Chesworth v The King - [2023] NSWCCA 115

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chesworth v R [2023] NSWCCA 115
Hearing dates: 01 February 2023
Date of orders: 19 May 2023
Decision date: 19 May 2023
Before: Rothman J at [1];
Wilson J at [56];
Yehia J at [57]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.

Catchwords:
CRIME – Appeal against sentence – indicative sentence for s 166, offence greater than jurisdictional limit of Local Court – aggregate sentence informed by irrelevant consideration – error conceded by Crown – resentence necessary – more severe sentence warranted – appeal dismissed.

Legislation Cited:
Crimes Act 1900 (NSW), ss 79, 91H(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(f), 49(2), 53A(2)(b), 53B
Criminal Procedure Act1986 (NSW), ss 166, 267, 268
Drug Misuse and Trafficking Act 1985 (NSW), s25(1)
Firearms Act 1996 (NSW), ss 7A(1), 36(1), 39(1)(a)

Cases Cited:
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
House v the King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v PW [2019] NSWDC 963
Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Principal judgment
Parties: Alan George Chesworth (Applicant)
Crown (Respondent)
Representation:
Counsel:
J Wilcox (Applicant)
A Bonnor (Crown)
Solicitors:
Cater & Blumer Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2021/68869; 2021/83767
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Citation:

[2022] NSWDC 155

Date of Decision:

26 April 2022

Before:

Grant DCJ

File Number(s):

2021/68869

JUDGMENT

ROTHMAN J: The applicant, Alan Chesworth, pleaded guilty to charges of bestiality, firearm and drug offences, together with the possession and dissemination of child abuse material. The details of the charges will be outlined later in these reasons. He was sentenced in the District Court after a plea of guilty to an aggregate sentence of 3 years and 6 months’ imprisonment, including a non-parole period of 2 years and 1 month. Some of the offences for which the applicant was sentenced were offences before the District Court under s 166 of the Criminal Procedure Act1986 (NSW) as related offences.
In the course of dealing with the offences under s 166 of the Criminal Procedure Act, the District Court expressed indicative sentences that, in relation to two such offences, were sentences beyond the jurisdictional limit of the Local Court from which the charges were referred. The applicant appeals the sentence imposed on two grounds, being:

Ground 1: The learned judge erred by nominating indicative sentences for the related child abuse material offences which exceeded the applicable jurisdictional limit;

Ground 2: The sentence imposed was manifestly excessive.

Manifest excess in sentencing is a species of manifest error. It requires that the sentence imposed (in this case the aggregate sentence under appeal) is “unreasonable” or “plainly unjust”. [1]
1. Dinsdale v R (2000) 202 CLR 321 at 325; [2000] HCA 54 at [6] (Gleeson CJ…

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 Chesworth v The King

Details

AGLC: Chesworth v The King [2023] NSWCCA 115
Case: [2023] NSWCCA 115
Decision Date: 19 May 2023

CaseChat Overview and Summary

In the case of Chesworth v The King, the appellant, Chesworth, appealed against his sentence for an offence under section 166, which exceeded the jurisdictional limit of the Local Court. The Crown conceded an error in the original sentencing process, as it had been informed by an irrelevant consideration. The appellant's aggregate sentence was determined by the Local Court, but it was necessary to resentence him in light of the Crown's concession and the nature of the offence. The appeal was ultimately dismissed, but the court found that a more severe sentence was warranted.

The legal issues before the court were whether the Crown's concession of an error in the original sentencing process warranted a resentence, and if so, what the appropriate sentence should be. The court needed to determine whether the aggregate sentence imposed by the Local Court was correct and, if not, what sentence should replace it. Furthermore, the court had to consider whether the appellant's appeal against his sentence should be dismissed, given the nature of the offence and the Crown's concession of error.

The court found that the Crown's concession of error in the original sentencing process warranted a resentence. The court noted that the aggregate sentence imposed by the Local Court was informed by an irrelevant consideration and was therefore incorrect. The court also found that a more severe sentence was warranted due to the nature of the offence. The court emphasised that the appellant's appeal against his sentence should be dismissed, as the court was satisfied that the resentence it imposed was appropriate. The court ordered that the appellant be resentenced to a term of imprisonment of three years and six months, with a non-parole period of two years.

Orders