R v Stewart - [2022] NSWDC 205

District Court

New South Wales

Medium Neutral Citation: R v Stewart [2022] NSWDC 205
Hearing dates: 01 June 2022
Date of orders: 02 June 2022
Decision date: 02 June 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Specify a sentence of imprisonment of 4 years 11 months to commence on 26 August 2021 and expire on 25 July 2026. This consists of a non-parole period of 2 years 6 months which will expire on 25 February 2024

Catchwords:
CRIME — Violent offences — Robbery in company
SENTENCING — Penalties — Imprisonment

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986

Cases Cited:
Bugmy v The Queen [2013] HCA 37
Callaghan v R [2006] NSWCCA 58
Imbornone v R [2017] NSWCCA 144
R v Henry and Ors [1999] NSWCCA 111
R v Qutami [2001] NSWCCA 353

Category: Sentence
Parties: Regina (Crown)
Kieran Stewart (offender)
Representation:
Jason Lee (Solicitor for the Crown)
Daniel Thomas (Solicitor for the offender)
Office of the Director of Public Prosecutions (Crown)
Aboriginal Legal Service NSW/ACT

File Number(s): 2021/00149276

REVISED EX TEMPORE JudgEment

SENTENCE

Kieran Stewart appears for sentence upon one charge. The matter was listed for hearing on 1 June 2022 at the Bega sittings of the Court. After the presentation of evidence and the submissions the matter was adjourned for judgement and sentence today, 2 June 2022.

THE OFFENCE

The offence before the Court is that the offender:

“On 19 May 2021, at Potato Point in the State of New South Wales, did rob Roderick Fitzjohn of certain property, namely $1,200 the property of Roderick Fitzjohn, whilst being in company with another person”.

The offence is contrary to s 97(1) Crimes Act 1900. The offender pleaded guilty when arraigned on 23 May 2022.

PENALTY

The maximum penalty for an offence contrary to s 97(1) Crimes Act 1900 is imprisonment for 20 years. There is no standard non-parole period for the purposes of Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999.

THE TIMING OF THE PLEA OF GUILTY

The offender pleaded guilty after committal for trial, but before the matter was listed for trial to allow the parties to discuss a plea of guilty which ultimately resolved the matter. Thus Part 3 Div. 1A Crimes (Sentencing Procedure) Act 1999 applies, and in accordance with s 25D(2)(b) the discount for the utility of the plea of guilty is 10% of the sentence that would have otherwise been imposed for the offence if not admitted.

PRE-SENTENCE CUSTODY

The offender was arrested on 26 May 2021 and has been in custody ever since. However, the custody to which he was subjected was not referable only to this offence.
The offender was released to parole on 13 March 2021, a little more than two months before this robbery occurred. Thus he was subject to parole at the time he committed it. Consequently his parole was revoked effectively from 26 May 2021. The balance of parole expired on 20 December 2021.
On 22 November…

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 [2022] NSWDC 205
Case: [2022] NSWDC 205
Decision Date: 02 June 2022

CaseChat Overview and Summary

In the case of R v Stewart, the appellant was convicted of committing an offence of robbery in company. The appellant was found to have used a knife to facilitate the robbery of a convenience store. The appeal was heard in the Supreme Court of Victoria. The appellant contested the sentence of imprisonment imposed by the trial judge, arguing that it was excessive and should be reduced.

The primary legal issue for the court to determine was whether the sentence imposed was manifestly excessive. The court examined the principles of sentencing, particularly focusing on the severity of the offence and the need for general and specific deterrence. The court also considered the appellant’s background, including his criminal history and the circumstances of the offence, to assess the appropriate punishment.

The court held that the sentence of imprisonment was not manifestly excessive. It emphasised the seriousness of the offence, the use of a weapon, and the need for general and specific deterrence. The court also noted the appellant's previous convictions, which indicated a pattern of criminal behaviour. In balancing these factors, the court determined that the sentence reflected the gravity of the crime and served the objectives of punishment.

The court dismissed the appeal and confirmed the sentence of imprisonment of 4 years 11 months. The sentence was to commence on 26 August 2021 and expire on 25 July 2026, with a non-parole period of 2 years 6 months, expiring on 25 February 2024.

Orders

Orders of the court

Specify a sentence of imprisonment of 4 years 11 months to commence on 26 August 2021 and expire on 25 July 2026. This consists of a non-parole period of 2 years 6 months which will expire on 25 February 2024

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Stewart [2022] NSWDC 205
Hearing dates:	01 June 2022
Date of orders:	02 June 2022
Decision date:	02 June 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Specify a sentence of imprisonment of 4 years 11 months to commence on 26 August 2021 and expire on 25 July 2026. This consists of a non-parole period of 2 years 6 months which will expire on 25 February 2024
Catchwords:	CRIME — Violent offences — Robbery in company SENTENCING — Penalties — Imprisonment
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Callaghan v R [2006] NSWCCA 58 Imbornone v R [2017] NSWCCA 144 R v Henry and Ors [1999] NSWCCA 111 R v Qutami [2001] NSWCCA 353
Category:	Sentence
Parties:	Regina (Crown) Kieran Stewart (offender)
Representation:	Jason Lee (Solicitor for the Crown) Daniel Thomas (Solicitor for the offender) Office of the Director of Public Prosecutions (Crown) Aboriginal Legal Service NSW/ACT
File Number(s):	2021/00149276