Citation: Chami v R [2019] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 29 March 2019
Judge(s): Leeming JA, Harrison J, Davies J
Background
The appellant pleaded guilty in the District Court to three serious offences arising from a single incident on 26 March 2014: assault inflicting grievous bodily harm with intent to rob while armed with an offensive weapon, robbery armed with a dangerous weapon, and assault with intent to rob armed with a dangerous weapon. All three offences were committed in company with two co-offenders during what began as a staged mobile phone sale arranged to lure the three victims.
The offending involved a co-offender producing a firearm inside the victims' car, robbing two of them, and shooting the driver three times, leaving him with lasting injuries to his arm, chest, and abdomen. The appellant's role was as the organiser of the staged transaction. His liability for the weapon-related aspects arose from his continued presence after the gun was produced, which was taken as evidence of intent to assist if required.
The sentencing judge imposed an aggregate term of 11 years with a non-parole period of 7 years and 9 months, backdated to 27 March 2014. A 15% discount was applied for the utilitarian value of the guilty pleas, and a finding of special circumstances was made. The appellant sought leave to appeal against the severity of the sentence on three grounds.
Legal Issues
- Whether the sentencing judge erred in applying the totality principle when constructing the aggregate sentence
- Whether a new sentence imposed on the appellant's co-offender (Chaouk) required the Court of Criminal Appeal to re-exercise the principle of proportionality in relation to the appellant's sentence
- Whether the aggregate sentence was manifestly excessive
Decision
On the totality ground, the Court found no error in the sentencing judge's reasoning. Her Honour identified the factors pointing toward concurrency (the offences arose from a single episode, involved the same offenders and weapon, and occurred in quick succession) and those pointing toward accumulation (three separate victims and the individual seriousness of each offence). The Court noted that the appellant did not identify any relevant factor her Honour had overlooked or any irrelevant factor she had wrongly taken into account.
On the co-offender proportionality ground, the Court was referred to the outcome in Chaouk v R [2017] NSWCCA 295, in which the co-offender's sentence had been re-assessed. The Court declined to re-exercise the proportionality principle in the appellant's favour as a result. Harrison J found that the co-offender's revised sentence did not require any adjustment to the appellant's sentence.
On manifest excess, the Court observed that the appellant had conceded the individual indicative sentences were not themselves excessive. Because the challenge to the aggregate sentence rested entirely on the totality and proportionality grounds, and both had been rejected, the manifest excess ground could not succeed independently.
The appeal was dismissed in its entirety.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing judge imposing an aggregate sentence is not required to specify precisely which portions of individual indicative sentences overlap or accumulate with one another, provided the judge identifies and weighs the relevant factors for concurrency and accumulation.
- In dismissing the totality ground, the Court emphasised that the absence of any identified overlooked or wrongly-applied factor is a significant indicator that a sentencing judge's reasoning process was adequate.
- A revised sentence imposed on a co-offender does not automatically trigger a re-exercise of the proportionality principle in relation to an appellant's separate sentence.
- Where an appellant concedes that individual indicative sentences are not excessive, a manifest excess argument cannot succeed unless an independent error in the aggregation process is established.
- Under ss 97(2) and 98 of the Crimes Act 1900 (NSW), offences of this nature carry maximum penalties of 25 years imprisonment, and s 98 carries a standard non-parole period of 7 years.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97(2) (robbery armed with a dangerous weapon; assault with intent to rob armed with a dangerous weapon) and 98 (assault inflicting grievous bodily harm with intent to rob armed with an offensive weapon)
Cases:
- Chaouk v R [2017] NSWCCA 295