AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 9 September 2015

R v Chidiac

[2015] NSWCCA 241

DrugsFirearms & weaponsPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST AGGREGATE SENTENCE

Citation: R v Chidiac [2015] NSWCCA 241
Court: Court of Criminal Appeal, NSW
Date: 9 September 2015
Judges: Bathurst CJ, Price J, Beech-Jones J

Background

The applicant pleaded guilty to four counts on an indictment, asked for a further matter to be taken into account on a Form 1, and also pleaded guilty to two matters on a section 166 certificate. The offences included knowingly taking part in the manufacture of methylamphetamine, knowingly taking part in the supply of methylamphetamine, possession of an unauthorised firearm, and doing an act with intent to dissuade a potential witness from attending trial.

The witness-intimidation offence (count 4) arose from a series of abusive text messages sent by the applicant to his former wife after she confirmed she had been subpoenaed. This conduct occurred approximately 18 months after the drug and firearm offences, and while the applicant was on bail.

The District Court judge at Parramatta imposed an aggregate sentence of 7 years 2 months imprisonment with a non-parole period of 5 years 5 months, after applying a 10 per cent discount for guilty pleas. The applicant sought leave to appeal on two remaining grounds: that the judge erred in treating count 4 as fully accumulating on the other sentences, and that the aggregate sentence was manifestly excessive.

  • Whether the judge erred in indicating that the sentence for count 4 (witness intimidation) would have been totally, rather than partially, accumulated on the sentences for the other counts.
  • Whether the aggregate sentence of 7 years 2 months with a non-parole period of 5 years 5 months was manifestly excessive.

Decision

The Court of Criminal Appeal dismissed both grounds. On the accumulation argument, Price J observed that indicative sentences under section 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 are not actually imposed sentences, but merely indications of what the judge would have done had each offence been sentenced separately. Any complaint about accumulation of indicative sentences therefore cannot, of itself, establish error in the aggregate sentence.

In any event, the Court held it was open to the judge to indicate full accumulation for count 4. The witness-intimidation offending was criminally distinct from the drug and firearm offences: it involved a specific individual victim, occurred 18 months later, and was committed while the applicant was on bail. The Court cited Cahyadi v R for the proposition that criminality of that nature need not be subsumed into the criminality of the other offences.

On manifest excess, Price J found that the aggregate sentence properly reflected the totality of the applicant's offending and fell within the proper exercise of the sentencing judge's discretion. The Court also affirmed that general deterrence is paramount for witness-intimidation offences and that such conduct warrants denunciation, following Malicki v R; R v Malicki [2015] NSWCCA 162.

The Court also noted that the judge appropriately treated the applicant's bail status at the time of the witness-intimidation offence as an aggravating factor under section 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Indicative sentences recorded under section 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 are not imposed sentences. Complaints about how individual indicative sentences were accumulated do not, by themselves, establish error in the aggregate sentence ultimately imposed.
  • Where offending is criminally distinct from other counts, involves a specific victim, and is separated in time, full accumulation of an indicative sentence on earlier sentences may be appropriate, consistent with Cahyadi v R (2007) 168 A Crim R 41.
  • The Court of Criminal Appeal confirmed that general deterrence is a paramount sentencing consideration for offences of attempting to dissuade a witness from attending trial, and that such conduct attracts denunciation.
  • Committing an offence while on bail for other serious offences remains an aggravating factor under section 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, and the Court found it was properly applied here.
  • A failure to record the non-parole period for a standard non-parole period offence under section 54B(4) does not invalidate the aggregate sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 323(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(2)(j), 44(2C), 53A, 53A(2)(b), 54B, 54B(4)
- Drug Misuse and Trafficking Act 1985 (NSW) ss 24(1), 25(1), 29
- Firearms Act 1996 (NSW) s 7(1)

Cases:
- Beale v R [2015] NSWCCA 120
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Cullen v R [2014] NSWCCA 162
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Knight v R [2015] NSWCCA 222
- Malicki v R; R v Malicki [2015] NSWCCA 162
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- R v Dusan Krstic [2005] NSWCCA 391