AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 10 November 2015

Charnock v R

[2015] NSWDC 361

Theft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE PARTICULAR OFFENCES RECKLESS DAMAGE TRESPASS ON TRAIN LINES YOUTH OF APPELLANT

Citation: Charnock v R [2015] NSWDC 361
Court: District Court of New South Wales
Date: 10 November 2015
Judge(s): Cogswell SC DCJ

Background

The appellant, a 20-year-old man, committed two offences on the night of 9 August 2015 in Orange. After being refused entry to a hotel, he kicked and smashed the window of a parked car. Police witnessed the act, pursued him, and he fled onto a railway track before being arrested.

He was charged with reckless damage to property under the Crimes Act 1900 (NSW) and trespassing on railway lines under the Passenger Transport Regulation 2007 (NSW). He was refused bail and spent two nights in custody, including one night at Bathurst Correctional Centre, a medium security institution.

The appellant pleaded guilty in the Orange Local Court, where a magistrate fined him $600 for the damage offence and $200 for the railway offence. He then appealed to the District Court, initially seeking to set aside his guilty plea, before withdrawing that aspect of the appeal and instead seeking a section 10 dismissal without conviction.

  • Whether the appellant should be granted leave to withdraw his application to set aside his guilty plea
  • Whether, on the sentence appeal, the fines imposed by the magistrate should be set aside
  • Whether the court should exercise its discretion under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to deal with the offences without recording a conviction and dismiss the charges

Decision

His Honour granted the appellant leave to withdraw the conviction appeal and dismissed the application to set aside the guilty plea, with the appellant confirming his pleas of guilty.

On the sentence appeal, Cogswell SC DCJ identified several factors favouring a section 10 order. These were the appellant's age of 20, his minimal criminal history (a single fine for driving while suspended), and the fact that the two nights he spent in custody had already exceeded in severity what these offences would ordinarily attract by way of penalty.

The court found that the custodial experience had been traumatising and sobering, and treated it as constituting more than adequate specific deterrence. No further punishment was considered necessary.

Accordingly, the court set aside both sentences and substituted section 10(1)(a) orders, finding the appellant guilty of both offences without proceeding to conviction and directing that the charges be dismissed.

Orders Made

  • Leave granted to the appellant to withdraw the application for leave to set aside the guilty plea; that application dismissed
  • Both sentences imposed by the magistrate set aside under s 20(2) of the Crimes (Appeal and Review) Act 2001 (NSW)
  • In respect of both offences, the appellant found guilty without conviction under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), with orders that the relevant charges be dismissed

Key Takeaways

  • The District Court confirmed that two nights in custody, including time at a medium security correctional centre, can constitute a significant sentencing consideration capable of satisfying specific deterrence for relatively minor offences.
  • Where offences would ordinarily attract only a fine, pre-sentence custody more onerous than the anticipated penalty weighs in favour of a more lenient sentencing outcome.
  • Under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may find an offender guilty without proceeding to conviction and direct that charges be dismissed, leaving no conviction on the record.
  • Youth and minimal antecedents remain relevant mitigating factors that can support the exercise of the section 10 discretion, even where the conduct was serious enough to generate criminal charges.
  • In substituting its own orders on a sentence appeal under the Crimes (Appeal and Review) Act 2001 (NSW), the District Court is not bound to replicate the approach taken by the magistrate below.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 195(1)(a) (reckless damage to property)
- Passenger Transport Regulation 2007 (NSW), r 68J(1)(b) (trespass on railway lines)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a) (dismissal without conviction)
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2) (determination of sentence appeal)

Cases cited: No cases were cited in the judgment.