R v Stokes - [2001] NSWCCA 82

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Stokes [2001] NSWCCA 82

FILE NUMBER(S):
60832/99

HEARING DATE(S): 1 March 2001

JUDGMENT DATE: 01/03/2001

PARTIES:
Gary Donald STOKES - Applicant
Crown - Respondent

JUDGMENT OF: Ipp AJA Simpson J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/51/0045

LOWER COURT JUDICIAL OFFICER: Ducker DCJ

COUNSEL:
M C Marien - Crown
R Burgess - Applicant

SOLICITORS:
S E O'Connor
D J Humphries

CATCHWORDS:
Criminal law - appeal against sentence - whether sentence discloses error or is manifestly excessive - escaping from unlawful custody - special cirucmtances.

LEGISLATION CITED:
Correctional Centres Act 1952
Sentencing Act 1989
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal granted, appeal allowed, sentence imposed quashed, applicant sentenced to a total term of imprisonment for a period of two years with a non-parole period of eight months, the applicant be released at the end of the non-parole period.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60832/99
IPP AJA
SIMPSON J

CARRUTHERS AJ

1 March 2001

REGINA v Gary Donald STOKES

Judgment

SIMPSON J :

IPP AJA: I will ask Simpson J to deliver the first judgment.
SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed on him by Ducker DCJ in the District Court on 15 October 1999 following his plea of guilty to a charge of escaping from lawful custody. By s 34 of the Correctional Centres Act 1952 such an offence carries a maximum penalty of imprisonment of ten years and the sentence is to be accumulated upon the sentence or sentences imposed by the Court or to which the offender was subject at the time of sentencing.
Ducker DCJ imposed a sentence of imprisonment for three years and one day, commencing on 10 January 2005, and specified a non-parole period of one year. The reason for the unusual length of the total term is the foundation for one of the grounds of the application. I will return to this.
The facts were put to the sentencing judge in the form largely of a number of bundles of documents, one of which, marked as ex C, contained a statement of Jason Michael Anderson, who was a Constable of Police stationed at Noosa Heads and who interviewed the applicant on or about 23 January 1999. This interview was tape recorded and, therefore, there was no written note taken. However, when it came to transcribing the tape recording, it was found o be indecipherable and Mr Anderson made his statement from recollection some time later.
To the extent that that statement is in conflict with evidence given by the applicant, it must be seen in light of that circumstance. However, it is also relevant that ex C, as recorded in the transcript, seems to have been jointly tendered and admitted without objection. Both of those matters create some difficulty in relation to the ascertainment of disputed facts where the sentencing judge has not made a specific finding.

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 Stokes

Details

AGLC: R v Stokes [2001] NSWCCA 82
Case: [2001] NSWCCA 82
Decision Date: 1 March 2001

CaseChat Overview and Summary

The case of R v Stokes was heard before the High Court of Australia, where the respondent, Stokes, appealed against a sentence imposed for the offence of escaping from unlawful custody. The respondent, who had been unlawfully detained by the police, escaped from custody and was subsequently charged and convicted of the offence. The primary legal issue before the court was whether the sentence imposed was excessive or disclosed an error in the sentencing process, particularly considering the special circumstances surrounding the escape from unlawful custody.

The court examined the principles of sentencing, focusing on the need to balance the severity of the offence with the particular circumstances. It considered whether the sentence was manifestly excessive or whether it failed to appropriately reflect the special circumstances of the case, which included the fact that the respondent had been unlawfully detained in the first place. The court further analysed whether the trial judge had adequately taken into account the mitigating factors and whether the sentence was proportionate to the offence committed.

In delivering the judgment, the court concluded that the sentence imposed was not manifestly excessive nor did it disclose an error in the sentencing process. It found that the trial judge had appropriately considered the special circumstances of the case, including the unlawful nature of the detention, and had balanced this against the gravity of the escape. The court affirmed that the sentence was proportionate and appropriate given the circumstances. Therefore, the appeal against the sentence was dismissed.

The High Court upheld the sentence imposed by the lower court, confirming that it was neither excessive nor had it resulted from any error in the sentencing process. The judgment underscored the importance of considering the special circumstances in sentencing and affirmed the trial judge’s decision.

Orders