Citation: Chompeay v Regina [2011] NSWCCA 96
Court: NSW Court of Criminal Appeal
Date: 21 April 2011
Judges: Basten JA, RS Hulme J, Hall J
Background
The applicant was sentenced in the District Court on 19 June 2009 for two offences under the Firearms Act 1996 (NSW): possession of an unauthorised prohibited pistol and possession of an unregistered firearm. Police had stopped a vehicle in Alexandria at approximately 3:00 am and found the applicant in the front passenger seat, having reached toward the foot well where a loaded 9mm pistol was later located.
The applicant had pleaded guilty in the Local Court, which entitled him to a mandatory 25% sentence reduction under the Criminal Case Conferencing Trial Act 2008 (NSW), s 17(1)(a). Through an oversight involving all parties and the sentencing judge, only a 20% reduction was applied. The applicant received a total effective sentence of 5 years and 4 months with a non-parole period of 4 years.
Two co-offenders, Tran and Do, had already successfully appealed their sentences. This Court, differently constituted, corrected their statutory discount error and also reduced their sentences by a further period beyond what the statutory correction required. The applicant sought the same treatment on his appeal.
Legal Issues
- Whether leave to appeal should be granted and the sentence corrected to reflect the mandatory 25% guilty plea discount under the Criminal Case Conferencing Trial Act 2008, s 17(1)(a)
- Whether, once an error warranting intervention is established, the Court of Criminal Appeal is required to re-exercise the full sentencing discretion afresh
- Whether the additional sentence reductions granted to co-offenders Tran and Do on their own appeals required a corresponding further reduction for the applicant, to preserve the parity established by the sentencing judge
Decision
All three judges agreed that the failure to apply the 25% statutory discount was an established error, and that leave to appeal and resentencing to correct that error were appropriate. The prosecution did not contest the point. The corrected sentences, recalculated on the basis of a 25% reduction, were set out in Hall J's proposed orders.
The more contested question was whether the Court was required to go further. The applicant argued that, because the co-offenders' sentences had been reduced by additional amounts on their respective appeals, failing to impose a similar further reduction on the applicant's sentence would disturb the parity the sentencing judge had deliberately established among the three. Basten JA noted that the reasons for the additional reductions in those co-offender appeals were not apparent from the judgments, and it was possible they resulted from a misunderstanding of the figures rather than any deliberate further exercise of discretion.
Hall J examined the figures carefully and concluded that any remaining disparity between the applicant's corrected sentence and those now being served by the co-offenders would not be "marked", "gross", "glaring" or "manifest", terms the law requires before a justifiable sense of grievance about disparity can ground intervention. Basten JA agreed that this was not a case calling for a fresh and independent exercise of the sentencing discretion. The Court was asked to intervene on a highly specific basis, being the maintenance of a precise proportional relationship, and absent a disparity of sufficient magnitude, that basis did not justify further reduction. General notions of "fairness" alone were insufficient.
RS Hulme J added that, but for the statutory obligation to apply the 25% discount, the original sentence was so lenient given the objective seriousness of the offending, the applicant's extensive prior record including armed robbery, and the fact he was on bail, that he would not otherwise have contemplated reducing it at all.
Orders Made
- Leave to appeal against sentence granted
- Sentences of the District Court set aside
- Applicant resentenced as follows:
- Count 1: Non-parole period of 3 years and 9 months commencing 10 August 2008, expiring 9 May 2012; balance of term of 1 year and 3 months expiring 9 August 2013
- Count 2: Fixed term of 2 years and 4 months commencing 10 August 2008, expiring 9 December 2010
Key Takeaways
- Under s 17(1)(a) of the Criminal Case Conferencing Trial Act 2008, the 25% reduction for a qualifying guilty plea is mandatory, and an oversight in applying it constitutes a correctable sentencing error on appeal.
- The Court of Criminal Appeal confirmed that the correction of a specific, discrete sentencing error does not automatically require a full, fresh exercise of the sentencing discretion across the board.
- Where co-offenders receive additional sentence reductions on their own appeals, that does not automatically entitle a separately appealing co-offender to equivalent further reductions, provided any resulting disparity falls short of the threshold of being marked, gross, glaring, or manifest.
- General arguments about "fairness" or consistency with the administration of justice were held insufficient, on their own, to compel a broader resentencing exercise in the absence of a legal basis for further intervention.
- In dismissing the application for any reduction beyond the statutory correction, the Court declined to remedy a disparity that arose from the unexplained additional reductions made in the co-offenders' earlier appeals.
Legislation and Cases Referenced
Legislation:
- Criminal Case Conferencing Trial Act 2008 (NSW), s 17(1)(a)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Firearms Act 1996 (NSW), ss 7(1), 36(1), 65(3), 4C
- Weapons Prohibition Act 1998 (NSW), s 7(1)
Cases:
- Douar v Regina [2005] NSWCCA 455
- Tran v R [2010] NSWCCA 183
- Do v R [2010] NSWCCA 182
- Greer v R [2010] NSWCCA 40
- LJ v R [2010] NSWCCA 289