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Court of Criminal Appeal 22 March 2023

Chia v R

[2023] NSWCCA 63

Sexual offencesFraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE FRAUD OFFENCES GUILTY PLEA ENTERED FOR FRAUD OFFENCES SEXUAL ASSAULT OFFENCES

Citation: Chia v R [2023] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 22 March 2023
Judges: Leeming JA, Wilson J, Dhanji J (all agreeing)

Background

The applicant had originally been tried in the District Court on an indictment containing four counts of dishonestly obtaining property by deception (fraud) and two counts of sexual intercourse without consent. He had pleaded guilty to the fraud offences in the Local Court, but those charges were placed on the same indictment because they were closely connected to the sexual assault charges. A jury found him guilty of all six offences, and an aggregate sentence was imposed.

The applicant appealed against the sexual assault convictions. The Court of Criminal Appeal quashed those convictions and the aggregate sentence, and remitted the sexual assault charges for retrial. A jury at the retrial again found him guilty of both sexual offences, making it necessary for a District Court judge (Wilson DCJ) to resentence the applicant on all six counts.

Wilson DCJ imposed a fresh aggregate sentence of 7 years imprisonment, commencing 1 January 2019, with a non-parole period of 4 years and 6 months. The applicant sought leave to appeal that sentence, arguing the sentencing judge had failed to apply the ceiling principle by not accounting for the earlier aggregate sentence imposed by King SC DCJ.

  • Whether the sentencing judge erred by failing to apply the ceiling principle when resentencing the applicant following his successful appeal.
  • Whether the sentencing judge should have taken into account the aggregate sentence and non-parole period previously imposed by King SC DCJ as a constraint on the fresh sentencing exercise.
  • What the appropriate aggregate sentence and non-parole period should be on resentence, having regard to the ceiling principle and the prohibition on worsening the applicant's position on his own appeal.

Decision

Dhanji J (with whom Leeming JA and Wilson J agreed) found that the ceiling principle was a fundamental constraint on the resentencing exercise and that it had not been drawn to the sentencing judge's attention. The ceiling principle operates to prevent a court, when resentencing after a successful appeal by the offender, from imposing a penalty that is more severe than the one originally imposed. In practical terms, the resentencing court could not fix a release date later than that set by King SC DCJ, and could not leave the applicant worse off in terms of his parole eligibility date.

The Court found that the sentencing judge's failure to apply this principle constituted error. Although the individual indicative sentences proposed by Wilson DCJ largely appeared appropriate for the gravity of the offending, the aggregate outcome was higher than the ceiling permitted.

On resentence, the Court imposed indicative sentences for each count that were slightly adjusted downward to reflect the ceiling constraint. The sexual assault offences were treated as the most serious, with count 5 (penile penetration) receiving the highest indicative sentence of 5 years. The fraud offences attracted a 25% discount for the guilty pleas entered in the Local Court. Special circumstances were found, primarily because of the applicant's conditions in custody, with rehabilitation also noted as a lesser factor.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 8 August 2022 quashed.
  • In lieu thereof, an aggregate sentence of 6 years and 6 months imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), commencing 7 March 2019 and expiring 6 September 2025.
  • Non-parole period of 4 years and 3 months, commencing 7 March 2019 and expiring 6 June 2023.
  • Balance of term of 2 years and 3 months, commencing 7 June 2023 and expiring 6 September 2025.

Key Takeaways

  • The ceiling principle is a fundamental constraint on resentencing following an offender's successful appeal: the resentencing court cannot impose a sentence that leaves the offender in a worse position than the original sentence.
  • Where a sentencing judge fails to apply the ceiling principle on resentence, that failure constitutes an error of principle justifying appellate intervention, even where the individual indicative sentences might otherwise have been open.
  • An applicant who succeeds on appeal against conviction should not, as a consequence of that appeal, be worse off with respect to either the release date or the parole eligibility date fixed by the original sentencing judge.
  • Sufficient gravity existed in both the sexual and fraud offending to support significant custodial terms, but the ceiling principle required the Court of Criminal Appeal to calibrate the fresh aggregate sentence within the outer limits of the prior sentence.
  • Under s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), an aggregate sentence may be imposed in lieu of individual sentences; the indicative sentences for each count remain relevant to demonstrate how the aggregate was constructed, but do not individually bind the resentencing court in the same way.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 192E(1)(a), 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(2A), 53A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Evidence Act 1995 (NSW), s 191

Cases
- Armstrong v R [2015] NSWCCA 273
- Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186
- Doudar v R [2021] NSWCCA 37
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) NSWLR 205; [2016] NSWCCA 255
- Scott v R [2020] NSWCCA 81
- SF v R [2022] NSWCCA 216
- Towney v R [2022] NSWCCA 289
- Valentine v R [2020] NSWCCA 116