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Chia v The King

Chia v The King

Case [2023] NSWCCA 63 22 March 2023

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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
Doudar v R [2021] NSWCCA 37
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) NSWLR 205; [2016] NSWCCA 255
Scott v R [2020] NSWCCA 81
SF v R [2022] NSWCCA 216
Towney v R [2022] NSWCCA 289
Valentine v R [2020] NSWCCA 116

Category: Principal judgment
Parties: Jeffrey Keong Chia (Applicant)
Regina (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
M M Swift (Respondent)
Solicitors:
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.
WILSON J: I agree with Dhanji J.
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.
The applicant pleaded guilty in the Local Court on 14 June 2018 to four counts of dishonestly obtain property by deception…

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 Chia v The King

Details

AGLC: Chia v The King [2023] NSWCCA 63
Case: [2023] NSWCCA 63
Decision Date: 22 March 2023

CaseChat Overview and Summary

The appeal in Chia v The King involved a defendant who had initially pleaded guilty to fraud offences and was subsequently convicted of sexual assault offences. The convictions pertaining to the sexual offences were challenged on appeal, leading to their quashing and a retrial order. Upon retrial, the defendant was found guilty on the sexual assault charges and was sentenced to imprisonment. The court was tasked with determining whether the sentencing judge had appropriately applied the ceiling principle in determining the aggregate sentence for the defendant's offences. The ceiling principle refers to the requirement that a sentence should not exceed the maximum penalty that could be imposed for the most serious offence. In this case, the court noted that the principle was not properly considered during the sentencing process.

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