Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Chaloner v R [2018] NSWCCA 59 Hearing dates: 4 April 2018 Date of orders: 04 April 2018 Decision date: 04 April 2018 Before: Basten JA at [1];
Rothman J at [22];
Garling J at [23]Decision: (1) Grant leave to appeal with respect to the aggregate sentence imposed on the applicant in the District Court on 2 March 2017.
(2) Quash the sentence imposed by the District Court.
(3) Sentence the applicant to imprisonment for an aggregate term of 5 years 3 months with a non-parole period of 3 years 3 months, to date from 20 December 2016.
(4) The applicant will be eligible for release on parole on 19 March 2020.Catchwords: CRIME – appeal against sentence – finding of special circumstances – Crown conceded trial judge’s nominal reduction of non-parole period affected by error –whether Court should intervene
CRIME – appeal against sentence –applicant and co-offender received identical sentences – Crown conceded trial judgment affected by error - where co-offender’s sentence quashed and co-offender resentenced for same error by differently constituted Court of Criminal Appeal – circumstances in which Court may depart from earlier decision
CRIME – appeal against sentence – finding as to purpose for retaining parts of cannabis plant – whether for production of cannabis resin – whether finding open on evidence – inference drawn from surrounding circumstancesLegislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 Cases Cited: Gumbleton v R [2017] NSWCCA 314
Kay v R; Ellis v R [2017] NSWCCA 218
Lin v R [2018] NSWCCA 13 and Tarrant v R [2018] NSWCCA 21Category: Principal judgment Parties: Steven Allan Chaloner (Appellant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Mr T Game SC/Mr J Brock (Appellant)
Mr D Kell SC/Mr M Pulsford (Respondent)
Lawler Magill Solicitors (Appellant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2016/191690 Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Date of Decision:
- 2 March 2017
- Before:
- Wells SC DCJ
- File Number(s):
- 2016/191690
Judgment
-
BASTEN JA: On 23 June 2016 a number of men were arrested at Mount Burrell in northern New South Wales and charged in relation to the enhanced indoor cultivation of cannabis and the supply of a significant quantity of cannabis leaf, together, in the case of the applicant, with a further charge of supply of cannabis resin. Four of the men were sentenced by Judge Wells. The principals and organisers were the present applicant, Steven Allan Chaloner, and Edward Garry Gumbleton. They were sentenced jointly, on 2 March 2017, but after the sentencing of two lesser offenders, Clinton Ellis and Zachariah Kay.
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All four offenders appealed from their respective sentences of imprisonment. Ellis and Kay came before this Court in August 2017; [1] Gumbleton came before this Court later in 2017,[2] and the applicant comes before the Court in April 2018, the Court being differently constituted on each occasion. Separate hearings with respect to persons who may be described as “co-offenders” may…
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- AGLC
- Chaloner v The Queen [2018] NSWCCA 59
- Case
- [2018] NSWCCA 59
- Decision Date
CaseChat Overview and Summary
The primary legal issues centred on the impact of an acknowledged error in the trial judge's assessment on the sentencing process and the consistency of the Court's approach in such circumstances. The court had to determine whether to intervene in the sentence, particularly in light of the Crown's concession that the error affected the trial judge's decision. Additionally, the court had to consider whether to deviate from a previous decision in a similar case involving a co-offender, who had been resentenced by a differently constituted Court of Criminal Appeal.
The Court examined the effect of the trial judge's error on the sentence and the principles guiding the Court's intervention in sentencing. It noted the Crown's concession and the similarity to a previous case where a co-offender's sentence was quashed and subsequently resentenced. The Court concluded that the error in the trial judge's assessment necessitated intervention to ensure a just sentence. It also found that the circumstances justified departing from the earlier decision, considering the error's impact on the sentence and the need for consistency in sentencing.
The Court quashed Chaloner's sentence and remitted the matter to the Court of Criminal Appeal for resentencing. This decision underscored the importance of accurate judicial assessment in sentencing and the Court's willingness to correct errors that affect the fairness and consistency of the sentencing process.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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