Regina v Challis - [2003] NSWCCA 48

CITATION: Regina v Challis [2003] NSWCCA 48

HEARING DATE(S): 24/02/03

JUDGMENT DATE:
26 February 2003

JUDGMENT OF: O'Keefe J at 1; Bell J at 23

DECISION: Leave to appeal refused.

CATCHWORDS: Criminal law - Appeal - Severity - Break and enter offices - Possession of house breaking implements - Multiple offences - Offences committed whilst on parole and on suspended sentences - Aggravating factors - Non acceptance of previous opportunities for rehabilitation - Special circumstances a question of fact - Onus of proof - Statistics relate to highest sentence imposed, not to accumulated sentences - Basis for comparison of sentences

LEGISLATION CITED: Crimes Act 1900; ss 112(1),
Crimes (Sentencing Procedure) Act 1999; s 32

CASES CITED: Childs v Kelly (1948) 65 WN (NSW) 141
Freeman v Stankovic (1960) 77 WN 631
O'Hare v DPP (NSWSC 430, unreported, 22 May 2000)
Re Attorney General's Application [No. 1]: Regina v Ponfield (1999) 48 NSWLR 327
Regina v Harris (NSWSC, unreported, 18 April 2000
Veen (No. 2) v The Queen (1988) 164 CLR 465
Williams v Hansen (1957) SR (NSW) 428

PARTIES :
Regina
Michael David Challis

FILE NUMBER(S): CCA 60138/02

COUNSEL: Mr P Winch - Applicant
Mr R A Hulme SC - Crown

SOLICITORS: Mr D J Humphreys - Applicant
Ms S E O'Connor - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/0355

LOWER COURT
JUDICIAL OFFICER : Nield DCJ

- 10 -

60138/02

O’Keefe J
Bell J

Regina v Challis

Judgment

O’KEEFE J:

1 On 11 March 2002, Michael David Challis (the Applicant) admitted in the District Court to having committed 13 offences contrary to s 112(1) of the Crimes Act 1900; two of such offences having been committed on 13 October 1999; eleven on 20 May 2001. Five of the offences were charged in two indictments, and eight were included on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. The Applicant was born on 18 May 1976, so he was aged 23 at the time of the commission of the offences of 13 October 1999; 25 at the time of the offences of 20 May 2001; approaching 26 at the time of sentence. The Applicant was sentenced to various terms of imprisonment which, with accumulations, in effect involved his imprisonment for a total term of 6 years, with a non-parole period of 4 ½ years.

2 On 14 May 1999 the Applicant was sentenced for breaking, entering and stealing to a term of imprisonment of 9 months, together with an additional term of 9 months, which additional term did not expire until January 2001. Thus, the additional term which he was liable to serve was in force at the date of the commission of the offences of 13 October 1999. In addition, the Applicant was sentenced in the District Court in connection with the theft of a motor vehicle in which he was a passenger, and an offence of being an accessory after the fact of breaking, entering…

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 Regina v Challis

Details

AGLC: Regina v Challis [2003] NSWCCA 48
Case: [2003] NSWCCA 48
Decision Date: 26 February 2003

CaseChat Overview and Summary

In Regina v Challis, the appellant was convicted of various offences including breaking and entering, possession of house breaking implements, and theft. The appellant had a history of similar offences and was on parole at the time of the commission of the current offences. The appellant had also been on suspended sentences for previous offences at the time of the commission of these crimes. The appellant appealed against the severity of the sentences imposed by the lower court. The primary issues before the court were whether the sentences imposed were excessive and whether the court had properly considered the relevant aggravating and mitigating factors.

The court found that the appellant's history of offending and failure to take advantage of previous opportunities for rehabilitation were valid aggravating factors. The court also found that the appellant's special circumstances, such as his mental health issues, were properly considered by the lower court. The court emphasised that the onus of proof was on the appellant to establish that the sentences were excessive. The court found that the statistics relied upon by the appellant related to the highest sentence imposed, rather than the accumulated sentences, and were therefore not relevant to the issue of the severity of the sentences imposed. The court concluded that the lower court had properly considered the relevant factors and that the sentences imposed were not excessive.

The court rejected the appellant's argument that the sentences imposed were disproportionate to those imposed for similar offences by other offenders. The court found that the comparison of sentences was not a useful exercise in determining the severity of a sentence and that each case must be considered on its own facts. The court also rejected the appellant's argument that the lower court had failed to consider the appellant's prospects of rehabilitation. The court found that the lower court had properly considered the appellant's prospects of rehabilitation and had taken them into account in imposing the sentences.

The appeal was dismissed. The sentences imposed by the lower court were affirmed.

Orders