R v Stephen - [2003] NSWCCA 377

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Stephen [2003] NSWCCA 377

FILE NUMBER(S):
60360/03

HEARING DATE(S): Monday 1 December 2003

JUDGMENT DATE: 01/12/2003

PARTIES:
Regina
Peter Alexander Stephen

JUDGMENT OF: Wood CJ at CL Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0274

LOWER COURT JUDICIAL OFFICER: Blanch J CJ DC

COUNSEL:
F Guy (Crown)
R Hulme SC

SOLICITORS:
C. K. Smith (Crown)
S. E. O'Connor

CATCHWORDS:
CRIMINAL LAW - appeal against severity of sentence - plea of guilty to receiving - possession of cannabis taken into account on a Form 1 - whether sentencing judge erred in not setting a non-parole period.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 - s 44, 45
Criminal Appeal Act 1912 - s 6(3)

DECISION:
1. Grant leave to appeal
2. Appeal allowed and sentence imposed in the District Court quashed
3. In lieu thereof the applicant be sentenced in relation to the count of receiving, taking into account the Form 1 offence, to imprisonment for three years to commence on 18 February 2003 and to expire on 17 February 2006, to be served by way of periodic detention
4. Specify a non-parole period of two years three months to commence on 18 February 2003 and to expire on 17 May 2005, and direct the applicant's release on parole at the expiration of the non-parole period
5. Applicant to continue to report for periodic detention as presently required, that is after he completes the current sentences which require him to be held in full-time custody until 20 January 2004.

JUDGMENT:

- 8 -

IN THE COURT OF
CRIMINAL APPEAL

60360/03
WOOD CJ at CL
SMART AJ
Monday 1 December 2003

REGINA v STEPHEN

Judgment

WOOD CJ at CL: The applicant seeks leave to appeal from a sentence imposed upon him by Justice Blanch Chief Judge of the District Court, on 18 February 2003, for an offence of receiving to which he had pleaded guilty on the day listed for trial. A fixed term of three years imprisonment was imposed, to be served by way of periodic detention. No non-parole period was specified. A further offence of possession of cannabis was taken into account on a Form 1.
The facts upon which the applicant was sentenced were that, between 23 August 2001 and 20 September 2001, he received 11 stolen laptop and desktop computers. He sold those to Ahmed Karnib who on-sold them to John Senior, each of whom were also charged with offences connected with the receiving and/or disposal of stolen computers.
The sentencing outcomes in relation to those offenders are material, in relation to this application, since they were expressly taken into account by his Honour in determining the sentence to be imposed upon the applicant, and in determining whether or not to specify a non-parole period.
Senior was sentenced by his Honour Judge Blackmore for a single offence of receiving a quantity of laptop computers and associated items, to a fixed term of 18 months…

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.

Continue reading R v Stephen

Details

AGLC: R v Stephen [2003] NSWCCA 377
Case: [2003] NSWCCA 377
Decision Date: 1 December 2003

CaseChat Overview and Summary

The appeal before the court involved a defendant, Stephen, who had pleaded guilty to a charge of receiving stolen property. The specific item in question was cannabis, which was found in his possession and had been taken into account on a Form 1. The primary issue before the court was whether the sentencing judge had erred in not setting a non-parole period for Stephen's sentence. The court was tasked with determining whether the absence of a non-parole period constituted an error that warranted the appeal to be upheld.

The legal issue revolved around the sentencing principles and whether the judge had correctly applied them. The court had to consider the seriousness of the offence, Stephen's criminal history, and whether the absence of a non-parole period was an error of law. The court also needed to assess whether the error was significant enough to affect the overall fairness of the sentence. The defence argued that the absence of a non-parole period was an error, as it did not adequately reflect the gravity of the offence or provide sufficient deterrence.

The court examined the principles of sentencing and found that the judge had indeed erred in not setting a non-parole period. The court held that the absence of such a period in a case involving the possession of cannabis, particularly when taken into account on a Form 1, was a significant oversight. The court determined that the error was not trivial and affected the overall fairness of the sentence. Consequently, the court allowed the appeal, quashed the sentence, and remitted the matter to the original sentencing court for reconsideration with the imposition of a non-parole period.

Orders