Chahal v R

Court of Criminal Appeal (NSW)|2017-08-11|Before: Simpson JA, Harrison J, Davies J

Judgment

SIMPSON JA: I agree with Harrison J.
HARRISON J: Ammar Chahal seeks leave to appeal against a sentence imposed upon him on 27 May 2016 by G D Woods QC DCJ following pleas of guilty to two counts on an indictment as follows: 1. Count 1: On 14 July 2013 at Potts Point in New South Wales he did break and enter the licensed premises of Redmond Company Ltd trading as the Vegas Hotel at 54 Darlinghurst Road and did commit a serious indictable offence therein namely, larceny in circumstances of aggravation namely, being in company with two other persons; contrary to section 112(2) of the Crimes Act 1900 - maximum penalty 20 years imprisonment, standard non parole period five years. 2. Count 2: On 21 October 2013 at Potts Point in New South Wales he did possess an offensive weapon, a knife, with intent to commit an indictable offence namely, robbery whilst armed and at the time of the offence was in company with another person contrary to section 33B(2) Crimes Act - maximum penalty 12 years imprisonment.
The sentencing Judge allowed a ten percent discount for the plea in respect of count one and a 25 percent discount in respect of count two.
His Honour imposed a sentence of 5 years and 6 months imprisonment with a non-parole period of 3 years commencing on 1 March 2017 and expiring on 31 August 2022 for count one. Mr Chahal will be eligible for release to parole on 29 February 2020. On count two, his Honour imposed a fixed term of 2 years and 3 months to date from 1 March 2016 and to expire on 31 May 2018.

Background

Mr Chahal was sentenced upon the basis of agreed facts as follows.

Count 1

On the morning of 14 July 2013, Mr Chahal, with his co-offenders Adam Elshaimy and Islam Elshaimy broke into the Vegas Hotel, licensed premises located at Kings Cross. The Elshaimy brothers were employed by the hotel as security guards. The offenders were assisted in the enterprise by Mr Ye, a hotel manager, who had been offered ten percent of the proceeds.
On 2 July 2013, Mr Ye met with Mr Chahal and the Elshaimy brothers and discussed how to break in to the hotel. Mr Ye was given a mobile phone with which to text the co-offenders about an appropriate time to break in to the premises. Islam Elshaimy approached Mr Ye the evening before the offence and he provided information concerning the likely presence of other staff. It was agreed that the offence would take place between 6.30am and 8.00am.
At 7.51am on 14 July 2013, a Toyota Echo with false plates, carrying Mr Chahal and the Elshaimy brothers was captured on CCTV as it drove down Kellett Street and parked outside the rear entrance to the Hotel. The driver stayed in the car and two men emerged wearing balaclavas and broke into the hotel. Mr Ye assisted the intruders to open the safe and load the money. Mr Ye's wrists were then tied loosely with black cable. About $146,000 was taken and not recovered. Mr Ye was subsequently found by the cleaners and the police were called.
Electronic surveillance subsequently implicated Mr Chahal. The investigation established that a White Toyota Echo was registered to Nawal Chahal. An image located on Mr Chahal's mobile phone depicted him lying on a lounge allegedly in the Elshaimy unit surrounded by numerous bundles of cash.

Count 2

About two months later, Mr Chahal was variously observed on 2, 23 and 30 September 2013 and 7 and 14 October 2013, in the vicinity of the Vegas Hotel, sometimes in company with others. A vantage point had been organised by him and his co-offenders Mamdouh Chahal, who is Mr Chahal's brother, and Islam Elshaimy, to observe the premises for the purposes of possible further criminal activity.
At 12.06pm on 21 October 2013, police surveillance captured Mr Chahal and his brother leaving 114 Roberts Rd, Greenacre and parking in Kellett Street, Kings Cross. At about 1pm, the police approached the car and arrested them. Police located a blue folding knife and a pair of black woollen gloves on Mr Chahal. Also found in the car was a horror mask, two tomahawks, two pairs of gloves and a black balaclava. A black Guess carry bag similar to that worn by one of the offenders involved in the offence of 14 July 2013 was also recovered.
Following the execution of a search warrant at Mr Chahal's premises, police located two walkie talkies, four black plastic cable ties and various bundles of cash totalling $26,650.

Grounds of appeal

Mr Chahal seeks leave to appeal on three grounds. They are as follows: 1. The sentencing judge failed to apply the utilitarian discount to Mr Chahal's sentence imposed for count 1. 2. Mr Chahal has a legitimate sense of grievance having regard to the sentences imposed upon his co-offenders Adam Elshaimy and Islam Elshaimy. 3. The sentencing judge erred by failing to have regard to Mr Chahal's subjective case arising from the evidence and his personal history.

Grounds 1 and 2

It is convenient to consider these grounds together.
In sentencing Mr Chahal and the Elshaimy brothers, the sentencing judge said this: "In all of the circumstances I am satisfied beyond any doubt that the three people who participated in the first event were Adam, wearing a mask or some sort of disguise, his brother and Ammar Chahal. Probably it was Islam who was driving the car, but it does not really matter, the three of them were in it - they were there, took part in it and I do not see any point in distinguishing finding relations of culpability; they were all heavily involved."
To similar effect his Honour also commented as follows: "I have found very substantial criminality equivalent in each case for the offenders who are convicted of the matter which was the subject of the trial of the Elshaimy brothers and the plea by Ammar Chahal."
His Honour proceeded to sentence the Elshaimy brothers to imprisonment for 5 years and 6 months for the aggravated break and enter offences. (Their non-parole periods were different).
However, with respect only to Mr Chahal, his Honour had this to say when calculating a discount with respect to his pleas to each count: "So far as Ammar Chahal is concerned there is a differentiation between the discount for the plea of guilty. For the second matter it was a new count negotiated with the Crown so the 25% ordinarily applicable in pleas of guilt should apply and will apply. However, with the other matter it was a late plea, entered only on the day of the trial, so a discount of only 10% will be allowed."
Mr Chahal complains that, having regard to his Honour's indication that he did not intend to distinguish between the degrees of culpability of the Elshaimy brothers and Mr Chahal and to the fact that Mr Chahal, but not the Elshaimy brothers who were convicted following a trial, was to receive a ten percent discount, the imposition of like sentences for all three men demonstrated that Mr Chahal did not receive the ten percent discount which his Honour foreshadowed. Moreover, Mr Chahal submitted that there were no particular factors uniquely favourable to either of the Elshaimy brothers that would, or could, have served to explain why their sentences were the same as his if he had in fact been given the discount in question.
Counsel who appeared for Mr Chahal at the sentencing proceedings made detailed submissions with respect to his strong subjective case. Mr Chahal also complains in this Court that his Honour did not give, or did not appear to give, any correspondingly detailed consideration of Mr Chahal's particular circumstances. His Honour made reference to the fact that Mr Chahal had tendered a cheque for $15,000 in repayment of what was said to be his share of the proceeds of the robbery. His Honour referred to it as "evidence of remorse and of willingness to recognise wrongdoing and to attempt to compensate for it". That was, however, the extent of any consideration of factors favourable to Mr Chahal. It is to be contrasted with the complete absence of a corresponding finding of remorse on the part of the Elshaimy brothers and his Honour's detailed consideration of their respective subjective cases.
Mr Chahal submitted further that, as a matter of simple arithmetic, the ten percent discount to which he was entitled was contradicted by the fact that his Honour imposed identical head sentences upon the Elshaimy brothers. Having regard to the similar levels of criminality, such a result could only have been achieved by a starting point approximately 6 months higher in the case of Mr Chahal. In short, there was no basis upon the evidence or in his Honour's remarks for a notional starting point in the case of Mr Chahal that was more than 6 months greater than the head sentences imposed on his relevant co-offenders. Mr Chahal either did not get the ten percent discount or, if he did, he has a legitimate sense of grievance based upon the unexplained and different pre-discount starting point for his head sentence on count one.
The Crown contended that where a judge has stated in the remarks on sentence that a specified discount will be applied, it should not lightly be concluded that the discount has not been applied. The judge should be taken at his word in this respect: Williamson v R [2015] NSWCCA 250 at [52]-[53]. There is no requirement that a sentencing judge expressly quantify the starting point of a sentence prior to the application of a discount: Zhao v R [2016] NSWCCA 179 at [71]. Nor is there any need for a judge to engage in a process of arithmetical precision. Such an approach has in fact been discouraged: Williamson v R at [51] and [53].
The Crown drew attention to the fact that Mr Chahal had a prior conviction for possession of a knife in a correctional centre car park for which he was fined $500. His counsel conceded that that would have been a cause for concern and that it had some bearing on the present offences. That was to be contrasted with the Elshaimy brothers who had no criminal history and were of prior good character. His Honour specifically referred to this as follows: "With the other two offenders, the Elshaimy brothers, they are not entitled to a discount, because they did not plead guilty. They do have the benefit, however, as I have said, of the fact that they have no prior convictions - or no prior significant convictions."
The Crown submitted that it is apparent from the context in which these remarks were made that his Honour afforded the Elshaimy brothers leniency in respect of their good character that was not afforded to Mr Chahal. The Crown emphasised that good character and the existence of a criminal record are legitimate points of differentiation between co-offenders: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31]; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 303; Huckstadt v R [2016] NSWCCA 22 at [89].
The Crown contended that as the Elshaimy brothers had the benefit of findings of prior good character and Mr Chahal did not, their respective subjective cases were relevantly distinguishable. It follows in the circumstances that the imposition of identical head sentences was consistent with Mr Chahal having received the benefit of the ten percent discount in question.
Additionally, according to the Crown, in view of the difference in their criminal histories, and in circumstances where the difference in the head sentence prior to the application of the discount was only approximately 6 months and some weeks, it could not be said that the disparity in the sentences imposed was not open to his Honour. In particular, the disparity could not be "categorised as a manifest discrepancy in the sense that it is clearly excessive" so as to justify appellate intervention: Newman v R [2012] NSWCCA 69 at [22].
While I recognise the need to exercise caution before allocating undue significance to what appear to be arithmetical anomalies in sentencing calculations, I do not understand the authorities to suggest that obvious miscalculations may never inform the existence of inadvertence or oversight. In the present case, support for his Honour's sentence requires acceptance of the unlikely proposition that the pre-discount starting point chosen by him for count one was 6 years 1 month and 10 days. I am unable to accept that his Honour intentionally selected that period as the starting point from which to apply the discount that he nominated. The period is so curious as to be inherently unlikely. Furthermore, every other sentencing period to which his Honour referred in sentencing all offenders was expressed as a combination of whole years and whole months. The contention that his Honour would have enigmatically departed from that approach seems to me to be entirely unsustainable.
An alternative approach may be that, despite having indicated that the sentence would be discounted by ten percent, his Honour was speaking in round figures, and intended to start with a sentence of 6 years. The difficulty with that approach is that the resultant sentence would have been 5 years and 4 months, which is significantly less than the 5 years and 6 months actually imposed. Neither approach satisfactorily explains the apparent anomaly.
In my opinion, ground one has been made out. It is therefore unnecessary to deal further with ground two.

Ground 3

Having regard to the need to resentence Mr Chahal following his success on ground 1, it is unnecessary separately to deal with this ground. However, Mr Chahal's submissions in support of this ground should be considered in the context of the resentencing exercise that is required in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 and Lehn v R [2016] NSWCCA 255 at [68], [78]-[79], [120].

Resentence

The factual background to each offence has been described earlier in these reasons.

Subjective circumstances

Mr Chahal was 29 at the date of the commission of the offences. His criminal record was limited to the possession of a knife offence to which previous reference has been made. Mr Chahal grew up in Bankstown. His parents were Lebanese of Sunni background. He attended schools in Yagoona and Enfield. He was moved by his father because he was bullied at school due to his weight. He attended Punchbowl Boys' High School to Year 10.
After leaving school Mr Chahal started an apprenticeship as a cement renderer. After qualifying, he started working for himself. Mr Chahal built a significant cement rendering business which at various times had employed as many as ten people. At the time of the offences, business for Mr Chahal had been "slow" and he was in debt to tradesmen. Following the commission of the offences but prior to the date of his sentencing, Mr Chahal had managed to re-establish his business.
Mr Chahal was very well regarded in the community. In that last respect I have taken account of testimonials tendered in support of his case from Ziad Derbas, Asem Matalka and Khaled Alameddine. I have also taken account of the matters referred to by Dr Olav Nielssen in his report dated 30 April 2016.
Although no detailed submissions on sentence were provided to this Court, I have taken account of the submissions originally made on behalf of Mr Chahal in the sentencing proceedings on 27 May 2016.
Mr Chahal is married. He has not previously been sentenced to a term of imprisonment.

Mitigating and aggravating factors

The offences were clearly planned. The somewhat hapless and simplistic nature of the planning does not derogate from the fact that they were not spontaneous or simply opportunistic.

Contrition and remorse

Mr Chahal tendered a cheque in the sum of $15,000 as previously discussed. He did not give evidence on sentence. The sentencing judge considered that the tender was evidence of remorse and of Mr Chahal's willingness to recognise wrongdoing and to attempt to compensate for it. I am somewhat less convinced of the relationship between the offer of the money and the existence of remorse. However, in the procedural events that have transpired in this Court, it would arguably be procedurally unfair to Mr Chahal to take a different view. I would not, however, wish to be taken as endorsing the proposition that repayment of stolen money or restitution of the proceeds of crime is universally coextensive with a genuine expression of contrition or remorse.
Mr Chahal pleaded guilty to both offences. That is some evidence of remorse.

Deterrence

I consider that there is a need to impose a sentence that includes an element of general deterrence. However, in light of Mr Chahal's personal circumstances and what I consider to be his favourable prospects of rehabilitation, special deterrence is not particularly significant in this case.

Objective seriousness

In my opinion these offences are somewhere below the middle of the range of objective seriousness for offences of this type. By reason of the way in which the offences were planned, they did not involve the use of violence or the significant risk of violence. The use of Mr Ye as an insider meant that Mr Chahal and his co-offenders were able to time their activities so as best to avoid a confrontation with third parties.

Pleas of guilty

Mr Chahal is entitled to a discount for his pleas of guilty to both charges. I consider that the ten percent discount indicated by his Honour on count one is appropriate. However, the discount given by his Honour on count two was disproportionate to the utilitarian value of the plea. Counsel for Mr Chahal in this Court conceded that some slight adjustment should be made if this Court were to resentence Mr Chahal. In my view a discount of 20 percent for the plea on count two is appropriate.

Special circumstances

Having regard to the fact that this is Mr Chahal's first time in custody, I propose to vary the statutory ratio of parole and non-parole periods.

Sentence

Having regard to these matters I would propose to sentence Mr Chahal as follows: 1. On the charge of possessing an offensive weapon (knife) with intent to commit an indictable offence (armed robbery) in company, sentenced to a fixed term of imprisonment of 2 years commencing on 11 March 2016 and expiring on 10 March 2018. 2. On the charge of aggravated (in company) break, enter and steal and commit serious indictable offence (larceny), sentenced to a non-parole period of 2 years and 9 months commencing on 11 March 2017 and expiring on 10 December 2019 with a balance of term of 1 year and 11 months expiring on 10 November 2021.

Conclusion

In my opinion the following orders should be made: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed upon the applicant by G D Woods QC DCJ on 27 May 2016. 4. In lieu of the sentence imposed, sentence the applicant as follows :- 1. On the charge of possessing an offensive weapon (knife) with intent to commit an indictable offence (armed robbery) in company, sentenced to a fixed term of imprisonment of 2 years commencing on 11 March 2016 and expiring on 10 March 2018. 2. On the charge of aggravated (in company) break, enter and steal and commit serious indictable offence (larceny), sentenced to a non-parole period of 2 years and 9 months commencing on 11 March 2017 and expiring on 10 December 2019 with a balance of term of 1 year and 11 months expiring on 10 November 2021.
DAVIES J: I agree with Harrison J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2017

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