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R v Chandler; Chandler v R

R v Chandler; Chandler v R

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Case Copied 28 June 2012 53 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Chandler; Chandler v R [2012] NSWCCA 135
Hearing dates: 8 June 2012
Decision date: 28 June 2012
Before: Bathurst CJ at [1]
Basten JA at [2]
Hoeben JA at [10]
McClellan CJ at CL at [100]
Johnson J at [101]
Decision:
Crown appeal dismissed.
Grant leave to appeal to the applicant but dismiss the appeal.

Catchwords: CRIMINAL LAW - Crown appeal against sentence - robbery and assault with intent to rob offences - whether sentencing judge erred in his approach to issue of mental illness - offender with lifelong mental illness problems - relevance of specific and general deterrence - abuse of drugs and mental illness both contributing to commission of offences - sentences imposed not manifestly inadequate - APPEAL against sentence by applicant - parity - considerations relevant to operation of parity principle - different sentencing judges - whether later sentencing judge should go behind findings of earlier sentencing judge - whether sentencing judge should go behind exercise of prosecutorial discretion to examine parity of treatment with regard to co-offenders charged with different offences - whether that issue properly arose on facts - no scope for operation of parity principle.
Legislation Cited: Crimes Act 1900 - s59(2), s94, s97(1), s99, s154A(1)(b), s349,
Criminal Appeal Act 1912 - s55D
Cases Cited: Dwayhi v R; Bechara v R [2011] NSWCCA 67; 205 A Crim R 274
El Jalkh v R [2011] NSWCCA 236
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Green v The Queen; Quinn v The Queen [2011] HCA 49, 86 ALJR 36
House v The King [1936] HCA 40; 55 CLR 499
Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
OM v R [2009] NSWCCA 267
R v Green and Quinn [2010] NSWCCA 313; 207 A Crim R 148
R v Hemsley [2004] NSWCCA 228
R v Henry & Ors [1999] NSWCCA 111; 46 NSWLR 346
R v Israil [2002] NSWCCA 255
R v Kerr [2003] NSWCCA 234
R v Nguyen, R v Pham [2010] NSWCCA 238, 205 A Crim R 106
Regina v Z [2006] NSWCCA 342; 167 A Crim R 436
Category: Principal judgment
Parties: Regina - Applicant/Respondent
Benjamin Chandler - Respondent/Applicant
Representation: Counsel:
Mr P Ingram SC/ Ms T Smith/Mr P Wallis - Appellant/Respondent Crown
Dr JB Berwick/Mr AJP Reynolds - Respondent/Appellant
Solicitors:
S Kavanagh, Solicitor for Public Prosecutions - Appellant/Respondent Crown
B Sandland, Legal Aid NSW - Respondent/Appellant

File Number(s): 2009/44437 2010/156698
Decision under appeal

Date of Decision:

2011-11-08 00:00:00

Before:

Armitage DCJ

File Number(s):

2009/044437
2010/156698

Judgment

BATHURST CJ: I agree with Hoeben JA.

BASTEN JA: The circumstances underlying this application have been fully explained by Hoeben JA, with whose conclusions I agree. I would add the following reasons.

The principle…

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.

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Details

Case: [2012] NSWCCA 135
Decision Date: 28 June 2012

CaseChat Overview and Summary

In this case, Chandler appealed against his sentence for robbery and assault with intent to rob, while the Crown appealed the leniency of the sentence. The original sentencing judge had imposed a sentence that Chandler considered too harsh, while the Crown believed it was too lenient. The High Court of Australia heard both appeals, addressing the issues of mental illness, deterrence, and parity in sentencing.

The primary legal issue was whether the sentencing judge erred in considering the applicant's mental illness and its contribution to the commission of the offences. The Court had to determine whether the sentence imposed was manifestly inadequate and whether the sentencing judge should consider the parity principle in relation to co-offenders charged with different offences. The Court also examined the relevance of specific and general deterrence in the sentencing process.

The Court found that the sentencing judge had not erred in considering the applicant's mental illness and its contribution to the offences. The Court emphasised that sentences imposed were not manifestly inadequate and that the sentencing judge was correct in not going behind the exercise of prosecutorial discretion to examine parity of treatment with regard to co-offenders. The Court concluded that the parity principle did not apply in this case, as there was no scope for its operation.

The Court dismissed both the applicant's appeal against sentence and the Crown's appeal against the leniency of the sentence. The original sentence was upheld as appropriate, taking into account the applicant's mental illness and the need for both specific and general deterrence.

Orders