Legal Research
Cases
Cherdchoochatri v R

Cherdchoochatri v R

Case [2013] NSWCCA 118 20 May 2013

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cherdchoochatri v R [2013] NSWCCA 118
Hearing dates: 27 March 2013
Decision date: 20 May 2013
Before: Emmett JA at [1]; Simpson J at [12]; Latham J at [65]
Decision:
(i) Leave to appeal granted;
(ii) Appeal allowed, sentence imposed in the District Court set aside;
(iii) Proceedings remitted to the District Court for further hearing and determination.

Catchwords: CRIMINAL LAW - appeal - sentencing - severity - plea of guilty - import marketable quantity of border controlled drug (heroin) - whether applicant was denied procedural fairness in that the sentencing judge failed to warn that he did not accept the uncontested evidence of duress - whether sentencing judge erred in failing to find that the applicant had acted under duress when he committed the offence for which he stood for sentence - Ground 1 made out - appeal allowed - matter remitted for further hearing in District Court
Legislation Cited: Criminal Code (Cth)
Evidence Act 1995
Cases Cited: Cameron v The Queen [2002] HCA 6; 209 CLR 339
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Lindsay v R [2012] NSWCCA 124
O'Neil-Shaw v R [2010] NSWCCA 42
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
Tiknius v R [2011] NSWCCA 215
Category: Principal judgment
Parties: Gulachat Cherdchoochatri (Applicant)
Regina (Respondent)
Representation: Counsel:
D Barrow (Applicant)
L Crowley (Respondent)
Solicitors:
Legal Aid Commission NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2011/90778
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-10-14 00:00:00

Before:

Bennett DCJ

File Number(s):

2011/90778

Judgment

EMMETT JA: The applicant has sought leave to appeal against the severity of the sentence imposed upon him in the District Court, following his plea of guilty to a charge that he imported into Australia a marketable quantity of heroin. He claims that he was denied procedural fairness in the course of the sentencing hearing.

Before giving oral evidence at the sentencing hearing, the applicant provided written submissions to the District Court. The submissions raised, as a mitigating factor on sentence, duress falling short of defence to criminal liability. However, while the submissions referred to the relevant legal principles and the authorities supporting those principles, they made no mention of the factual basis upon which the Court should make a finding of duress.

In the course of the sentencing hearing, the applicant gave evidence of duress that was brought to bear upon him prior to the commission of the offence. The applicant had given no prior notification of the facts about which he gave oral evidence. In the course of oral address, the applicant's counsel referred to the issue of duress. After referring briefly to the applicant's evidence as to duress, his counsel commented that that evidence was not challenged by the Crown.

The submission was made on behalf of the applicant by his counsel that, while he was to receive a financial gain for the importation of…

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 Cherdchoochatri v R

Details

AGLC: Cherdchoochatri v R [2013] NSWCCA 118
Case: [2013] NSWCCA 118
Decision Date: 20 May 2013

CaseChat Overview and Summary

The appellant, Cherdchoochatri, appealed against his sentence imposed in the District Court of Western Australia. He pleaded guilty to importing a marketable quantity of a border controlled drug, specifically heroin. The appeal was heard in the Court of Appeal of the Supreme Court of Western Australia, where the issues were whether Cherdchoochatri was denied procedural fairness due to the sentencing judge's failure to warn him that he did not accept the uncontested evidence of duress, and whether the sentencing judge erred in not finding that the appellant acted under duress.

The Court of Appeal found that the sentencing judge failed to warn Cherdchoochatri that he did not accept the uncontested evidence of duress, which was a fundamental aspect of the appellant's case. This omission deprived Cherdchoochatri of procedural fairness. Additionally, the court held that the sentencing judge should have considered the evidence of duress in determining the appropriate sentence, as it was a mitigating factor. The court concluded that the sentencing judge's failure to properly consider the evidence of duress constituted an error in the sentencing process.

As a result of these findings, the Court of Appeal allowed the appeal, holding that the appellant was denied procedural fairness. The matter was remitted to the District Court for further hearing, allowing the sentencing judge to properly consider the evidence of duress and re-sentence Cherdchoochatri accordingly. The court did not specify any further orders beyond the remittal.

Orders