CHOMPEAY v Regina - [2011] NSWCCA 96

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: CHOMPEAY v REGINA [2011] NSWCCA 96
Hearing dates: Tuesday 19 April 2011
Decision date: 21 April 2011
Before: Basten JA at 1
R S Hulme J at 9
Hall J at 11
Decision:
(1) That the time for the application for leave to appeal against sentence be granted.
(2) That the sentences of the District Court be set aside.
(3) That the applicant be re-sentenced as follows:-
(a) Count 1: In relation to Count 1, the applicant is sentenced to a non-parole period of 3 years and 9 months to commence on 10 August 2008 and to expire on 9 May 2012 and a balance of term of 1 year and 3 months to expire on 9 August 2013.
(b) Count 2: In relation to Count 2, the applicant is sentenced to a fixed term of 2 years and 4 months to commence on 10 August 2008 and to expire on 9 December 2010.

Catchwords:
APPEAL - criminal - sentencing - failure to apply statutory reduction for plea of guilty - Criminal Case Conference Trial Act 2008 (NSW), s 17(1)(a).

APPEAL - criminal - sentencing - whether appeal court required to exercise whole sentencing discretion afresh once intervention required - whether exercise limited to specific point raised by applicant - Criminal Appeal Act 1912 (NSW), s 6(3).
APPEAL - criminal - sentencing - variation of sentences of co-offenders on appeal - whether similar variation of applicant's sentence required.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Case Conferencing Trial Act 2008
Firearms Act 1996
Weapons Prohibition Act 1998
Cases Cited: Do v R [2010] NSWCCA 182
Douar v Regina [2005] NSWCCA 455
Greer v R [2010] NSWCCA 40
LJ v R [2010] NSWCCA 289
Tran v R [2010] NSWCCA 183
Category: Principal judgment
Parties: CHOMPEAY, Kim v REGINA
Representation: Counsel:
C: V Lydiard
A: B Rigg
Solicitors:
C: S Kavanagh
A: C Hunter

File Number(s): 2009/3282
Decision under appeal

Date of Decision:

2009-06-19 00:00:00

Before:

King DCJ

File Number(s):

2009/3282

Judgment

BASTEN JA : On 19 June 2009, the applicant was sentenced for two offences under the Firearms Act 1996 (NSW) in circumstances explained by Hall J. Having pleaded guilty, it is common ground that the applicant was entitled to receive a sentence in respect of each offence which was 25% less than the term the sentencing court would otherwise have imposed, pursuant to the Criminal Case Conferencing Trial Act 2008 (NSW), s 17(1)(a). Through an oversight on the part of all involved, this provision was not applied, each sentence being reduced by 20%, rather than 25%.

The prosecution accepts that the applicant should have the benefit of the statutory provision, which entails a grant of leave to appeal and a resentencing of the applicant accordingly. This should be done, in accordance with the orders proposed by Hall J.

The only remaining question is whether, in the absence of any other error which would…

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 CHOMPEAY v Regina

Details

AGLC: Chompeay v Regina [2011] NSWCCA 96
Case: [2011] NSWCCA 96
Decision Date: 21 April 2011

CaseChat Overview and Summary

The appellant, CHOMPEAY, appealed against his sentence after being convicted of various criminal offences. The sentencing judge had failed to apply a statutory reduction to the sentence for his plea of guilty under the Criminal Case Conference Trial Act 2008 (NSW). The appeal was heard in the Court of Criminal Appeal. The primary legal issues before the court were whether the appeal court was required to exercise its whole sentencing discretion afresh when an intervention was necessary and whether such exercise was limited to the specific point raised by the appellant. The appellant also sought a variation of his sentence to align it with that of his co-offenders.

The court considered whether the appeal court was required to re-evaluate the entire sentencing process or if it was confined to the specific point raised by the appellant. The court noted that under the Criminal Appeal Act 1912 (NSW), section 6(3), the appeal court's discretion was not unlimited and had to consider the specific grounds of appeal. It was held that the court should not exercise its whole sentencing discretion afresh but instead focus on the specific point raised by the appellant regarding the statutory reduction for his plea of guilty. The court also examined whether a similar variation of the appellant's sentence to that of his co-offenders was necessary. The court concluded that the appeal court's role was to ensure the sentence was just and appropriate given the specific circumstances of the case and the statutory requirements.

The appeal was allowed, and the case was remitted to the District Court for resentencing, taking into account the statutory reduction for the appellant's plea of guilty. The court did not order a variation of the appellant's sentence to align with his co-offenders, emphasising the need for each sentence to reflect the individual circumstances of the offender. The court's decision underscored the importance of correctly applying statutory provisions in sentencing and the limited scope of the appeal court's discretion when addressing specific errors in the original sentencing process.

Orders