Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Chia v R [2023] NSWCCA 63 Hearing dates: 15 March 2023 Date of orders: 22 March 2023 Decision date: 22 March 2023 Before: Leeming JA at [1]
Wilson J at [2]
Dhanji J at [3]Decision: (1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentence imposed on the applicant in the District Court on 8 August 2022 is quashed.
(4) In lieu thereof, impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and fix:
(a) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) an aggregate sentence of 6 years and 6 months commencing on 7 March 2019 and expiring on 6 September 2025;
(b) a non-parole period of 4 years and 3 months commencing on 7 March 2019 and expiring on 6 June 2023; and
(c) a balance of term of 2 years and 3 months commencing on 7 June 2023 and due to expire on 6 September 2025.
Catchwords: CRIME – Appeals – Appeal against sentence – fraud offences – guilty plea entered for fraud offences – sexual assault offences – convictions with respect to sexual offences were appealed – convictions quashed and retrial ordered – applicant tried on fresh indictment containing sexual assault offences only – the ceiling principle – fundamental principle not drawn to sentencing judge’s attention – aggregate sentence to be imposed – leave to appeal granted – appeal allowed – resentence
Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 192E(1)(a), 192E(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(2A) 53A
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
Evidence Act 1995 (NSW), s 191
Cases Cited: Armstrong v R [2015] NSWCCA 273
Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Category: Principal judgment Parties: Jeffrey Keong Chia (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
I McLachlan (Applicant)
M M Swift (Respondent)
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2017/369241 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Date of Decision:
- 8 August 2022
- Before:
- Wilson SC DCJ
- File Number(s):
- 2017/369241
JUDGMENT
-
LEEMING JA: I agree with Dhanji J.
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WILSON J: I agree with Dhanji J.
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DHANJI J: The applicant, Mr Jeffrey Keong Chia, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Wilson SC DCJ in the District Court at Sydney on 8 August 2022.
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The applicant pleaded guilty in the Local Court on 14 June 2018 to four counts of dishonestly obtain property by deception…
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- AGLC
- Chia v The King [2023] NSWCCA 63
- Case
- [2023] NSWCCA 63
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the sentencing judge had erred in not applying the ceiling principle in setting the aggregate sentence. The court examined the sentencing remarks and found that the principle was not explicitly addressed by the sentencing judge. This omission was significant as it impacted the final determination of the defendant's sentence. The appeal raised the question of whether this oversight warranted a re-sentencing of the defendant. The court also considered the appropriate legal framework and precedents to determine whether the error was material enough to warrant a re-sentencing.
In its reasoning, the court concluded that the sentencing judge's failure to apply the ceiling principle was indeed a material error that affected the final sentence. This oversight was significant enough to warrant a re-sentencing of the defendant. The court acknowledged the importance of adhering to the ceiling principle in sentencing to ensure that the punishment fits the crime without exceeding the legal limits for the most serious offence. Consequently, the court allowed the appeal and ordered a re-sentencing of the defendant. The final orders of the court included a re-sentencing hearing to appropriately apply the ceiling principle and determine an appropriate aggregate sentence for the defendant's convictions.
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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