Application by Jack Chik Chen pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1024

Application by Jack Chik Chen pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1024

There appeared to be a doubt or question concerning the sentencing Judge's approach to the Applicant's guilty plea because his Honour did not have regard to the utilitarian value of the plea, and that possible error had not been addressed as an issue in the earlier sentence appeal. That satisfied the threshold for referral, leaving it to the Court of Criminal Appeal to determine whether error is demonstrated and whether resentencing should occur.

Jurisdiction
Australia
Judgment Date
16 August 2021
Procedural Posture
Application Under Part 7 Crimes (appeal and Review) Act 2001 (nsw) for Referral to the Court of Criminal Appeal to Be Dealt With as an Appeal Against Sentence / On the Papers; Decision on Referral Application
Outcome
Application granted; the whole of the Applicant's case was referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence.
Legal Topics
['referral to Court of Criminal Appeal' 'application Under S.79(1)(b) Crimes (appeal and Review) Act 2001 (nsw)' 'utilitarian Value of Guilty Plea' 'xiao V R Error' 'conspiracy to Import a Commercial Quantity of Heroin']
['criminal Law' 'criminal Procedure' 'sentencing'] ['referral to Court of Criminal Appeal' 'application Under S.79(1)(b) Crimes (appeal and Review) Act 2001 (nsw)' 'utilitarian Value of Guilty Plea' 'xiao V R Error' 'conspiracy to Import a Commercial Quantity of Heroin']

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Procedural Posture

Application Under Part 7 Crimes (appeal and Review) Act 2001 (nsw) for Referral to the Court of Criminal Appeal to Be Dealt With as an Appeal Against Sentence / On the Papers; Decision on Referral Application

Legal Issues

  1. 1 ['Whether there appeared to be a doubt or question as to the sentence passed on the Applicant because the sentencing Judge did not have regard to the utilitarian value of the guilty plea.' "Whether the whole of the Applicant's case should be referred to the Court of Criminal Appeal under s.79(1)(b) Crimes (Appeal and Review) Act 2001 (NSW) to be dealt with as an appeal against sentence."]

Ratio Decidendi

There appeared to be a doubt or question concerning the sentencing Judge's approach to the Applicant's guilty plea because his Honour did not have regard to the utilitarian value of the plea, and that possible error had not been addressed as an issue in the earlier sentence appeal. That satisfied the threshold for referral, leaving it to the Court of Criminal Appeal to determine whether error is demonstrated and whether resentencing should occur.

Court Disposition

Application granted; the whole of the Applicant's case was referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence.

Orders

  • ["Pursuant to s.79(1)(b) Crimes (Appeal and Review) Act 2001 (NSW), the whole of the Applicant's case is referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence." "The Applicant's case should be listed before the Registrar of the Court of Criminal Appeal for further directions as soon...