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Court of Criminal Appeal 19 May 2023

Chesworth v R

[2023] NSWCCA 115

Sexual offencesDrugsFirearms & weaponsPublic order & justice offences
CRIME APPEAL AGAINST SENTENCE ERROR CONCEDED BY CROWN RESENTENCE NECESSARY MORE SEVERE SENTENCE WARRANTED APPEAL DISMISSED.

Citation: Chesworth v R [2023] NSWCCA 115
Court: NSW Court of Criminal Appeal
Date: 19 May 2023
Judges: Rothman J (with Wilson J and Yehia J agreeing)

Background

The appellant pleaded guilty in the District Court to multiple offences: bestiality, possession of an unauthorised firearm, supply of a prohibited drug, and both possessing and disseminating child abuse material. He was sentenced to an aggregate term of 3 years and 6 months imprisonment, with a non-parole period of 2 years and 1 month.

Several of the charges, including the child abuse material offences, came before the District Court as related offences under s 166 of the Criminal Procedure Act 1986 (NSW). That provision allows the District Court to deal with offences that would otherwise remain in the Local Court. When imposing an aggregate sentence in such matters, the sentencing judge is required to record an indicative sentence for each individual offence.

The sentencing judge set indicative sentences of 2 years and 6 months for each of the two child abuse material charges. Those indicative sentences exceeded the Local Court's jurisdictional limit of 2 years for a single indictable offence. The appellant challenged both that error and the overall severity of the sentence.

  • Whether the District Court erred by nominating indicative sentences under s 166 that exceeded the Local Court's jurisdictional sentencing limit
  • Whether the aggregate sentence of 3 years and 6 months was manifestly excessive

Decision

The Crown conceded error on Ground 1. Under ss 267 and 268 of the Criminal Procedure Act 1986 (NSW), the Local Court cannot impose a term of imprisonment exceeding 2 years for a single indictable offence. Where charges are referred to the District Court as s 166 related offences, the indicative sentences recorded for those charges must remain within that limit. An indicative sentence beyond that limit represents an irrelevant consideration that infects the exercise of the sentencing discretion.

Because the sentencing judge's aggregate sentence was informed by two indicative sentences that could not lawfully have been imposed, identified error was established. That finding made it unnecessary to separately address the manifest excess ground, which concerns an inference of unidentified error. The Court of Criminal Appeal was therefore required to resentence the appellant.

On resentencing, Rothman J applied the 25% discount for early guilty pleas that had been applied at first instance. His Honour assessed the bestiality offence as warranting significant accumulation given its separation from the other offending, while noting substantial overlap between the possession and dissemination of child abuse material charges. The firearm offence was found to add little to the overall criminality.

All three judges indicated they would have imposed a higher aggregate sentence than the one under appeal. Because no warning had been given to the appellant that a more severe sentence might result (a "Parker warning"), the Court declined to impose a heavier penalty. The appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under ss 267 and 268 of the Criminal Procedure Act 1986 (NSW), the Local Court's sentencing jurisdiction for a single indictable offence is capped at 2 years imprisonment. Indicative sentences recorded for s 166 related offences in the District Court must not exceed that cap.
  • Where a sentencing judge fixes an aggregate sentence informed by indicative sentences that are beyond the available maximum, an irrelevant consideration has been taken into account and identified error is established, triggering a requirement to resentence.
  • Identified error removes the need to separately consider manifest excess, which is a distinct ground concerned with inferring error that cannot otherwise be pinpointed.
  • In dismissing the appeal, the Court of Criminal Appeal noted that, absent a Parker warning, it could not impose the higher sentence that all three judges considered would otherwise have been warranted.
  • The obligation under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to record indicative sentences when imposing an aggregate term is not a formality: the indicative figures directly inform the exercise of the aggregate sentencing discretion and must therefore be lawfully available sentences.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 166, 267, 268
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(f), 49(2), 53A(2)(b), 53B
- Crimes Act 1900 (NSW), ss 79, 91H(2)
- Firearms Act 1996 (NSW), ss 7A(1), 36(1), 39(1)(a)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- House v the King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14
- R v PW [2019] NSWDC 963