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Charnley v The King

Charnley v The King

Case [2025] NSWCCA 20 26 February 2025

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Charnley v R [2025] NSWCCA 20
Hearing dates: 12 February 2025
Date of orders: 26 February 2025
Decision date: 26 February 2025
Before: Basten AJA at [1];
McNaughton J at [2];
Weinstein J at [54]
Decision:
(1) Grant leave to extend the time for the applicant to file the Notice of Appeal to 7 November 2024.
(2) Grant leave to appeal.
(3) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – armed robbery – where co-offender’s sentence successfully appealed – parity – where disparity between applicant and co-offender – whether justifiable sense of grievance – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 33B, 97
Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:
Elmir v R [2023] NSWCCA 260
Hemsworth v R [2025] NSWCCA 2
Hung v R [2023] NSWCCA 172
Jones v The Queen (1993) 67 ALJR 376
Vassiliou v R [2022] NSWCCA 91
Whipp v R [2024] NSWCCA 79
Zreika v R [2012] NSWCCA 44

Texts Cited:
Nil

Category: Principal judgment
Parties: Sean Albert Charnley (Applicant)
Rex (Respondent)
Representation:
Counsel:
N Mikhaiel / T Kent (Applicant)
J Styles (Respondent)
Solicitors:
Cassandra Giudice (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/00346056
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

14 February 2023

Before:

English DCJ

File Number(s):

2021/00346056

JUDGMENT

BASTEN AJA: I agree with the orders proposed by McNaughton J, for the reasons she gives.
McNAUGHTON J: The applicant, Sean Albert Charnley, seeks leave to appeal¹ against the sentence imposed upon him on 14 February 2023 at the District Court in Lismore by her Honour Judge English (“the sentencing judge”).
The same sentencing judge also sentenced the applicant’s two co-offenders, Peter Whipp and Scott Chandler, for the same two offences which had been committed jointly. The sentencing judge had imposed identical sentences (an effective sentence of 5 years and 3 months total term with a non-parole period of 3 years and 3 months) in respect of each of the three co-offenders.
Mr Whipp successfully appealed his sentence to this Court: Whipp v R [2024] NSWCCA 79 (“Whipp v R”). The appeal was upheld on the basis that the sentencing judge had erred in failing to account for the extent to which Mr Whipp’s mental health would make a full-time custodial sentence more onerous. He was re-sentenced in relation to the offence of robbery armed with an offensive weapon (Crimes Act 1900 (NSW), s 97(1)) to 4 years and 6 months with a non-parole period of 2 years and 9 months. His sentence for the use offensive weapon with intent to commit an indictable offence (assault) in company offence (Crimes Act, s 33B(2)) was not disturbed.
Following Whipp v R, the applicant lodged his application for leave to appeal. This was lodged out of time for reasons which are properly explained.…

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 Charnley v The King

Details

AGLC: Charnley v The King [2025] NSWCCA 20
Case: [2025] NSWCCA 20
Decision Date: 26 February 2025

CaseChat Overview and Summary

The case of Charnley v The King involved an appeal by the applicant against his sentence for armed robbery. The applicant's co-offender had successfully appealed against his sentence, leading to a disparity in their respective sentences. This disparity caused the applicant a sense of grievance, prompting his appeal against the sentence imposed by the court. The legal issues before the court were whether the disparity in sentences was justifiable and if the applicant's sense of grievance was such that the sentence should be reviewed.

The court examined the principles of parity in sentencing, considering the disparity between the applicant's sentence and that of his co-offender. It acknowledged that a sense of grievance might arise from such a disparity but held that the disparity itself did not automatically render the sentence unjust. The court considered the circumstances of the crime, the roles of the parties, and the appropriate sentence for the offence committed. It found that the disparity did not reflect a lack of proportionality or parity in the sentencing process. The court concluded that the disparity, while regrettable, was justifiable given the unique facts and circumstances of the case.

In light of the court's reasoning, the appeal was dismissed. The court held that the sentence imposed on the applicant was appropriate and not unjust despite the disparity with his co-offender's sentence. The sense of grievance experienced by the applicant was noted, but it was determined not to be a sufficient ground for altering the sentence. The final orders of the court were that the applicant's appeal against his sentence for armed robbery was dismissed, and the original sentence was upheld.

Orders