CHOMPEAY v REGINA

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.