CHANTHABOURY v R [2007] NSWCCA 290

CHANTHABOURY v R [2007] NSWCCA 290

Despite the CAN's failure to specify 'attempted', there was no substantial miscarriage of justice because all parties knew the nature of the charge; however, the sentencing judge erred by using the wrong maximum penalty for the attempt offence, requiring resentencing on that charge.

Jurisdiction
Australia
Judgment Date
16 October 2007
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence From District Court
Outcome
Appeal against conviction dismissed; sentence appeal allowed in part; sentences quashed and resentenced as per orders.
Legal Topics
['accessory After the Fact' 'attempted Armed Robbery' 'defective Indictment' 'court Attendance Notice' 'maximum Penalty' 'sentencing' 'proviso Application']
['criminal Law'] ['accessory After the Fact' 'attempted Armed Robbery' 'defective Indictment' 'court Attendance Notice' 'maximum Penalty' 'sentencing' 'proviso Application']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence From District Court

Legal Issues

  1. 1 ["Whether the absence of the word 'attempted' in the Court Attendance Notice (CAN) invalidated the conviction for accessory after the fact to attempted armed robbery" 'Whether the sentencing judge failed to consider the correct maximum penalty for accessory after the fact to attempted armed robbery' 'Whether the sentence properly reflected differences in penalties between the applicant and co-offender' 'Whether the overall sentence was manifestly excessive']

Ratio Decidendi

Despite the CAN's failure to specify 'attempted', there was no substantial miscarriage of justice because all parties knew the nature of the charge; however, the sentencing judge erred by using the wrong maximum penalty for the attempt offence, requiring resentencing on that charge.

Court Disposition

Appeal against conviction dismissed; sentence appeal allowed in part; sentences quashed and resentenced as per orders.

Orders

  • ['Appeal against conviction dismissed.' "Grant leave to appeal against sentence, uphold that appeal on the 'attempt charge' and quash the sentence imposed on that charge; by reason of the sentencing structure, quash the sentence on the 'completed charge'." "On the 'attempt charge' the appellant is sentenced to a...