Regina v Chebat [2004] NSWCCA 211

New South Wales Court of Criminal Appeal

CITATION : Regina v Chebat [2004] NSWCCA 211 HEARING DATE(S) : 02/06/2004 JUDGMENT DATE : 28 June 2004

JUDGMENT OF : Bell J at 1; Howie J at 2; Hislop J at 3 DECISION : Leave to appeal granted; Appeal dismissed.

CATCHWORDS : Criminal law - Sentencing - Henry guideline - Departure from - Special circumstances - Application of s 44 of the Crimes (Sentencing Procedure) Act 1999. LEGISLATION CITED : Crimes Act 1900 - s 95(1) Crimes (Sentencing Procedure) Act 1999 - ss 3A, 5, 21A, 44 R v Hampton (1998) 44 NSWLR 729 R v Henry (1999) 46 NSWLR 346 CASES CITED : R v Moffit (1990) 20 NSWLR 114 R v Tate (1979) 46 FLR 386 R v Way [2004] NSWCCA 131 Whittaker v The King (1928) 41 CLR 230 PARTIES : Regina Mark Chebat FILE NUMBER(S) : CCA 60195/04 COUNSEL : G Rowling - Crown R Button - Applicant SOLICITORS : S Kavanagh - Director of Public Prosecutions (NSW) SE O'Connor - Legal Aid Commission (NSW)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/0319 FILE NUMBER(S) : LOWER COURT Ellis DCJ JUDICIAL OFFICER :

- 1 - IN THE COURT OF CRIMINAL APPEAL 60195/04

BELL J HOWIE J HISLOP J

28 June 2004 REGINA v MARK CHEBAT Judgment 1 BELL J: I agree with Hislop J. 2 HOWIE J: I agree with Hislop J. 3 HISLOP J: On 7 August 2003 the applicant pleaded guilty to one count of aggravated robbery contrary to the Crimes Act 1900 s 95(1). The maximum penalty for such offence is twenty years imprisonment. On 28 October 2003 Ellis DCJ sentenced the applicant to two years and six months imprisonment for that offence commencing on 28 October 2003 with a non-parole period of one year and three months. 4 His Honour recommended that the sentence be served in juvenile detention. This recommendation could not be carried out as the applicant was over the age of eighteen at the time of the offence. The recommendation was withdrawn on 30 October 2003. The applicant has served the sentence to date in adult gaols. 5 The applicant seeks leave to appeal against sentence. The written grounds of appeal assert: "1. The sentencing Judge applied a wrong principle, in that his Honour interpreted the applicable guideline judgment as meaning that any sentence other than full time imprisonment would have been erroneous.