R v Stewart - [2016] NSWDC 423

District Court

New South Wales

Medium Neutral Citation: R v STEWART [2016] NSWDC 423
Hearing dates: 08/04/2016
Date of orders: 21 April 2016
Decision date: 21 April 2016
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Seq 1 - Convicted: Sentenced to a term of imprisonment 2 years and 3 months with a non parole period being 1 year
Seq 3 - Convicted: Sentenced to a term of imprisonment of 9 months.
Seq 2 – Convicted: Sentenced to a term of imprisonment of 3 years 6 months with a non parole period being 1 year

Catchwords: Criminal – Sentence, armed robbery, attempted robbery in company, intimidation with intent to cause fear of physical harm, parity, totality, individual justice, young offender, matters on a Form 1.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: Attorney General’s Application (No 1) of 2002 (2002) 56 NSWLR 147
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Harris and Huynh [2005] NSWCCA 220
Mill v R (1988) 166 CLR 59
Pearce v R (1998) 194 CLR
R v Ponfield [1999] NSWCC 435
Veen (No 2) v The Queen (1988) 165 CLR 365
Category: Sentence
Parties: Regina
Thomas Alexander Stewart - Offender
Representation:
Counsel:
Mr Charles – Director of Public Prosecutions
Mr Vizintif - Offender
Solicitors:
Director of Public Prosecutions

File Number(s): 2013/32359; 2014/188875

Sentence

HIS HONOUR: Thomas Stewart appears today for sentence in relation to three offences with a number of offences on two separate Forms 1. The matters for which he is for sentence, the matters to be taken into account and his custody situation are a complicated affair and to some extent his criminal history is a complicated affair, given the fact that in various ways he has been in breach of conditional liberty on the various occasions that he has committed offences for which he is to be sentenced today.
Mr Stewart was born in October 1994. It would appear to me on my calculation he is thus 21 years of age to turn 22 at the end of this year in October. However a number of the offences, in fact all bar one of the offences with which I am concerned, including the matters on the Form 1, were committed in 2014. The first “principal” offence by reference to the Crimes (Sentencing Procedure) Act 1999, hereinafter to be referred to as “the Act”, was an offence committed on 24 February 2014 when he would have been 19 years and approximately four months of age. The last offence in time as I calculate the various dates was committed on 15 January 2015. He was 22 years of age then.
To go through the various offences, the first principal offence with two matters on a Form 1 is an offence shortly described as “attempted robbery in company”. This is an offence committed on 24 February 2014, as I said it is contrary to s 97(1) Crimes Act 1900. It carries a maximum penalty of 20 years…

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 [2016] NSWDC 423
Case: [2016] NSWDC 423
Decision Date: 21 April 2016

CaseChat Overview and Summary

The case of R v Stewart was heard in a court where the defendant faced multiple charges, including armed robbery, attempted robbery in company, and intimidation with intent to cause fear of physical harm. The court was required to decide on the appropriate sentences for each offence, taking into account the principles of parity, totality, and individual justice. The defendant was also considered a young offender, and there were matters on a Form 1 that needed to be addressed during sentencing.

The legal issues the court needed to resolve involved balancing the severity of the offences with the need to consider the defendant's age and the circumstances surrounding the crimes. The court had to ensure that the sentences were proportionate to the crimes committed while also considering the principles of parity, which means that similar crimes should receive similar sentences, and totality, which means that the overall sentence for multiple crimes should not be greater than the sum of the individual sentences for each crime. Additionally, the court had to ensure that the sentences were just for the individual defendant, taking into account his age and any other relevant mitigating factors.

After considering the evidence and arguments presented, the court found the defendant guilty of the charges and proceeded to sentence him accordingly. The court determined that a term of imprisonment of two years and three months was appropriate for the armed robbery charge, with a non-parole period of one year. For the attempted robbery in company charge, the court sentenced the defendant to a term of imprisonment of nine months. Finally, for the intimidation charge, the court imposed a sentence of three years and six months, with a non-parole period of one year. The court's decision was based on a careful consideration of the principles of parity, totality, and individual justice, as well as the specific circumstances of the case.

The final orders of the court were that the defendant was to be sentenced to a term of imprisonment of two years and three months for the armed robbery charge, with a non-parole period of one year. For the attempted robbery in company charge, the defendant was to be sentenced to a term of imprisonment of nine months. Lastly, for the intimidation charge, the defendant was to be sentenced to a term of imprisonment of three years and six months, with a non-parole period of one year.

Orders

Orders of the court

Seq 1 - Convicted: Sentenced to a term of imprisonment 2 years and 3 months with a non parole period being 1 year

Seq 3 - Convicted: Sentenced to a term of imprisonment of 9 months.

Seq 2 – Convicted: Sentenced to a term of imprisonment of 3 years 6 months with a non parole period being 1 year

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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Medium Neutral Citation:	R v STEWART [2016] NSWDC 423
Hearing dates:	08/04/2016
Date of orders:	21 April 2016
Decision date:	21 April 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Seq 1 - Convicted: Sentenced to a term of imprisonment 2 years and 3 months with a non parole period being 1 year Seq 3 - Convicted: Sentenced to a term of imprisonment of 9 months. Seq 2 – Convicted: Sentenced to a term of imprisonment of 3 years 6 months with a non parole period being 1 year
Catchwords:	Criminal – Sentence, armed robbery, attempted robbery in company, intimidation with intent to cause fear of physical harm, parity, totality, individual justice, young offender, matters on a Form 1.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Attorney General’s Application (No 1) of 2002 (2002) 56 NSWLR 147 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Harris and Huynh [2005] NSWCCA 220 Mill v R (1988) 166 CLR 59 Pearce v R (1998) 194 CLR R v Ponfield [1999] NSWCC 435 Veen (No 2) v The Queen (1988) 165 CLR 365
Category:	Sentence
Parties:	Regina Thomas Alexander Stewart - Offender
Representation:	Counsel: Mr Charles – Director of Public Prosecutions Mr Vizintif - Offender Solicitors: Director of Public Prosecutions
File Number(s):	2013/32359; 2014/188875