Chamseddine v R

Court of Criminal Appeal (NSW)|2017-03-27|Before: Hoeben CJ, Walton J, Hulme J

The Applicant's Submissions

Whilst the applicant's submissions concerned the manifestly excessive ground of the appeal, they have been summarised below in so far as they bear upon the resentencing of the applicant.
Contrary to the determination of the sentencing judge that s 66C(2) offence lay in the middle of the range for such offences, those offences should have been assessed as being below the mid-range by virtue of the following factors: 1. The offences were short lived in duration and in one encounter involving digital penetration and indecent assault. 2. The comparable cases relied upon by the sentencing judge were offences of a more serious kind than the present case and not capable of meaningful comparison. 3. The finding of exceptional circumstances with a reduced non-parole period of 10 years suggested that, but for the finding of exceptional circumstances, the non-parole period imposed would have been just over 11 years and 3 months imprisonment. It was submitted it was manifestly excessive on its face.
Counsel for the applicant submitted that the applicant had a low risk of re-offending and that the medical conditions of the applicant were relevant factors to his resentencing. Reliance was placed upon the affidavit of Mr Refenes (who was the applicant's solicitor) which attached various medical records received from Justice Health NSW on 24 March 2017.
According to the clinical assessment, it was contended, the applicant had existing health conditions, namely asthma, benign prostatic hyperplasia, chronic kidney disease, gout, hyperparathyroidism, hypertension, osteoarthritis and osteopenia. On 28 April 2014, the applicant was transferred to Blacktown hospital for an apparent life threatening condition. The nature of the life threatening condition was not specified. On 23 January 2017 the applicant was transferred to Prince of Wales Hospital allegedly with a "mini stroke".

Crown Submissions on Resentencing

It was submitted that the precise age of the complainant at the date of the offences was a relevant feature to the seriousness of the offence.
The Crown further submitted that, in evaluating the medical information relied upon by the applicant, it was difficult to unravel what conditions were pre-existing and what conditions existed at the time of the sentence.
In supplementary written submissions, the Crown submitted that the medical material provided by the applicant did not provide evidence that the applicant had suffered a mini stroke. Nor was there evidence to suggest the applicant's medical condition could not be adequately managed by prison authorities. The Crown submitted that the medical conditions suffered by the applicant were not matters which would warrant an amelioration of sentence in all the circumstances.

Resentencing

Having found error in the sentencing judgment, this Court must exercise the sentencing discretion afresh taking into account the purposes of sentencing and the factors, inter alia, the Sentencing Act requires to be considered: Kentwell at [42] - [43]; Lehn at [60], [65], [86] and [128]. Such an exercise involves the exercise of an independent discretion with a sentence fixed which is appropriate having regard to the offender and the offence.
It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]: "This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39]."
There may be added to that general observation that the s 66C(2) offences with which the applicant was convicted carry significant maximum penalty of 20 years imprisonment. The maximum penalty for the s 61M(2) offences is 10 years imprisonment.
There are some particular aspects of the matter which should result in a conclusion that the offences in this matter are very serious.
The complainant was assaulted on four separate occasions over a three week period. As the sentencing judge remarked, whilst there was no threat of force, the complainant was clearly scared. The assaults were of a relatively short duration but that fact does not reduce the objective seriousness of the offence: R v Daley [2010] NSWCCA 223 at [48] (per Price J with whom Hodgson JA and Fullerton J agreed); Sharma v R [2017] NSWCCA 85 at [55] (per Beazley P with whom Walton and R A Hulme JJ agreed).
Further, whilst there was no additional violence over the inherent acts involved in the offences themselves, the offences involved premeditation and planning including taking the complainant to a remote location.
A feature of aggravation in relation to all offences was the vulnerability of the complainant who was afflicted with impairments in both hearing and speech: s 21A(2)(l).
As to the s 66C(2) offences, the following particular matters should be taken into account. First, there was a significant age variance between the applicant and the complainant which added to the seriousness of the offence because of the degree of exploitation of the youth of the complainant. Secondly, without duplicating the aggravating factor of authority, it is relevant to have regard to the degree of trust reposed in the applicant by the complainant and her parents: R v TAB [2002] NSWCCA 274 at [112] (per Levine J).
In the absence of there having been a prescribed standard non-parole period for the s 66C(2) offences at the relevant time it is unnecessary on resentencing for this Court to make a finding of objective seriousness relative to the middle of the range. However, having regard to the various matters set out above, it cannot be said that the assessment of the sentencing judge was not open to him.
In relation to the s 66M(2) offences, there are further particular features that should be mentioned in the context of objective seriousness. First, whilst there was no digital penetration of the vagina in these counts, there was physical contact involved in manipulating the complainants hand on to the applicant's groin and crotch area and touching the complainant's breast outside her clothing. Secondly, the complainant was of a young age. It may be repeated that there was an absence of coercion by threats.

Subjective Factors

As observed by the trial judge: 1. The applicant is 67 years of age. 2. He attended school until year 4 and obtained only basic Arabic literary skills. He resumed school at 14 but was again taken out of school two years later.
The applicant has a stable and supportive relationship with his wife and has four sons. He has no prior convictions. He has been assessed as having a low prospect of reoffending. Character evidence was given on his behalf.
The trial judge found that the applicant's lack of prior convictions and character references were not a mitigating factor on the basis that his good character was a factor of assistance to him in the commission of the offences. This approach was adopted because it was found that the applicant would not have been employed as a driver of the children if he had any prior conviction in relation to children. Reliance was placed, in this respect, upon O'Brien v R [2013] NSWCCS 197 (Per Adamson J). I consider, however, that this case is of a different character to O'Brien v R and that some allowance by way of mitigation should be allowed for the applicant's past good character.
On the other hand, there is nothing before the Court which would suggest that any other approach to remorse and contrition than that adopted by the sentencing judge should be adopted by this Court having regard to the psychologist and pre-sentence reports.
A significant factor raised on behalf of the applicant was his medical history
The applicant relied, in this respect, upon the affidavit of Mr Refenes but made no submission as to the matter. In the affidavit Mr Refenes stated that he was instructed that the applicant suffered in January 2017 a "mini stroke." Mr Refenes instructions were that the applicant was admitted to Royal Prince Alfred Hospital for seven days and that he takes medication for blood pressure, heart problems, gut and back pain.
The Crown accepted that the medical circumstances of the applicant must be taken into account in resentencing him. However, the Crown submitted that, based upon an examination of the medical records attached to the affidavit of Mr Refenes, the Court should give no weight in resentencing to those medical problems. That submission was in the following terms: Perusal of the Justice Health notes attached to the affidavit of Mr Refenes reveals that the reason for the applicant's presentation at hospital on 23 January 2017 was "sepsis secondary to lower limb cellulitis" (Discharge notes dated 30 January 2017 at page 38-47 of annexure to affidavit). The discharge plan notes of 30 January 2017 state the Principal Diagnosis was "Cellulitis of lower limb (ED Medical)". The discharge plan included the following: "Osman is safe for discharge back to LB J. He can continue on oral amoxicilin 500 mg tds for 2 further days. Will need daily wound dressing. Likely that the blistering and desquamation may persist for up to 1 week. Dressing and wound care is the best management for this. Antibiotics not required beyond 3 days, unless he becomes systemically unwell with fever/rigors etc again. Carotid Doppler ultrasound. Iron infusion. Pain relief- regular Panadol lgplus endone 5mg" There appears to be no specific reference in the discharge notes on 30 January 2017 to the applicant having suffered a 'mini stroke'. However, the following note appeared (page 39 of affidavit): 7th nerve abnormality "We noted that Osman had an asymmetrical smile (L sided droop) with some ptosis L eye". CT-brain and MRL brain - no evidence of a CVA. Osman already on asprin too. We have added atorvastatin 40mg node (to be ungraded to 80 mg once tolerating at LB J). L vertebral artery has high grade stenosis on the MRI brain. For carotid dopplers at LB. ?Due [sic] to Bells Palsy". It appears from the notes that there is no evidence to support the diagnosis of the applicant having suffered a "mini stroke". Nor is there any evidence in the Justice Health notes to suggest that the applicant's medical condition cannot be managed adequately by prison authorities. Whilst the affidavit and reports from Justice Health indicate that the applicant has medical issues, these are not matters that would warrant an amelioration of sentence in all the circumstances (See MPL v R [2014] 183 at [36]-[38]).
On the basis of the examination of the medical records attached to the affidavits of Mr Refenes, I consider that the submissions by the Crown in this respect are sound.
It is necessary that general deterrence feature in this matter particularly having regard to the vulnerability of the complainant and the harm caused to her by the offences.
I consider the sentencing judge's conclusion that special circumstances should be found was appropriate. I propose to apply his Honour's variation to the statutory ratio.

Conclusion

In those circumstances, it is appropriate that the leave to appeal be granted and the appeal upheld in regard to the legal error identified in this judgment.
The seriousness of the offence permits no other sentence than imprisonment. I propose to impose an aggregate sentence having regard to offences concerning a single victim.
As to the principle of totality, I note that the criminality of counts 1, 3, 4 and 5 is quite similar but the complainant was assaulted on four separate occasions over a three week period. The criminality of counts 2 and 6 is less than the s 66C(2) offences but there is a standard non-parole period for those offences. I will fix a non-parole period in the indicative sentences for those offences (see s 54B(4) of the Sentencing Act).
Bearing in mind those considerations. I propose that the applicant be sentenced to an aggregate period of imprisonment of 12 years with a non-parole period of 8 years commencing 15 March 2015 and expiring on 14 March 2023 with an additional term of 4 years imprisonment to 14 March 2027. The indicative sentences for each offence are: 1. Counts 1, 3, 4 and 5: a term for each count of imprisonment of 6 years. 2. Counts 1 and 6: 3 years imprisonment with a non-parole period of 2 years.

Orders

In the result, I would propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed on 18 September 2015 be quashed. 4. The applicant is sentenced to a term of imprisonment of 12 years commencing 15 March 2015 consisting of a non-parole period of 8 years expiring on 14 March 2023 and a balance of the term of 4 years expiring on 14 March 2027.
R A HULME J: The sentencing judge unnecessarily stated precisely the degree by which indicative sentences would be accumulated, albeit notionally, so as to arrive at an aggregate sentence. It is one of the ways that aggregate sentencing has simplified the task of sentencing for multiple offences that there is no legislative requirement to do so. In embarking upon this unnecessary course the judge fell into error with the result that the Crown has conceded that the Court must proceed to consider the question of sentence afresh. Whilst the error is unfortunate, this Court cannot be too critical: Beale v R [2015] NSWCCA 120 at [3]-[5].
I agree with the reasons of Walton J and with the orders he proposes.

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Grounds of Appeal and the Course of the Proceedings

The single ground of appeal was the accumulated sentences imposed by the sentencing judge were manifestly excessive.
In its written submissions, the Crown made a concession that there was an error in the sentencing judgment, namely that the sentencing judge erred by taking into account, as an aggravating factor, the complainant's age in respect of all counts of aggravated sexual intercourse with a child between 10 and 14 years. It is unnecessary to further consider these issues in light of the further development at the hearing of the matter described below.
In the course of the proceedings, Hoeben CJ at CL raised with the parties the prospect that the sentencing judgment contained an error of a different character, namely in the misapplication of the sentencing judge's own determination of accumulation. The error raised by the Court, which received no demur from the parties, was that the actual accumulation adopted by the sentencing judge in the sentence imposed was, in fact, 3 years instead of the 15 months referred to at [140] of the remarks on sentence. Whilst the question of accumulation or concurrence became irrelevant once his Honour decided to impose an aggregate sentence: Flaherty v R; R v Flaherty [2016] NSWCCA 188 at [80] per Simpson JA (with whom Hoeben CJ at CL agreed), the misapplication of his Honour's stated approach to sentencing in that respect represented appealable error.
Whilst no application was formally made to amend the grounds of appeal to reflect the exchange between counsel and the Court as to the erroneous application of the accumulation found by the sentencing judge, I shall treat the parties acquiescence to the existence of that error and the need for a consequential resentencing process as having had that effect. In the result, I shall proceed upon the basis that legal error had been established in those terms. It follows, in accordance with the principles stated in Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 and Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255, this judgment shall ultimately be directed to the resentencing of the applicant.
The Court asked the Crown whether it would be in a position to make submissions as to the resentencing exercise at the time of the hearing of the matter. The Crown agreed that it was able to make submissions in that respect but also requested a period of time, subsequent to the hearing, to seek information from Justice Health in response to the additional material concerning resentencing received from the applicant during that hearing (affidavit of Emmanuel Refenes sworn 27 March 2017). Leave was granted to do so. No evidence was received as such but the Crown did file a supplementary submission on 10 April 2017 based upon the material relied upon by the applicant. The applicant did not seek to put any further material before the Court.

Objective Seriousness

In assessing the objective seriousness, the sentencing judge found that the applicant exploited the age and vulnerability of the victim. The sentencing judge took into account the victim's special hearing and speaking needs as an aggravating factor.
His Honour found that: In terms of the position occupied by a given offence on the spectrum of offences of this kind, the younger the child, the more serious the offence…[the victim] was aged 11, that is, she was aged closer to 10 than she was to 16 - in relation to counts 2 and 6, and in relation to counts 1, 3, 4, and 5, she was closer to 10 than she was to 14.
The sentencing judge found that the offences involved premeditation and planning at a remote location and the significant age difference (50 years) between the complainant and the applicant.
However, the sentencing judge stated that it was important to consider the actual character of the assault, including the degree of physical contact involved. He found there was no threat of force, a relatively short period of offending and there was no additional violence over the inherent acts involved.
For counts 1, 3, 4 and 5, the sentencing judge (referring to the cases of R v Hibberd (2009) 194 A Crim R 1 at [56]; R v Da Silva (unrep, 30/11/95, NSWCCA), per Grove J at [3] and R v King [2009] NSWCCA 117 at [36]) classified the offences as mid-range due to the particular circumstances of the offence and the vulnerability of the victim.
The sentencing judge took into account the abuse by the offender of his position of trust as an aggravating factor for counts 2 and 6.
As to counts 2 and 6,the sentencing judge found: … there was no actual genital connection. However, in count 2, the offender manipulated Ms MP's hand to touch the offender's crotch, but over his pants. In count 6, the offender touched Ms MP's breast outside her clothes. … the criminality of counts 2 and 6 are at the lower end of the range of objective criminality essentially because there was no additional violence or terror involved over and above what is inherent in the acts themselves. Further, I find that those acts, while reprehensible, occurred contemporaneously or at about the same time with the other acts constituting the offences under counts 1, 3, 4, and 5.

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