Beech-Jones CJ at CL at [1]; Hamill J at [2]; N Adams J at [44].
Decision:
(1) Crown appeal allowed.
(2) The aggregate sentence imposed by Judge English on 22 September 2021 is quashed; in lieu thereof, the respondent is sentenced to an aggregate sentence of 12 years’ imprisonment to commence on 21 July 2020 and expire on 20 July 2032 with an aggregate non-parole period of 7 years to expire on 20 July 2027.
Catchwords:
CRIMINAL LAW – sentence – prosecution appeal against inadequacy – sexual offending against two children – whether judge failed to apply standard non-parole period – use of word “depart” or “departure” from standard non-parole period – whether indicative of error – aggregate sentence – where indicative sentences significantly below standard non-parole period – whether indicative of error
CIRMINAL LAW – sentencing – totality and proportionality – whether Judge erred in application of totality principle – whether sentence reflected the criminality against separate victims and in separate time frames – whether sentence manifestly inadequate as a result – (by majority) aggregate sentence increased – totality principle – notional accumulation within aggregate sentence
Regina (Appellant) Brandon Branko Stefanac (Respondent)
Representation:
Counsel: E Balodis (Appellant) T…
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 Stefanac [2022] NSWCCA 129
Case
[2022] NSWCCA 129
Decision Date
CaseChat Overview and Summary
The case of R v Stefanac involved a defendant, Stefanac, appealing against the inadequacy of his sentence for sexual offences against two children. The matter was heard by the High Court of Australia, which was required to determine whether the judge erred in applying the principles of totality and proportionality in sentencing. The prosecution appealed, arguing that the trial judge failed to adequately apply the standard non-parole period and that the aggregate sentence was significantly below what would be expected. The court had to decide whether the use of the term "depart" or "departure" from the standard non-parole period indicated an error and whether the aggregate sentence was indicative of a failure to apply the totality and proportionality principles correctly.
The High Court considered whether the judge's approach to sentencing, particularly in relation to the principle of totality, was flawed. The majority found that the trial judge did not fully apply the principle of totality, which requires consideration of the overall criminality of the offending against multiple victims. The court held that the aggregate sentence did not reflect the criminality of the offences, which occurred against separate victims and over separate time frames. The majority determined that the sentence was manifestly inadequate as a result of these errors. The majority also held that the term "depart" or "departure" from the standard non-parole period did not necessarily indicate an error but rather a considered decision by the trial judge. However, in this case, the aggregate sentence was significantly below the standard non-parole period, indicating a failure to apply the totality principle.
The High Court increased the aggregate sentence, finding it was necessary to ensure the sentence reflected the criminality of the offences against separate victims over separate time frames. The majority emphasised that the principle of totality requires the sentence to account for the cumulative impact of the offences. The court's decision underscored the importance of applying the totality principle correctly to ensure that the sentence is proportionate to the overall criminality of the offending. The final orders of the court included an increase in the aggregate sentence to better reflect the criminality of the offences against multiple victims.