Chaloner v The Queen - [2018] NSWCCA 59

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 circumstances
Legislation 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 21
Category: Principal judgment
Parties: Steven Allan Chaloner (Appellant)
Regina (Respondent)
Representation:
Counsel:
Mr T Game SC/Mr J Brock (Appellant)
Mr D Kell SC/Mr M Pulsford (Respondent)
Solicitors:
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chaloner v The Queen

Details

AGLC: Chaloner v The Queen [2018] NSWCCA 59
Case: [2018] NSWCCA 59
Decision Date: 04 April 2018

CaseChat Overview and Summary

In Chaloner v The Queen, the appellant, Chaloner, sought to appeal against his sentence, arguing that the trial judge’s findings regarding special circumstances and the nominal reduction of the non-parole period were influenced by an error. The Crown acknowledged that the trial judge's decision was affected by the error and suggested the Court should intervene to correct it. The appeal raised questions about the extent to which the Court should modify sentences when an error has been identified in the trial judge’s assessment.

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