Spigelman CJ at 1; Hulme J at 6; Carruthers AJ at 171
DECISION:
Crown appeal allowed; Sentences imposed by Shadbolt DCJ quashed; In lieu thereof the Respondent be sentenced to imprisonment for a term of nineteen years to date from 27 July 2001 and to expire on 26 July 2020 with a non-parole period of twelve years to date from 27 July 2001 and to expire on 26 July 2013; Direct the Solicitor for the Respondent to explain to the Respondent, as required by s16F of the Crimes Act, the sentence and the purpose and consequences of the non-parole period.
PARTIES :
Regina Simon Stanbouli
FILE NUMBER(S):
CCA 60509/02
COUNSEL:
Crown: RF Sutherland SC Respondent: J Dailly SC
SOLICITORS:
Crown: Commonwealth Director of Public Prosecutions Respondent: Walter Madden Jenkins
LOWER COURTJURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :
Shadbolt DCJ
- 52 -
60509/02
SPIGELMAN CJ HULME J CARRUTHERS AJ
Thursday, 4 December 2003
R v Simon STANBOULI
Judgment
1 SPIGELMAN CJ: I have read the judgments of Hulme J and Carruthers AJ in draft. Subject to one matter, I agree with the reasons of Hulme J and the head sentence he proposes.
2 The matter on which I have reservations is his Honour’s reference to life imprisonment being “the norm for those who provide important assistance in the importation of quantities of the order of that here.” [113 below].
3 I would myself reserve the term of life imprisonment as “the norm” for persons at the top of the importation hierarchy, rather than those who “provide important assistance”. Nevertheless, I agree that an appropriate starting point, in all of the circumstances of the present case, is a head sentence of 27 years after a s16G adjustment.
4 By reason of the factors referred to by Carruthers AJ, I agree that the non-parole period he proposes is more appropriate than that proposed by Hulme J. I note that the degree of harshness involved in serving a sentence in what used to be called “protective custody” may have altered by reason of change in Corrective Services practices. However, that is not a matter on which this Court was addressed.
5 Accordingly, I agree with the orders proposed by Carruthers AJ.
6 HULME J: The Respondent to this Crown appeal pleaded guilty to a charge that between about 19 July 1998 and about 9 April 2000 he conspired with a number of other persons, some named and some unnamed, to import into Australia not less than a commercial quantity of heroin.
7 On 1 November 2002, Judge Shadbolt sentenced the Respondent to imprisonment for a period of 13 years and 6 months, including a non-parole period of 10 years, both periods commencing on 27 July 2001, the date of the Respondent’s arrest. The Crown has…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Stanbouli [2003] NSWCCA 355
Case
[2003] NSWCCA 355
Decision Date
CaseChat Overview and Summary
In the case of R v Stanbouli, the Crown appealed against the sentence imposed by Shadbolt DCJ on the Respondent, Simon Stanbouli, who pleaded guilty to conspiring to import not less than a commercial quantity of heroin. The Court of Criminal Appeal allowed the appeal and re-sentenced the Respondent. The Court found the original sentence of 13 years and 6 months, including a non-parole period of 10 years, to be manifestly inadequate. The Court held that an appropriate starting point for re-sentencing was 40 years, reduced by about one-third to 27 years due to the repeal of s16G of the Crimes Act. Considering the Respondent's assistance to the authorities and his plea, the Court increased the discount to 30%, resulting in a head sentence of 19 years imprisonment. The non-parole period was set at 13 years, which was higher than the 60% commonly adopted in federal offences, taking into account the fact that the Respondent's sentence would likely be served in protective custody. The Court issued orders quashing the original sentence and re-sentencing the Respondent to 19 years imprisonment with a non-parole period of 13 years.