R v Stefanac

Case [2022] NSWCCA 129


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: R v Stefanac [2022] NSWCCA 129
Hearing dates: 16 May 2022
Date of orders: 17 June 2022
Decision date: 17 June 2022
Before: 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

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 44, 53A, 54A, 54B, 54C

Crimes Act 1900 (NSW) ss 66C, 66DB, 578A

Children (Criminal Proceedings) Act 1987 (NSW) s 15A

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Bustescu v R [2020] NSWCCA 113

Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41

CMB v The Attorney-General for New South Wales [2015] 317 ALR 308; [2015] HCA 9

Culbert v R [2021] NSWCCA 38

DBW v R [2007] NSWCCA 236

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

GP v R [2016] NSWCCA 150

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hunter v R [2020] NSWCCA 285

JM v R [2014] NSWCCA 297; 246 A Crim R 528

Mbele v R [2021] NSWCCA 182

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64].

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

Power v The Queen (1974) 131 CLR 623 at 628; [1974] HCA 26

R v Gavel [2014] NSWCCA 56

R v MAK: R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v McKenzie [2022] NSWCCA 119

R v Nelson [2016] NSWCCA 130

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 297

Ryan v R [2019] NSWCCA 200

Category:Principal judgment
Parties: Regina (Appellant)
Brandon Branko Stefanac (Respondent)
Representation:

Counsel:
E Balodis (Appellant)
T…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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