Citation: Chaouk v R [2017] NSWCCA 295
Court: Court of Criminal Appeal, NSW
Date: 4 December 2017
Judges: Macfarlan JA, Fullerton J, Fagan J
Background
The appellant pleaded guilty in the District Court to four serious offences arising from a planned armed robbery committed on 26 March 2014. The offending involved the appellant and two co-offenders luring three young men to a meeting in Merrylands under the pretence of a mobile phone sale, then robbing them at gunpoint. During the robbery, the appellant shot one victim in the arm, chest, and abdomen.
As the appellant was leaving the scene, a 62-year-old neighbour, Graeme Hunt, came outside after hearing shots. When he asked whether everything was alright, the appellant shot him in the chest at close range. Mr Hunt sustained catastrophic spinal injuries and was rendered a paraplegic. He was hospitalised for 16 months and has been confined to a wheelchair since.
Woodburne DCJ sentenced the appellant in the District Court on 16 September 2016, imposing an aggregate term of 27 years imprisonment with a non-parole period of 20 years. The appellant sought leave to appeal that sentence to the Court of Criminal Appeal.
Legal Issues
- Whether the aggregate sentence failed to properly apply the principle of totality (which requires that a sentence for multiple offences not be disproportionate to the overall criminality when viewed as a whole)
- Whether the sentencing judge failed to provide adequate reasons for the aggregate sentence imposed
- Whether the sentencing judge failed to apply the principle of instinctive synthesis (the process by which all relevant factors are weighed together to arrive at a single appropriate sentence)
- Whether the sentence was "crushing" (so severe as to offer no realistic prospect of rehabilitation or reintegration)
- Whether the sentence was manifestly excessive
Decision
The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding error in the sentence imposed below. Fullerton J, with whom Macfarlan JA and Fagan J agreed, held that the sentencing judge had failed to give adequate reasons explaining how the indicative sentences for each count were converted into the aggregate term. This absence of reasoning made it impossible to assess whether the principle of totality had been properly applied.
On the totality principle, the Court accepted that the offences committed against the robbery victims (Counts 1, 3, and 5) occurred effectively within minutes of one another in the execution of a single plan, and that this required considerable moderation when notionally accumulating their indicative sentences. Count 7, the shooting of Mr Hunt, was separated in time from the robbery and was unrelated to the original plan, warranting some further accumulation but also some moderation given the overall sentencing task.
Re-sentencing, the Court revised the indicative sentence for Count 7 from 17 years to 14 years and 6 months, and then determined an aggregate sentence that reflected appropriate, but not disproportionate, accumulation. The Court applied the principle of instinctive synthesis, weighing the gravity of the offending (including the catastrophic and permanent injuries suffered by Mr Hunt) against the mitigating factors: the early guilty pleas, genuine remorse, the appellant's youth, his first custodial sentence, progress in addressing drug use, and the evidence of rehabilitation prospects.
The Court found that a special circumstances finding was warranted, given the appellant's youth, his first period in custody, and the need for extended post-release supervision following a lengthy non-parole period. An aggregate sentence of 20 years with a non-parole period of 14 years was held to be the appropriate outcome.
Orders Made
- Leave to appeal granted.
- Appeal allowed.
- Sentence imposed in the District Court on 16 September 2016 quashed.
- In substitution, the appellant sentenced to an aggregate term of 20 years imprisonment, comprising a non-parole period of 14 years commencing 3 April 2014 and expiring 2 April 2028, with a balance of term of 6 years expiring 2 April 2034.
Key Takeaways
- A sentencing judge imposing an aggregate sentence must provide adequate reasons explaining how individual indicative sentences are combined, to allow meaningful appellate review of whether totality has been properly applied.
- The principle of totality requires careful moderation when multiple offences arise from a single course of conduct occurring within a short timeframe, distinguishing those from offences that are temporally and factually separate.
- Where a sentencing judge's reasons do not disclose the path from indicative sentences to the aggregate term, that failure can itself constitute appealable error, even when the individual indicative sentences are not challenged.
- Instinctive synthesis requires the court to weigh all aggravating and mitigating factors together; it is not a purely mathematical exercise of adding individual sentences.
- The Court of Criminal Appeal confirmed that a finding of special circumstances was appropriate for a young, first-time custodial offender, to allow for extended supervision and support upon release after a lengthy non-parole period.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33A(1)(a), 97(2), 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Cases
- Beale v R [2015] NSWCCA 120
- JM v R [2014] NSWCCA 297
- JT v R [2012] NSWCCA 133
- Kerr v R [2016] NSWCCA 218
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Pizzimenti v R [2017] NSWCCA 231
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Camp [2004] NSWCCA 264
- R v Van Ryn [2016] NSWCCA 1
- Trad v R [2009] NSWCCA 56
- ZA v R [2017] NSWCCA 132