriate to take that wrongful punishment into account, consistent with the principle in R v Daetz; R v Wilson [2003] NSWCCA 216.
Taking all factors together, Schmidt J concluded that a suspended sentence of three months imprisonment would adequately serve the purposes of punishment for the offence the offender had actually committed.
Orders Made
- The offender was convicted under s 316(1) of the Crimes Act 1900 (NSW) of failing, without reasonable excuse, to bring to police information that might have assisted in securing the prosecution of Ahmed Kaddour and Daniel Azar for the murder of Basem Salameh.
- The offender was sentenced to three months imprisonment, commencing 19 April 2016, suspended subject to the offender entering into a good behaviour bond for three months and providing the assistance he had promised.
Key Takeaways
- A plea of guilty to concealing a serious indictable offence under s 316(1) does not carry an automatic custodial penalty: the sentencing court conducted a careful balancing of aggravating and mitigating factors before arriving at a suspended sentence.
- Failures in the investigation and prosecution process can constitute a significant mitigating factor where those failures caused the offender to endure more onerous conditions and a longer period of exposure to serious charges than would otherwise have occurred.
- Extra-curial punishment, such as the wrongful public shaming of a person who was not in fact guilty of the offence underlying the charge, is a recognised sentencing consideration in New South Wales, following R v Daetz; R v Wilson [2003] NSWCCA 216.
- Where an offender is charged with a serious offence, and exculpatory material exists in the hands of police, there is an obligation to examine and serve that material in a timely way: the court here noted no satisfactory explanation was ever provided for the delay in serving the CCTV footage.
- Cooperation and assistance provided to the Crown, together with an early plea, remained significant mitigating considerations even in the context of a lesser charge that arose from a murder committed by others.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 316(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases
- R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- R v Olbrich [1999] HCA 54; (1999) CLR 270
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- R v Cartwright (1989) 19 NSWLR 243
- R v Dodd (1991) 57 A Crim R 349
- SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
- R v Scott [2005] NSWCCA 152
- R v CQD [2002] NSWSC 732
- R v Crofts (Court of Criminal Appeal (NSW), 10 March 1995, unreported)
- R v Newbold [2008] NSWSC 942