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Court of Criminal Appeal 15 April 2021

Chemaissem v R

[2021] NSWCCA 66

Assault & violence
CRIMINAL LAW OFFENCES SENTENCE APPEAL “ROAD RAGE” INCIDENT ERROR ESTABLISHED

Citation: Chemaissem v R [2021] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 15 April 2021
Judges: Brereton JA, Bellew J, Campbell J

Background

The applicant pleaded guilty in the Local Court to wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW), arising from a road rage incident. He adhered to that plea when sentenced in the District Court. On 18 December 2019, Harris DCJ sentenced him to six years and six months imprisonment, with a non-parole period of three years and nine months, commencing 1 May 2019.

The victim sustained scalp lacerations requiring stapling, a minimally depressed skull fracture, bruising to the hand, and abrasions to the lower extremities. A forensic pathologist, Professor Duflou, provided an unchallenged report concluding that the injuries, while constituting actual bodily harm, did not amount to grievous bodily harm and were not "really serious bodily injury" from a medical perspective.

The applicant sought leave to appeal on two grounds: that the sentencing judge erred by failing to treat the injuries as a mitigating factor under s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to find, as a mitigating factor under s 21A(3)(a), that the injury to the victim was not substantial
  • Whether a Crown statement at sentencing that the injuries were not "really serious" amounted to a binding concession that the injuries were not "substantial" for the purposes of s 21A
  • Whether the sentence of six years and six months was manifestly excessive
  • What the proper sentence should be on resentencing

Decision

The central question on Ground 1 was whether the Crown's adoption of Professor Duflou's opinion, that the injuries were not "really serious", constituted a concession that the injuries were not "substantial" within the meaning of s 21A. The majority (Bellew J, with Campbell J agreeing) found that it did. Reading the sentencing transcript as a whole, the Crown's position had effectively conceded that the injuries did not satisfy the "substantial" threshold, and the sentencing judge's reasons suggested she had treated the injuries as aggravating rather than mitigating. That constituted error.

Brereton JA reached a different conclusion on the underlying legal question, though agreed the appeal should be allowed on the basis of manifest excess. His Honour reasoned that "substantial" and "really serious" are distinct legal concepts. An injury can be substantial without meeting the higher threshold of grievous bodily harm. If every injury falling short of grievous bodily harm were treated as insubstantial, every offence involving actual bodily harm would automatically attract the mitigating factor in s 21A(3)(a), a result unlikely to have been intended by the legislature.

On the question of manifest excess, the majority found error established. The Court accepted that the offending was serious, involving a deliberate attack with a metal object (the wheel brace) on a vulnerable victim. However, on a proper application of sentencing principles, the sentence imposed was excessive.

On resentencing, the Court imposed a term of six years imprisonment with a non-parole period of three years and five months, both commencing 1 May 2019.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • In lieu thereof, the applicant sentenced to imprisonment for 6 years, commencing 1 May 2019 and expiring 30 April 2025
  • Non-parole period of 3 years and 5 months, commencing 1 May 2019 and expiring 30 September 2022

Key Takeaways

  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999, "substantial" injury (an aggravating factor) and injury that is "not substantial" (a mitigating factor) occupy distinct territory from the concept of "grievous bodily harm", which requires harm that is "really serious"
  • Brereton JA confirmed that injuries can be "substantial" for sentencing purposes without rising to the level of grievous bodily harm; equating the two thresholds would produce the unintended consequence that every case of actual bodily harm would attract a mitigating factor
  • Where the Crown effectively concedes at sentencing that injuries are not substantial, and the sentencing judge's reasons indicate that injuries were treated as an aggravating rather than mitigating factor, error is established
  • A Crown submission at sentence that injuries are not "really serious" does not automatically constitute a concession that injuries are "not substantial", though the proper characterisation depends on the full context of the sentencing proceedings
  • In dismissing the original sentence, the Court of Criminal Appeal resentenced the applicant to a slightly reduced term, reflecting the error identified while acknowledging the objective seriousness of the road rage offending

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases
- R v Donovan [1934] 2 KB 498
- R v Brown [1994] 1 AC 212
- Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209
- Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379
- Kerr v R (2016) 78 MVR 191; [2016] NSWCCA 218
- Hughes v R [2018] NSWCCA 2
- Horvath v R [2019] NSWCCA 285
- Kennedy v R [2016] NSWCCA 123
- Anderson v R (2008) 187 A Crim R 542; [2008] NSWCCA 211
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Majorstake Limited v Curtis (2008) 1 AC 787
- Mohamad v R [2005] NSWCCA 406
- R v Mendez [2002] NSWCCA 415
- R v Williams [2011] NSWSC 583