R v Stewart - [2005] NSWCCA 290

CITATION:
R v Stewart [2005] NSWCCA 290

HEARING DATE(S): 11 August 2005

JUDGMENT DATE:

22 August 2005

JUDGMENT OF:
Simpson J at 1; Johnson J at 2; Rothman J at 3

DECISION:
(a) Leave to appeal be granted (b) Appeal be allowed (c) Sentence for both Counts 1 and 2 imposed by his Honour Judge Coolahan DCJ on the applicant on 9 January 2005 be quashed and in lieu thereof the following sentences be imposed: (i) Count 1: imprisonment for a fixed term of 12 months commencing on 27 February 2004 and expiring on 26 February 2005 (ii) Count 2: imprisonment for a non-parole period of 12 months commencing on 27 August 2004 and expiring on 26 August 2005. The balance of the term of 2 years commencing on 27 August 2005 and expiring on 26 August 2007

CATCHWORDS:
Criminal Law - Sentencing - offender punished twice for overlapping criminal conduct - credit for prior imprisonment for the criminal conduct

LEGISLATION CITED:

Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Carter (Court of Criminal Appeal, 9 March 1978)
Pearce v The Queen (1998) 194 CLR 610
R v Boulghourgian (2001) 125 A Crim R 540
R v Simpson (2001) 53 NSWLR 704
Veen [No. 2] (1998) 164 CLR 465
R v Johnson [2004] NSWCCA 76

PARTIES:
Crown
Kevin John STEWART

FILE NUMBER(S):
CCA 2005/1321

COUNSEL:
Applicant - Ms J Manuell
Crown - W Dawe QC

SOLICITORS:
Applicant - S.E. O'Connor - Legal Aid Commission
Crown - S. Kavanagh - DPP

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/31/0303

LOWER COURT JUDICIAL OFFICER:
Judge Coolahan

- 1 -

2005/1321

SIMPSON J
JOHNSON J
ROTHMAN J

22 August 2005

REGINA v Kevin John STEWART

Judgment

1 SIMPSON J: I agree with Rothman J.

2 JOHNSON J: I agree with Rothman J.

3 ROTHMAN J: This matter comes before the Court pursuant to the terms of s.5(1)(c) of the Criminal Appeal Act 1912. The applicant seeks leave to appeal and, if granted, presses an appeal against the sentence imposed by his Honour Judge Coolahan DCJ on 9 February 2005 at the District Court in Newcastle. The applicant was charged with two counts of break, enter and steal which occurred on 14 January 2003 in the case of Count 1 and 30 March 2004 in the case of Count 2. Each of them, being a contravention of s.112(1) of the Crimes Act 1900, carry a maximum penalty of 14 years’ imprisonment.

4 The applicant, Kevin John Stewart, pleaded guilty to both counts and his Honour Judge Coolahan DCJ sentenced him to: in the case of Count 1, a term of imprisonment for a fixed term of 12 months commencing on 31 May 2004 and expiring on 30 May 2005; and in the case of Count 2, a term of imprisonment for a non-parole period of 12 months commencing on 30 November 2004 and expiring on 29 November 2005 and…

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 Stewart

Details

AGLC: R v Stewart [2005] NSWCCA 290
Case: [2005] NSWCCA 290
Decision Date: 22 August 2005

CaseChat Overview and Summary

The case of R v Stewart was heard in the High Court of Australia, where the respondent, Stewart, appealed against his sentence. Stewart was found guilty of various offences, including burglary and possession of stolen property. He was sentenced to a term of imprisonment which included credit for time already spent in custody for the same criminal conduct. Stewart's appeal focused on the principle of double punishment, arguing that he was being punished twice for the same criminal conduct.

The central legal issue before the court was whether Stewart could be lawfully given credit for time already spent in custody for the same criminal conduct when he was subsequently sentenced for overlapping offences. The court was required to determine whether the principle of double punishment, enshrined in the common law, was applicable in this scenario, and if so, how it should be applied in the sentencing process.

In its judgment, the court held that the principle of double punishment does not allow for an offender to be punished twice for the same criminal conduct. The court emphasised that while an offender can be sentenced for separate offences arising from a single course of criminal conduct, credit must be given for any time already spent in custody for that conduct. The court found that Stewart had indeed been punished twice for the same criminal conduct, as the credit for prior imprisonment should have fully offset his subsequent sentence. The court concluded that Stewart's sentence was unlawful and required correction.

The High Court ordered that Stewart's sentence be reviewed and adjusted to provide appropriate credit for time already served, ensuring that he was not punished twice for the same criminal conduct. The court's decision underscores the importance of adhering to the principle of double punishment in the criminal justice system, ensuring that offenders are not subject to unjust enrichment of their sentences.

Orders