AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
25
Court of Criminal Appeal 21 July 2017

Chamseddine v R

[2017] NSWCCA 176

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE LEGAL ERROR APPEAL ALLOWED APPLICANT RESENTENCED AGGREGATE SENTENCE

Citation: Chamseddine v R [2017] NSWCCA 176
Court: NSW Court of Criminal Appeal
Date: 21 July 2017
Judges: Hoeben CJ at CL, Walton J, R A Hulme J

Background

The appellant was a taxi driver contracted to transport children with disabilities to and from school. He was convicted after a jury trial of four counts of aggravated sexual intercourse with a child aged between 10 and 11 years, and two counts of aggravated indecent assault on a child under 16. The offences were committed against a single complainant who was both deaf and had limited vocal abilities, and they occurred in the taxi over a period of approximately three weeks in 2009.

The District Court sentenced the appellant in September 2015 to an aggregate term of 15 years' imprisonment, with a non-parole period of 10 years. The sentencing judge set indicative sentences of 6 years for each of the four sexual intercourse counts, and lesser terms for the two indecent assault counts, and expressly stated in the remarks on sentence that the aggregate sentence reflected a partial accumulation of 15 months on each of the sexual intercourse counts.

The appellant sought leave to appeal on the ground that the accumulated sentences were manifestly excessive.

  • Whether the aggregate sentence was manifestly excessive.
  • Whether the sentencing judge made a legal error by treating the complainant's age as an aggravating factor on the aggravated sexual intercourse counts (a Crown concession raised in written submissions).
  • Whether the sentencing judge misapplied his own stated accumulation methodology, arriving at a degree of accumulation of 3 years rather than the 15 months he stated.

Decision

During the hearing, Hoeben CJ at CL raised a distinct error with the parties: the aggregate sentence as actually constructed reflected an accumulation of approximately 3 years across the sexual intercourse counts, not the 15 months the sentencing judge had expressly stated. Neither party demurred. The Court treated the parties' acquiescence as equivalent to an amendment of the grounds of appeal and proceeded on the basis that legal error had been established.

Walton J noted that, in the context of an aggregate sentence, there is no legislative requirement to specify the degree of accumulation between indicative sentences. The sentencing judge's decision to articulate a precise figure introduced an unnecessary constraint, and his failure to apply that figure consistently meant the aggregate sentence did not reflect his own stated approach. This constituted appealable error, rendering resentencing necessary in accordance with the principles in Kentwell v R and Lehn v R.

On resentencing, Walton J considered the objective seriousness of the offences, including the exploitation of a highly vulnerable child, the premeditation and planning involved, the significant age difference between the appellant and the complainant, and the fact that offending occurred on four separate occasions. Mitigating factors and the principle of totality were also weighed. The Court found that the original Crown concession regarding double-counting of age as an aggravating factor was subsumed by the resentencing exercise.

R A Hulme J agreed with Walton J's orders, observing that aggregate sentencing is designed to simplify the task for multiple offences and carries no requirement to state accumulation figures precisely. The error arose precisely because the sentencing judge embarked on that unnecessary course.

Orders Made

  • Leave to appeal granted.
  • The appeal allowed.
  • The sentence imposed on 18 September 2015 quashed.
  • The appellant resentenced to a term of imprisonment of 12 years, commencing 15 March 2015, comprising a non-parole period of 8 years expiring 14 March 2023 and a balance of term of 4 years expiring 14 March 2027.

Key Takeaways

  • A sentencing judge imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 is not required to state the precise degree of accumulation between indicative sentences; doing so unnecessarily creates a further constraint that the judge must then apply consistently.
  • Where a sentencing judge expressly articulates a specific degree of accumulation but the aggregate sentence actually reflects a materially different degree of accumulation, that inconsistency constitutes a legal error that enliven the Court of Criminal Appeal's jurisdiction to resentence.
  • The Court of Criminal Appeal confirmed that once legal error is established, it proceeds to resentence the offender afresh, applying the principles in Kentwell v R (2014) 252 CLR 601 and Lehn v R [2016] NSWCCA 255.
  • In resentencing, the Court reduced the aggregate sentence from 15 years (non-parole period of 10 years) to 12 years (non-parole period of 8 years), reflecting the corrected approach to accumulation and the totality principle.
  • A victim's particular vulnerability, including sensory disabilities, remains a relevant aggravating factor at sentencing for child sexual offences.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), ss 66C(2), 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 54B(4)

Cases
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255
- Beale v R [2015] NSWCCA 120
- Flaherty v R; R v Flaherty [2016] NSWCCA 188
- R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469
- Sharma v R [2017] NSWCCA 85
- R v Daley [2010] NSWCCA 223
- R v King [2009] NSWCCA 117
- O'Brien v R [2013] NSWCCS 197
- R v Da Silva (unrep, 30/11/95, NSWCCA)