Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: CHOMPEAY v REGINA [2011] NSWCCA 96 Hearing dates: Tuesday 19 April 2011 Decision date: 21 April 2011 Before: Basten JA at 1 R S Hulme J at 9 Hall J at 11 Decision: (1) That the time for the application for leave to appeal against sentence be granted. (2) That the sentences of the District Court be set aside. (3) That the applicant be re-sentenced as follows:- (a) Count 1: In relation to Count 1, the applicant is sentenced to a non-parole period of 3 years and 9 months to commence on 10 August 2008 and to expire on 9 May 2012 and a balance of term of 1 year and 3 months to expire on 9 August 2013. (b) Count 2: In relation to Count 2, the applicant is sentenced to a fixed term of 2 years and 4 months to commence on 10 August 2008 and to expire on 9 December 2010. Catchwords: APPEAL - criminal - sentencing - failure to apply statutory reduction for plea of guilty - Criminal Case Conference Trial Act 2008 (NSW), s 17(1)(a). APPEAL - criminal - sentencing - whether appeal court required to exercise whole sentencing discretion afresh once intervention required - whether exercise limited to specific point raised by applicant - Criminal Appeal Act 1912 (NSW), s 6(3). APPEAL - criminal - sentencing - variation of sentences of co-offenders on appeal - whether similar variation of applicant's sentence required. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Case Conferencing Trial Act 2008 Firearms Act 1996 Weapons Prohibition Act 1998 Cases Cited: Do v R [2010] NSWCCA 182 Douar v Regina [2005] NSWCCA 455 Greer v R [2010] NSWCCA 40 LJ v R [2010] NSWCCA 289 Tran v R [2010] NSWCCA 183 Category: Principal judgment Parties: CHOMPEAY, Kim v REGINA Representation: Counsel: C: V Lydiard A: B Rigg Solicitors: C: S Kavanagh A: C Hunter File Number(s): 2009/3282 Decision under appeal Date of Decision: 2009-06-19 00:00:00 Before: King DCJ File Number(s): 2009/3282 Judgment 1BASTEN JA : On 19 June 2009, the applicant was sentenced for two offences under the Firearms Act 1996 (NSW) in circumstances explained by Hall J. Having pleaded guilty, it is common ground that the applicant was entitled to receive a sentence in respect of each offence which was 25% less than the term the sentencing court would otherwise have imposed, pursuant to the Criminal Case Conferencing Trial Act 2008 (NSW), s 17(1)(a). Through an oversight on the part of all involved, this provision was not applied, each sentence being reduced by 20%, rather than 25%. 2The prosecution accepts that the applicant should have the benefit of the statutory provision, which entails a grant of leave to appeal and a resentencing of the applicant accordingly. This should be done, in accordance with the orders proposed by Hall J. 3The only remaining question is whether, in the absence of any other error which would justify interference with the sentence, the Court should, in resentencing, reduce each sentence by a further amount. The basis for the applicant's contention that it should, arises from the fact that this Court (differently constituted) reduced the sentences of the applicant's co-offenders, Andrew Tran and Van Dung Do by a further 1.5 months (in the case of Mr Tran) and a further 4.5 months (in the case of Mr Do) over and above the reductions required to give effect to the statutory discount on the pleas of guilty. 4It is unfortunate that all three cases did not come before the Court at one time. Indeed, it is unclear why the sentences were not all corrected by the trial judge, pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It is also unfortunate that the reasons of this Court in respect of Messrs Tran and Do do not reveal the basis on which the further reduction was made. (It is possible that there was a misunderstanding of the figures provided to the Court and that no additional reduction was intended in either case.) 5Counsel for the applicant relied upon the proposition that, the trial judge having established the appropriate inter-relationship of the three sentences, that relationship would be lost if this Court did not allow for the further reduction permitted on the appeals of the co-offenders. 6I would not dismiss as "insignificant" the additional reduction in the case of the co-offender Do. The notional starting point was reduced by a period of six months (from 7.5 years to 7 years), so that the additional reduction on the reduced sentence was approximately 4.5 months. 7There was some uncertainty in the course of submissions before this Court as to the exercise proposed. The applicant appeared to submit that, once error was demonstrated, this Court must embark upon its own independent exercise of discretion. There is support for that approach in the reasoning of this Court in Douar v Regina [2005] NSWCCA 455, in the judgment of Johnson J (McClellan CL at CL and Adams J agreeing) particularly at [90] ff. One point which was in contention in Douar is not in contention in the present case: the parties agree that the Court can look at post-sentencing events, and in particular the subsequent judgments of this Court in the case of the co-offenders. However, when that course is taken, as explained by Hall J, the sentence which would result from a mechanical application of the statutory discount, whilst it may not bear the exact proportion to the sentences now being served by the co-offenders, in terms of the proportions fixed by the sentencing judge, there is, nevertheless, no disparity of a kind and degree which would itself warrant intervention by this Court. Acknowledging that conclusion, counsel for the applicant was reduced to the submission that there nevertheless should be some further reduction on account of "fairness". 8This is not a case in which this Court is called upon to re-exercise the sentencing discretion afresh. Apart from the statutory reduction, the Court is asked to interfere on one highly specific basis, namely to give effect to a further reduction, presumably of the order of three months, to maintain a precise proportion of parity established by the trial judge. The Court not being invited to embark on any broader exercise, should not undertake that course. The view which it may properly form, for the purposes of s 6(3) of the Criminal Appeal Act 1912 (NSW) is that a less severe sentence is warranted in law, but only in so far as it is appropriate to give effect to the statutory discount. The Court need not, and should not in the circumstances of the case, intervene on the additional basis proposed by the applicant. Accordingly, the orders should be made, as proposed by Hall J. 9R S HULME J : I agree with the orders proposed by Hall J and, subject to the following remarks, with his Honour's Reasons. 10Having regard to the circumstances of the Applicant's offence - armed and in the company of a group of similarly armed colleagues - and his Honour's description of the seriousness of the offences as falling into "the highest range", the sentence under appeal can only be described as very lenient, a fortiori given the Applicant's extensive record including armed robbery and the fact he was on bail. But for the fact that the sentencing judge was required by s 17(1)(a) of the Criminal Case Conferencing Trial Act to allow a discount of 25% (rather than the 20% he allowed), I would not contemplate reducing the sentence imposed. 11HALL J : The applicant seeks leave to appeal against sentences imposed on him by the District Court on 19 June 2009 following his pleas of guilty in the Local Court on 3 March 2009. The charges 12The applicant was sentenced in respect of two charges as follows:- (1) The first charge under s.7(1) of the Firearms Act 1996 alleged possession of an unauthorised prohibited pistol. The pistol was described as a 9 mm Parabellum calibre pistol. The maximum penalty specified for such an offence is 14 years imprisonment. By Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999, a standard non-parole period of 3 years is prescribed. (2) The second charge under s.36(1) of the Firearms Act alleged possession of an unregistered firearm. The firearm was the pistol referred to in the first charge. An offence under this section carries a maximum penalty of imprisonment of 10 years. 13The applicant asked that the offence of possess ammunition (the firearm in question which was loaded with 10 cartridges) without a licence contrary to s.65(3) of the Firearms Act and an offence of possession of a prohibited weapon (detachable magazine cartridge) contrary to s.7(1) of the Weapons Prohibition Act 1998 be taken into account on a Form 1 pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act . The sentences 14The applicant was sentenced in relation to the first charge and, taking into account the matters on the Form 1, to a non-parole period of 4 years imprisonment to commence on 10 August 2008 and to expire on 9 August 2012 with a balance of term of 1 year and 4 months to expire on 9 December 2013. 15On the second charge, the applicant was sentenced to a fixed term of 2 years and 6 months imprisonment to commence on 10 August 2008 and to expire on 9 February 2011. 16The total effective sentence was a term of imprisonment for 5 years and 4 months with a non-parole period of 4 years. Agreed facts on sentence 17At the sentence hearing, an Agreed Facts on Sentence was tendered. It is unnecessary to record the full facts. It is sufficient to state that at approximately 3.00 am on 10 June 2008, police were travelling along Fountain Street, Alexandria and, as they neared the intersection with Mitchell Road, they noticed a blue coloured Subaru. When they reached the intersection, the light changed to red and the officer stopped at the intersection and noticed the applicant and a number of persons in the Subaru looking in the direction of the police car. The applicant was seated in the front passenger seat. 18All four persons in the vehicle appeared to be extremely nervous. The applicant was seen reaching towards the foot well area of the vehicle. He was told to put his hands up and police saw that he held a white cotton glove in his right hand and noted a red coloured balaclava in the centre console between the applicant and the offender, Do. 19The Parrabellum pistol was located in the foot well in the front passenger seat where the applicant had been seated along with a pair of white gloves. The pistol contained a magazine with 10 live rounds of ammunition. Investigations revealed it to be a self-loading pistol and it was a prohibited pistol within the meaning of s.4C of the Firearms Act . It had a detachable magazine which is also a prohibited weapon. The cartridges were located in the magazine. Remarks on sentence 20On 19 June 2009, the District Court sentenced the applicant, and co-offenders Do and Tran. 21The sentencing judge set out the facts based on the agreed statement of facts and specific individual findings concerning the applicant and later subjective matters. 22The sentencing judge noted that the offender was 28 years of age at the time of the offence, having been born in Cambodia. He and his family came to Australia in 1987. His parents separated shortly after. 23In the submission for the applicant it is observed that he was, in fact, 27 years of age at the time of the offences and 28 years when sentenced. 24The sentencing judge noted a history of disrupted schooling and a lifestyle involving the use of prohibited drugs and the fact that he had spent time previously in custody. 25His Honour noted that the applicant had commenced drug use at the age of 16 with smoking heroin. 26Professor Woods, who interviewed the applicant, diagnosed him as suffering, inter alia, from adjustment disorder with mixed anxiety and depressed mood. 27The sentencing judge noted that, at the time of the offences, the applicant was on bail in respect of a goods in custody offence with which he was charged on 9 December 2007 as well as a number of other matters. For those matters he received a sentence of a fixed term of 2 months which commenced from the date of his arrest, namely, 10 June 2008 and expired on 9 August 2008. Since that time, he had been in custody only in relation to the subject offences. 28In relation to remorse and contrition, the sentencing judge noted that the Crown case was a very strong one in respect of each offender and made a finding that, in respect of each, the plea of guilty was an acknowledgement of the strength of the Crown case rather than indicating any remorse or contrition. 29The sentencing judge rejected the explanation offered by the applicant and Do through Professor Woods and in their oral evidence on sentence. His Honour stated that their evidence and explanation of their motivation and purpose was totally rejected. 30His Honour determined that, in respect of the objective seriousness of the offences, there was no acceptable explanation for them which in any way mitigated their objective seriousness. The seriousness of the offences was held to have fallen into "the highest range" . Grounds of appeal 31In the Notice of Application for Leave to Appeal, there was only one ground relied upon, which was in the following terms:- "The sentencing judge erred by not allowing a discount of 25% for the plea of guilty before committal in accordance with s.17(1)(a) of the Criminal Case Conferencing Trial Act." 32Ms B Rigg of counsel, who appeared on behalf of the applicant, noted that the applicant had a statutory entitlement to a 25% discount for the utilitarian value of the plea but that the provisions of the Criminal Case Conferencing Trial Act 2008 were not brought to the sentencing judge's attention. A discount of 20% only was allowed for the applicant and his co-offenders. 33In Do v R [2010] NSWCCA 182 and Tran v R [2010] NSWCCA 183, this Court accepted the Crown's concession in those cases that the failure by the sentencing judge to give a 25% discount in accordance with the last-mentioned Act, was a material error which required in each case for the sentence to be quashed and the applicant re-sentenced. 34In relation to the evidence on subjective matters, the sentencing judge indicated that the applicant's credibility had been undermined and that circumspection was required in considering the diagnosis of Mr Woods. Ultimately, the Court was unable to find that the opinion as to the applicant's mental state was soundly based or had any causal or ameliorating affect in respect of the commission of the offence. Consideration 35Section 17(1)(a) of the Criminal Case Conferencing Trial Act prescribes discounts for guilty pleas to which the Act applies. It provides:- "17(1) If an offender pleaded guilty to an offence at any time before being committed for sentence, the sentencing court must allow a discount for a guilty plea calculated as follows:- (a) If the court imposes a sentence of imprisonment for a term - a term that is 25% less than the term the court would otherwise have imposed." 36Accordingly, material error on sentencing was relied upon. It was submitted that the Court should re-sentence the applicant as it did in the case of the offenders Do and Tran where similar errors had occurred. 37On the issue of the extension of time, the circumstances in which delay occurred has been explained. Crown submissions 38The Crown conceded that material error occurred in the sentencing judge allowing a discount of only 20% for the pleas of guilty. 39In the Crown's written submissions dated 12 April 2011, it is observed that if the 25% discount is applied to the notional starting points imposed by the sentencing judge, then the sentences would be in the following terms:- · In relation to Count 1, a total sentence of 5 years with a non-parole period of 3 years and 9 months and a balance of term of 1 year and 3 months. · In relation to Count 2, a fixed term sentence of 2 years and 4 months imprisonment. The question of re-sentencing 40In light of the fact that a material error occurred in the sentencing of the applicant, it was submitted by Ms Rigg on his behalf that the Court should proceed to re-sentence him as this Court did in relation to the co-offenders, Do and Tran. Reference was made to LJ v R [2010] NSWCCA 289 where it is said a similar error occurred. 41The submission was that the sentence imposed by the District Court should be quashed and the applicant re-sentenced afresh. This, it was observed, was the course adopted by this Court in Greer v R [2010] NSWCCA 40. In that case, the sentencing error involved a period of eight weeks pre-sentence custody having been overlooked. It was agreed that, whatever the outcome of the appeal, the applicant's sentence should be adjusted to take that period into account. 42The Court adopted the approach whereby the sentence would be quashed and the applicant re-sentenced, since the error was a material one requiring such a course. So much was conceded by the Crown. Reference was made to the approach taken by this Court in Do (supra) and Tran (supra). In Greer (supra), Adams J (with whom McClellan CJ at CL and Buddin J agreed) was of the view that the Court should follow the approach taken in Do (supra) and Tran (supra) and quash the sentence and re-sentence the applicant. In those circumstances, it was not necessary to consider the other grounds of appeal. 43During the course of the hearing of the application, Ms Rigg stated that this Court would re-sentence upon the principle of parity whereby a lower sentence could be imposed, provided it is one within range for the offence in question. It was submitted that this Court would re-sentence to impose a lower sentence having regard to parity, even if it is a sentence the Court would not otherwise have imposed. 44The sentences imposed by this Court in Do (supra) and Tran (supra) were only marginally lesser sentences than those that had been imposed by the District Court. 45Set out below is a schedule which indicates the effect of the re-sentencing by this Court in the applications for leave to appeal by both Do and Tran. I note that, in the case of Do, the calculations in the schedule are based upon a document that was apparently before the Court when hearing the application for leave to appeal. The document was entitled "Agreed matters re 25% discount" . So far as is relevant it contained the following:- Notional starting point: Head sentence 90 months (7 years 6 months) Less 25% discount on: Head sentence = 22 months 2 weeks; 67.5 months; 5 years 7 months (rounded down) Non-parole period = 16 months 3 weeks; 50.25 months; 4 years 2 months (rounded down)" Schedule Do v R [2010] NSWCCA 182 Count 1, offence contrary to s.7(1) Firearms Act 1996 Sentence imposed by King DCJ Notional starting point for sentence imposed by King DCJ 25% discount on head sentence (not in fact applied by King DCJ) Starting point applied by CCA CCA sentence reduced by 25% Additional reduction on re-sentencing 6 years: 7 years 6 months 5 years 7.5 months 7 years 5 years 3 months: 4.5 months 4 years 6 months + 1 year 6 months 3 years 11 months + 1 year 4 months Count 2, offence contrary to s.36(1) Firearms Act 1996 Sentence imposed by King DCJ Notional starting point for sentence imposed by King DCJ 25% discount on head sentence (not in fact applied by King DCJ) Notional starting point applied by CCA CCA sentence reduced by 25% Additional reduction on re-sentencing 2 years 8 months 3 years 4 months 2 years 6 months 2 years 10 2/3 months 2 years 2 months 4 months fixed and concurrent fixed and concurrent Tran v R [2010] NSWCCA 183 Count 2, offence contrary to s.7(1) Firearms Act 1996 Sentence imposed by King DCJ Notional starting point for sentence imposed by King DCJ 25% discount on head sentence (not in fact applied by King DCJ) Starting point applied by CCA CCA sentence reduced by 25% Additional reduction on re-sentencing 4 years 8 months 5 years 10 months 4 years 4.5 months 5 years 9 months 4 years 3 months: 1.5 months 3 years 6 months + 1 year 2 months 3 years 2 months + year 1 month Count 3, offence contrary to s.36(1) Firearms Act 1996 Sentence imposed by King DCJ Notional starting point for sentence imposed by King DCJ 25% discount on head sentence (not in fact applied by King DCJ) Notional starting point applied by CCA CCA sentence reduced by 25% Additional reduction on re-sentencing 2 years 4 months 2 years 11 months 2 years 2.5 months 2 years 10 2/3 months 2 years 2 months 0.5 of a month fixed and concurrent fixed and concurrent 46The above schedule indicates the extent of the effective additional reduction on sentence in the cases of Do and Tran over and above the discount arising by application of the 25% for the pleas: in the case of Do the additional reduction was approximately 5 months and in the case of Tran approximately 1 month. 47Where two of three co-offenders have been granted leave to appeal against sentences imposed against each of them and a discrete sentencing error has been determined with respect thereto, it is clear that this Court may set aside the sentences and re-sentence the applicant but will not necessarily be required to re-sentence afresh. 48The fact that the applicant's co-offenders, Do and Tran, were re-sentenced by this Court, does not, in my opinion, of itself, require this Court, in granting leave to appeal in respect of the discrete error concerning the 25% discount for the plea, to re-sentence the applicant afresh. Whether this Court ought re-sentence will depend upon the circumstances of the individual case. 49Those circumstances will include the level of objective seriousness of the offence for which the applicant was sentenced, the absence of any other sentencing error and whether any disparity that arises from the sentencing of his co-offenders gives rise to such disproportion that this Court is required to re-sentence the applicant in the present proceedings. 50It is clear from the remarks on sentence that the applicant's offending was extremely serious and the circumstances well justified the sentencing judge in concluding that the objective seriousness of the offences fell within the highest range. In this regard, his Honour identified a number of circumstances including:- (1) That the offences were committed by the offenders in the company of each other. (2) That the pistols were armed and unsecured. (3) That they were hidden within a vehicle in a public place. (4) That they represented a high risk to members of the public and to the arresting police. (5) That they were located together with additional ammunition for each. (6) The vehicle also contained a balaclava and two pairs of gloves (the means of disguise), a concealed machete and a stun device. 51The sentence imposed by the sentencing judge in respect of Count 1, the offence under s.7(1) of the Firearms Act , namely, a total term of imprisonment of 5 years and 4 months comprised of a non-parole period of 4 years, in my opinion, could be regarded as a moderate, if not a lenient, sentence, having regard to the objective seriousness of the offence, the fact that the offence was committed whilst on bail and that there were no strong subjective circumstances. 52Further, on the basis that this Court does not re-sentence the applicant, the calculations set out in paragraph [45] indicate that there is only a marginal difference between a sentence to be imposed on the applicant reduced only by 25% and those imposed by this Court in respect of the applicant's co-offenders, Do and Tran. Conclusions 53It could hardly be said in the present case that any disparity, should this Court not re-sentence the applicant afresh, would be "marked" , "gross" , "glaring" or "manifest" , terms that have been used to describe the basis upon which a justifiable sense of grievance may arise due to a disparity in sentencing. 54Accordingly, the question is whether or not the Court in the present application is required to re-sentence the applicant in circumstances where no marked disparity would exist if this Court did not re-sentence the applicant afresh. That question should, in my opinion, be answered in the negative. 55There was no other principle identified by counsel which would require this Court to re-sentence the applicant other than general notions of "fairness" and that to re-sentence would be consistent with the administration of justice. 56In the applicant's supplementary submissions, the accuracy of the calculations made by the Crown based on a discount of 25% for the applicant's plea of guilty, as I have earlier stated, was agreed. 57On the basis that the ground of appeal based upon the provisions of s.17(1)(a) of the Criminal Case Conferencing Trial Act has been made out, I propose the following orders:- (1) That the time for the application for leave to appeal against sentence be granted. (2) That the sentences of the District Court be set aside. (3) That the applicant be re-sentenced as follows:- (a) Count 1: In relation to Count 1, the applicant is sentenced to a non-parole period of 3 years and 9 months to commence on 10 August 2008 and to expire on 9 May 2012 and a balance of term of 1 year and 3 months to expire on 9 August 2013. (b) Count 2: In relation to Count 2, the applicant is sentenced to a fixed term of 2 years and 4 months to commence on 10 August 2008 and to expire on 9 December 2010. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2011