Chemaissem v R [2021] NSWCCA 66

Chemaissem v R [2021] NSWCCA 66

By majority, the sentencing judge erred in assessing objective seriousness because the sentence proceedings had been conducted on the basis that the Crown conceded the victim's injuries did not amount to really serious harm, which the majority treated as a concession that the injuries were not substantial. The sentencing judge did not refer to Professor Duflou's report or the Crown's concession, did not raise any concern about departing from that position, and the structure of the reasons showed the injuries were treated as aggravating. Error being established, the applicant was resentenced after taking into account the mitigating character of the injuries, limited provocation, the...

Jurisdiction
Australia
Judgment Date
15 April 2021
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court of NSW
Outcome
Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced.
Legal Topics
['wounding With Intent to Cause Grievous Bodily Harm' 'sentence Appeal' 'objective Seriousness' 'aggravating and Mitigating Factors' 'substantial Injury' 'road Rage' 'provocation' 'manifest Excess' 'resentencing']
['criminal Law' 'sentencing'] ['wounding With Intent to Cause Grievous Bodily Harm' 'sentence Appeal' 'objective Seriousness' 'aggravating and Mitigating Factors' 'substantial Injury' 'road Rage' 'provocation' 'manifest Excess' 'resentencing']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court of NSW

Legal Issues

  1. 1 ["Whether the sentencing judge erred by failing to find as a mitigating factor that the victim's injuries were not substantial under s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)." "Whether the sentencing judge treated the victim's injuries as an aggravating factor contrary to the way the sentence proceedings were conducted and the Crown's position before the sentencing judge." 'Whether the sentence imposed was manifestly excessive.' 'What sentence should be imposed on resentencing if error were established.']

Ratio Decidendi

By majority, the sentencing judge erred in assessing objective seriousness because the sentence proceedings had been conducted on the basis that the Crown conceded the victim's injuries did not amount to really serious harm, which the majority treated as a concession that the injuries were not substantial. The sentencing judge did not refer to Professor Duflou's report or the Crown's concession, did not raise any concern about departing from that position, and the structure of the reasons showed the injuries were treated as aggravating. Error being established, the applicant was resentenced after taking into account the mitigating character of the injuries, limited provocation, the...

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced.

Orders

  • ['Leave to appeal is granted.' 'The appeal is allowed.' 'The sentence imposed in the District Court is quashed.' 'In lieu thereof, the applicant is sentenced to imprisonment for a period of 6 years to date from 1 May 2019 and to expire on 30 April 2025.' 'Specify a non-parole period of 3 years and 5 months...