Chemaissem v R [2021] NSWCCA 66

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chemaissem v R [2021] NSWCCA 66 Hearing dates: 1 December 2020 Date of orders: 15 April 2021 Decision date: 15 April 2021 Before: Brereton JA at [1] Bellew J at [34] Campbell J at [98] Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentence imposed in the District Court is quashed. (4) 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. (5) Specify a non-parole period of 3 years and 5 months imprisonment commencing on 1 May 2019 and expiring on 30 September 2022. Catchwords: CRIMINAL LAW – Offences – Sentence – Appeal – Wounding with intent to cause grievous bodily harm – "Road rage" incident – Whether the injury to the victim was substantial – Where Crown had submitted to the sentencing judge that the injury was not "really serious" – Where that position had apparently been accepted by counsel for the offender – Whether the Crown's statement amounted to a concession that the injury was not substantial – Where a proper reading of the reasons of the sentencing judge indicated a finding contrary to the position taken by the Crown – Error established – Applicant re-sentenced Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Anderson v R (2008) 187 A Crim R 542; [2008] NSWCCA 211 Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379 Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209 Horvath v R [2019] NSWCCA 285 Hughes v R [2018] NSWCCA 2 Huynh v R (2008) 188 A Crim R 287; [2008] NSWCCA 216 Kennedy v R [2016] NSWCCA 123 Kerr v R (2016) 78 MVR 191; [2016] NSWCCA 218 Kresovic v R [2018] NSWCCA 37 Majorstake Limited v Curtis (2008) 1 AC 787 MLP v R [2014] NSWCCA 183 Mohamad v R [2005] NSWCCA 406 R v Barakat [2004] NSWCCA 201 R v Brown [1994] 1 AC 212; [1993] 2 All ER 75; [1993] 2 WLR 556 R v Donovan [1934] 2 KB 498 R v Gittani [2002] NSWCCA 139 R v Mendez [2002] NSWCCA 415 R v Pham [2013] NSWCCA 217 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 R v Williams [2011] NSWSC 583 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Texts Cited: Concise Oxford Dictionary, 12th ed (2011) Oxford English Dictionary (2nd Edition) Category: Principal judgment Parties: Shams Eldine Chemaissem – Applicant Regina - Respondent Representation: Counsel: A Francis and R Baldeo – Applicant D Beaufils – Respondent