R (Cth) v Ian Robert CHALMERS (No 2) [2007] NSWCCA 340

R (Cth) v Ian Robert CHALMERS (No 2) [2007] NSWCCA 340

The jurisdictional gateway under s 43 was not opened because, although the earlier reasons did not expressly state that the discount for assistance was allowed or refused, the Court had been aware of the discount, had selected a sentence by reference to comparable sentences in which some discounts for assistance were built into the range, and had chosen the very lowest end of that range in accordance with principles applicable to Crown appeals. The applicant was therefore not denied the benefit of the finding as to his assistance, and the sentence was not shown to be contrary to law.

Jurisdiction
Australia
Judgment Date
12 December 2007
Procedural Posture
Criminal Law; Application to Reopen Appeal Pursuant to S 43 Crimes (sentencing Procedure) Act 1999 / On the Papers in the New South Wales Court of Criminal Appeal After Crown Sentencing Appeal
Outcome
Application dismissed.
Legal Topics
['application to Reopen Appeal' 'sentencing Error' 'penalty Contrary to Law' 'discount for Assistance to Authorities' 'crown Appeal Against Sentence']
['criminal Law' 'sentencing' 'criminal Appeals'] ['application to Reopen Appeal' 'sentencing Error' 'penalty Contrary to Law' 'discount for Assistance to Authorities' 'crown Appeal Against Sentence']

Case Brief

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Procedural Posture

Criminal Law; Application to Reopen Appeal Pursuant to S 43 Crimes (sentencing Procedure) Act 1999 / On the Papers in the New South Wales Court of Criminal Appeal After Crown Sentencing Appeal

Legal Issues

  1. 1 ['Whether the sentence imposed by the Court of Criminal Appeal was "contrary to law" for the purposes of s 43 of the Crimes (Sentencing Procedure) Act 1999.' 'Whether the applicant was entitled to have a 10 percent discount for assistance to authorities replicated on re-sentencing after the Crown appeal.' "Whether the Court had failed to consider the applicant's assistance when imposing the substituted sentence."]

Ratio Decidendi

The jurisdictional gateway under s 43 was not opened because, although the earlier reasons did not expressly state that the discount for assistance was allowed or refused, the Court had been aware of the discount, had selected a sentence by reference to comparable sentences in which some discounts for assistance were built into the range, and had chosen the very lowest end of that range in accordance with principles applicable to Crown appeals. The applicant was therefore not denied the benefit of the finding as to his assistance, and the sentence was not shown to be contrary to law.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.']