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
Category: Principal judgment Parties: Alan George Chesworth (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
J Wilcox (Applicant)
A Bonnor (Crown)
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:
- Date of Decision:
- 26 April 2022
- Before:
- Grant DCJ
- File Number(s):
- 2021/68869
JUDGMENT
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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.
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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.
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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…
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- AGLC
- Chesworth v The King [2023] NSWCCA 115
- Case
- [2023] NSWCCA 115
- Decision Date
CaseChat Overview and Summary
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
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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