R v Chebat - [2004] NSWCCA 211

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Chebat [2004] NSWCCA 211

FILE NUMBER(S):
60195/04

HEARING DATE(S): 02/06/2004

JUDGMENT DATE: 28/06/2004

PARTIES:
Regina
Mark Chebat

JUDGMENT OF: Bell J Howie J Hislop J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0319

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

COUNSEL:
G Rowling - Crown
R Button - Applicant

SOLICITORS:
S Kavanagh - Director of Public Prosecutions (NSW)
SE O'Connor - Legal Aid Commission (NSW)

CATCHWORDS:
Criminal law
Sentencing
Henry guideline
Departure from
Special circumstances
Application of s 44 of the Crimes (Sentencing Procedure) Act 1999.

LEGISLATION CITED:
Crimes Act 1900 - s 95(1)
Crimes (Sentencing Procedure) Act 1999 - ss 3A, 5, 21A, 44

DECISION:
Leave to appeal granted
Appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60195/04
BELL J
HOWIE J
HISLOP J
28 June 2004

REGINA v MARK CHEBAT

Judgment

BELL J: I agree with Hislop J.
HOWIE J: I agree with Hislop J.
HISLOP J: On 7 August 2003 the applicant pleaded guilty to one count of aggravated robbery contrary to the Crimes Act 1900 s 95(1). The maximum penalty for such offence is twenty years imprisonment. On 28 October 2003 Ellis DCJ sentenced the applicant to two years and six months imprisonment for that offence commencing on 28 October 2003 with a non-parole period of one year and three months.
His Honour recommended that the sentence be served in juvenile detention. This recommendation could not be carried out as the applicant was over the age of eighteen at the time of the offence. The recommendation was withdrawn on 30 October 2003. The applicant has served the sentence to date in adult gaols.
The applicant seeks leave to appeal against sentence. The written grounds of appeal assert:
“1. The sentencing Judge applied a wrong principle, in that his Honour interpreted the applicable guideline judgment as meaning that any sentence other than full time imprisonment would have been erroneous.
2. The sentence is manifestly excessive.”
On the hearing of the appeal an additional ground was advanced as a “fall back” position in case the filed grounds did not find favour with the Court. In essence the ground was that his Honour’s approach to imposing the sentence in accordance with the Crimes (Sentencing Procedure) Act 1999 (“the Act”) s 44 as it had been amended in 2002 had led to an increase in the term of the sentence by the finding of special circumstances rather than a reduction of the non-parole period.

The facts, as found by his Honour, were as follows:
“… on 29 May 2003 at Parramatta, in the company of two other men, the offender and two other males approached the area in which the victim was speaking to two females. Shortly after the offender walked up to and approached the victim who was seated at a bench waiting for a lift, the offender stood with his right leg between the victim’s legs with his knees nearly…

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 R v Chebat

Details

AGLC: R v Chebat [2004] NSWCCA 211
Case: [2004] NSWCCA 211
Decision Date: 28 June 2004

CaseChat Overview and Summary

In the case of R v Chebat, the appellant, Chebat, was convicted of multiple criminal charges and subsequently sentenced by the sentencing judge. Chebat sought to appeal the sentence imposed, arguing that the non-parole period was excessively harsh and did not adequately consider his prospects for rehabilitation. The appeal raised issues concerning the application of the Henry guideline and whether there were special circumstances warranting a departure from the guideline to reduce the non-parole period. The appeal was heard and determined by the court of appeal.

The primary legal issue before the court was whether the sentencing judge appropriately exercised his discretion in imposing the sentence, specifically whether he correctly applied the principles set out in the Henry guideline and whether he adequately considered the presence of any special circumstances that would justify a departure from the guideline. The court was required to examine whether the sentencing judge's decision to set the non-parole period was lawful and whether it aligned with the principles of sentencing in relation to the appellant's rehabilitation prospects.

The court of appeal found that the sentencing judge did not adequately consider the Henry guideline or the possibility of special circumstances that could warrant a departure from the guideline. The court held that the non-parole period could not be considered appropriate unless it was reduced to provide the appellant with a longer period on parole, which would benefit his rehabilitation. Consequently, the court concluded that the sentencing judge did not appropriately exercise his discretion. The court granted leave to appeal and dismissed the appeal, noting that the sentence imposed demonstrated the sentencing judge's failure to appropriately consider the guideline and special circumstances.

In summary, the court granted leave to appeal and dismissed the appeal against sentence. The court's decision underscores the importance of correctly applying sentencing guidelines and considering special circumstances in the sentencing process, particularly in relation to the non-parole period and the potential benefits to the offender's rehabilitation.

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

BELL J

In any event the sentence imposed clearly proves, if proof is required, that his Honour did not approach his sentencing task in that way. The non-parole period fixed could not have been considered as appropriate unless his Honour had reduced it by finding of special circumstances to provide the applicant with a longer period on parole for the benefit of his rehabilitation.Conclusion I propose the following orders:(1) Leave to appeal granted.(2) Appeal dismissed.

Ratio Decidendi

Legal Principle Established

Established by: BELL J

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