District Court New South Wales Medium Neutral Citation: Charnock v R [2015] NSWDC 361 Decision date: 10 November 2015 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Leave granted to withdraw conviction appeal. Application to set aside guilty plea dismissed. Sentence appeal allowed. Sentences set aside and under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction, the appellant is found guilty and the charges are dismissed. Catchwords: CRIMINAL LAW – appeal against sentence – particular offences – reckless damage – trespass on train lines – youth of appellant – 20 years old – minor antecedents – spent two nights in custody – traumatising and sobering experience – specific deterrence – no conviction recorded Legislation Cited: Crimes Act 1900 (NSW) 195(1)(a) Crimes (Appeal and Review) Act 1999 (NSW), s 20 Crimes (Sentencing Procedure) Act 1999 (NW), s 10(1)(a) Passenger Transport Regulation 2007 (NSW), r 68J(1)(b) Category: Principal judgment Parties: Cody Charnock (Appellant) Regina (Crown) (Respondent) Representation: Solicitors: S Moore, Moore Law Firm (Appellant) M Fay, Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2015/232077 Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 10 August 2015 Before: Lucas LCM File Number(s): 2015/232077 Judgment 1. Cody Charnock did a very stupid thing when he was drunk on the night of 9 August this year. He had been refused entry to a local hotel here in Orange. Upset, he went and kicked a car and smashed its window. Fortunately for the car owner and unfortunately for Mr Charnock, he did this in view of the local police. They pursued him and he ran away onto a train track. That itself is also illegal. They finally arrested him and he was charged with two offences, reckless damage to property and running onto the train lines. 2. The reckless damage is an offence against s 195(1)(a) of Crimes Act 1900 (NSW). The railway line offence is against r 68J(1)(b) of the Passenger Transport Regulation 2007 (NSW). 3. Mr Charnock was refused bail and spent two nights in custody. The second night was apparently spent in Bathurst Correctional Centre, a medium security institution. In other evidence which I will mark as an exhibit shortly, Mr Charnock - who is still only 20 and was 20 when this happened - was clearly frightened by the experience. Mr Charnock's criminal record contains only one entry, which was driving whilst his licence was suspended and he received a fine. 4. When Mr Charnock went to Court he pleaded guilty in the Orange Local Court, where Magistrate Lucas fined him $600 for the reckless damage and $200 for the train line offence. 5. He appealed to this Court and originally sought leave to set aside his plea of guilty and therefore the conviction. Mr S Moore, solicitor, who appears for him, prepared a very detailed and comprehensive argument in support of that. I do not need to make any findings in respect of that application or deal with any of the submissions which are made in that application. However, the application was supported by an affidavit by Mr Charnock, which was the source of the information I have about his experience in prison. HIS HONOUR: Just while I think of it the schedule of documents which was tendered and the accompanying documents tendered by Mr Moore originally on the conviction appeal I will mark as exhibit 1. 1. Mr Moore, on behalf of his client, withdrew the conviction appeal and I have granted him leave to do so and I have dismissed the application for leave to set aside the plea of guilty. Mr Moore then proceeds to confirm his client's plea and asks me to make an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). 2. A number of factors favour that. One is the age of his client; he is only 20 and a relatively young man. Second are his antecedents; he has one minor item on his record. A third is the fact that for these two offences that would normally attract the kind of penalty the Magistrate imposed (a fine), he has served in effect two days in custody. It was a traumatising and sobering experience for the young man and amounted to more than enough deterrence I expect. 3. For that reason I propose to grant Mr Moore's application. 4. The formal orders which I make are these. I grant Mr Moore leave to withdraw the application for leave to set aside the plea of guilty, and that application is dismissed. Under s 20(2) of the Crimes (Appeal and Review) Act 2001 (NSW), I determine the remaining appeal against sentence by setting aside both sentences. Instead of those sentences in respect of both offences, under s10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, without proceeding to conviction, I find Mr Charnock guilty of the offences and I make orders directing that the relevant charges be dismissed. HIS HONOUR: All right Mr Charnock you have won your appeal. Mr Moore's very good submissions and your taking of his advice have meant that there is no conviction against you, do you understand? APPELLANT: Yeah. HIS HONOUR: All right good luck. Do not do anything silly like that again, okay. ********** 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: 10 February 2016