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19
Court of Criminal Appeal 20 February 2019

Charbaji v R

[2019] NSWCCA 28

Homicide

Citation: Charbaji v R [2019] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 20 February 2019
Judges: Beazley P; Price J; Wilson J

Background

Two brothers were convicted by a jury in October 2016 of the murder of a man they had tortured and killed over a debt connected to a damaged vehicle. The killing occurred over a period of approximately two days in July 2014. The first appellant was identified as the person who inflicted the injuries that caused death; the second appellant participated in the joint criminal enterprise but was not present when the fatal injuries were inflicted.

The brothers were tried together with a third co-accused, who was charged as an accessory after the fact. During that joint trial, certain evidence was admitted that was only admissible against the third co-accused. The Crown Prosecutor's closing address referred to that evidence in a way that suggested the jury could use it when assessing the brothers' guilt. Defence counsel applied for the jury to be discharged, but the trial judge refused and instead gave a corrective direction.

At first instance, the first appellant was sentenced to 32 years imprisonment with a non-parole period of 24 years. The second appellant received a heavier sentence of 36 years imprisonment with a non-parole period of 27 years. The second appellant appealed both his conviction and his sentence, while the first appellant appealed only his conviction.

  • Whether the trial judge erred in refusing to discharge the jury after the Crown Prosecutor's closing address referred to evidence inadmissible against the appellants
  • Whether the Crown Prosecutor's comments produced a miscarriage of justice, and if so, whether that miscarriage was "substantial" for the purposes of the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the second appellant's sentence was manifestly excessive, given that his role in the offence was directed at causing grievous bodily harm rather than death and he was not present when the fatal injuries were inflicted
  • Whether the disparity between the sentences imposed on the two brothers gave the second appellant a justifiable sense of grievance, warranting resentencing

Decision

Conviction appeals (both appellants). The Court granted leave to appeal on conviction but dismissed both appeals. On the question of jury discharge, the Court held that the trial judge did not err: the corrective direction given to the jury after the Crown Prosecutor's address was clear and adequate. The Court applied Crofts v R (1996) 186 CLR 427, which recognises that a trial judge's corrective direction can, in appropriate circumstances, remedy the prejudice arising from an improper address.

The Court accepted that the Crown Prosecutor's references to inadmissible evidence did constitute a miscarriage of justice. However, it concluded that the miscarriage was not a "substantial" one within the meaning of s 6(1) of the Criminal Appeal Act 1912. The Court was satisfied that the guilt of each accused had been proved to the criminal standard, and it therefore applied the statutory proviso to dismiss the conviction appeals. The appellants had sought a retrial rather than acquittal, but the finding on the proviso meant that outcome was not available.

Sentence appeal: manifest excess (second appellant). The Court rejected the manifest excess ground. Despite the second appellant's stated intention having been to cause grievous bodily harm rather than to kill, and despite his absence at the time the fatal injuries were inflicted, the Court found the murder well above mid-range in seriousness and approaching a worst case scenario. The second appellant was held to be equally culpable with his brother for the crime as a whole.

Sentence appeal: parity (second appellant). This ground succeeded. The Court found a marked and unjustifiable disparity between the brothers' sentences, given that the first appellant was the person who actually inflicted the fatal harm and had a lesser moral culpability on that account. The Court resentenced the second appellant to 34 years imprisonment with a non-parole period of 25 years and 6 months, reducing the gap between the two sentences from four years to two years.

Orders Made

Azam Charbaji (matter 2015/5665):
- Leave to appeal against conviction granted
- Appeal against conviction dismissed

Haysem Charbaji (matter 2015/26215):
- Leave to appeal against conviction and sentence granted
- Appeal against conviction dismissed
- Appeal against sentence allowed; sentence imposed at first instance quashed
- Resentenced to 34 years imprisonment, with a non-parole period of 25 years and 6 months commencing 14 February 2016 and concluding 13 August 2041, and a balance term of 8 years and 6 months expiring 13 February 2050

Key Takeaways

  • A Crown Prosecutor's closing address that directs the jury to evidence admissible only against a co-accused constitutes a miscarriage of justice, but it will not automatically be a "substantial" miscarriage of justice warranting a new trial. Where the Court of Criminal Appeal is satisfied that guilt was proved to the criminal standard, the statutory proviso in s 6(1) of the Criminal Appeal Act 1912 allows the appeal to be dismissed.

  • In refusing to discharge the jury, the trial judge's corrective direction can be sufficient to address the prejudice from an improper prosecutorial address, provided the direction is clear. The Court applied Crofts v R in confirming this approach.

  • Where co-offenders in a joint criminal enterprise receive markedly different sentences, the more heavily sentenced offender may have a justifiable sense of grievance even if there are subjective differences between them. Here, the decisive factor was that one brother was the physical perpetrator of the fatal harm, which reduced his moral culpability relative to the other.

  • An offender's intention to cause grievous bodily harm rather than death does not automatically reduce the objective seriousness of a murder charge to the point of manifest excess. The Court held that the murder remained well above mid-range and approaching a worst case despite the second appellant's stated intention and his absence at the fatal moment.

  • Sentencing parity principles require that co-offenders not receive sentences that are disproportionate to each other without justification. The Court reduced the sentencing gap from four years to two years, treating the physical perpetration of the killing as a legitimate basis for some, but not excessive, disparity.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b), s 6(1)

Cases:
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92; [2012] HCA 14
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Crofts v R (1996) 186 CLR 427; [1996] HCA 22
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kalbasi v Western Australia (2018) 352 ALR 1; [2018] HCA 7
- Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26