Citation: CHANTHABOURY v R [2007] NSWCCA 290
Court: NSW Court of Criminal Appeal
Date: 16 October 2007
Judge(s): McClellan CJ at CL; Barr J; Bergin J
Background
The appellant pleaded guilty in the Local Court to two counts of being an accessory after the fact to armed robbery. Both offences arose from events on 31 October 2005 in Fairfield, where the appellant drove a co-offender (Lai) to two separate locations. At the first, a newsagency, Lai attempted an armed robbery but fled empty-handed after the victim defended himself. At the second, a supermarket, Lai completed an armed robbery and obtained approximately $600.
The Court Attendance Notice (CAN) for the newsagency offence described it as accessory after the fact to a completed robbery. In fact, that offence should have been charged as accessory after the fact to an attempted robbery, a distinction that carried a lower maximum penalty. The agreed statement of facts made clear the nature of the offence, but the CAN itself omitted the word "attempted."
The appellant was committed to the District Court for sentencing, where Goldring DCJ imposed a total non-parole period of two and a half years with a balance of term of 18 months. The appellant then challenged both his conviction on the newsagency count and the sentences imposed on both counts.
Legal Issues
- Whether the omission of the word "attempted" from the CAN for the newsagency charge was a defect that invalidated the conviction on that count
- Whether the sentencing judge erred by applying the maximum penalty for the completed offence when sentencing on what was, in substance, a charge of accessory after the fact to an attempted robbery
- Whether the overall sentence failed to reflect the sentencing distinction between the appellant's role and that of the co-offender, Lai
Decision
Conviction appeal dismissed. The Court found that, although the CAN was defective in omitting the word "attempted," the error did not result in any miscarriage of justice. The agreed statement of facts placed before the sentencing judge made the true nature of the newsagency offence entirely clear: everyone involved understood the appellant was being sentenced for conduct related to an attempted, not a completed, robbery. No party was misled as to what conduct was in issue, and the conviction was upheld.
Sentence appeal on the newsagency charge upheld. The Court accepted that the sentencing judge applied the maximum penalty applicable to the completed offence rather than the lower maximum that applied to the attempt. This was a material error. The applicable maximum for accessory after the fact to an attempted armed robbery is lower than for the completed crime, and applying the wrong maximum distorted the sentencing exercise. The sentence on that count was quashed and replaced.
Sentence appeal on the supermarket charge. Because the revised sentence on the newsagency count changed the commencement date of the supermarket count (the sentences were structured to run consecutively), the Court also quashed and re-imposed the sentence on the supermarket charge to correct the relevant dates, while otherwise leaving its substance unchanged.
Co-offender disparity. The Court did not find that the overall sentencing structure unjustifiably failed to reflect the differences between the appellant's role and Lai's. The sentence appeal was otherwise dismissed.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted; sentence appeal upheld on the newsagency (attempt) charge; sentence on that charge quashed
- Sentence on the supermarket (completed) charge quashed consequentially to correct dates
- On the newsagency charge: fixed term of six months commencing 31 October 2005 and expiring 29 April 2006
- On the supermarket charge: non-parole period of 18 months commencing 30 April 2006 and expiring 30 October 2007, with a balance of term of 18 months expiring 29 April 2009
- Appeal against sentence otherwise dismissed
Key Takeaways
- A defect in a Court Attendance Notice, including the omission of a critical word such as "attempted," will not automatically invalidate a conviction where no party was misled and the true nature of the charge was apparent from the agreed facts before the sentencing court.
- Applying the wrong maximum penalty when sentencing constitutes a material error that can vitiate a sentence, even where the overall approach to sentencing was otherwise sound.
- Where consecutive sentences are restructured on appeal, a correction to an earlier term necessarily requires the later term to be quashed and re-imposed with corrected dates, even if its substance is unchanged.
- The Court of Criminal Appeal observed, through Barr J, that the drafting of the CANs in this matter was poorly constructed and at times almost unintelligible, noting that Crown Prosecutors and sentencing courts should scrutinise CANs carefully, particularly where they have been prepared by persons without legal qualifications.
- Under the proviso to s 6 of the Criminal Appeal Act 1912, a conviction may be upheld notwithstanding an irregularity in the charging document where no substantial miscarriage of justice has occurred.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(a), s 5(1)(c), s 6
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Driver Licensing Act 1998 (NSW), s 25(2)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 42(2)
Cases:
- Kahatapitiye v The Queen (2004) 146 A Crim R 542
- Reg v Molyneux (1980) 72 Cr App R 111
- R v Ayres [1984] 1 AC 447
- R v Janceski (2005) 64 NSWLR 10
- Pearce v R (1998) 194 CLR 610
- Swansson v R [2007] NSWCCA 67