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R v Stoupe

R v Stoupe

Case [2015] NSWCCA 175 3 July 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Stoupe [2015] NSWCCA 175
Hearing dates: 29 May 2015
Decision date: 03 July 2015
Before: Hoeben CJ at CL at [1];
Johnson J at [2];
Beech-Jones J at [134]
Decision:
1. Crown appeal allowed.
2. Sentence imposed at the Parramatta District Court on 28 November 2014 is set aside.
3. In its place, the Respondent is sentenced to an aggregate sentence of imprisonment comprising a non-parole period of two years and six months commencing on 19 November 2014 and expiring on 18 May 2017, with a balance of term of one year and six months commencing on 19 May 2017 and concluding on 18 November 2018.
4. The earliest date upon which the Respondent will be eligible for release on parole is 19 May 2017.

Catchwords: CRIMINAL LAW - Crown appeal - sentencing - Respondent pleaded guilty to one count of aggravated filming of a person engaged in a private act (s.91K(3) Crimes Act 1900) and three counts of aggravated indecent assault (s.61M(2) Crimes Act 1900) - victim eight year old girl - Respondent was supervisor at victim’s child care centre - all offences committed by Respondent against victim at child care centre over a six-month period - Respondents prior good character not a mitigating factor by operation of s.21A(5A) Crimes (Sentencing Procedure) Act 1999 - aggregate sentence of 16 months imposed with non-parole period of eight months - offending aggravated by Respondent’s position of trust and authority - aggregate sentence failed to reflect total criminality - sentence manifestly inadequate - residual discretion to resentence the Respondent exercised - appeal allowed - Respondent resentenced to aggregate head sentence of four years with non-parole period of two years and six months
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Crimes Amendment (Sexual Offences) Act 2008
Criminal Appeal Act 1912
Cases Cited: AH v R [2015] NSWCCA 51
CMB v Attorney General for New South Wales [2015] HCA 9; 89 ALJR 407
Corby v R [2010] NSWCCA 146
Everett v The Queen [1994] HCA 49; 181 CLR 295
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
House v The King [1936] HCA 40; 55 CLR 499
JM v R [2014] NSWCCA 297
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Dodd (1991) 57 A Crim R 349
R v Gavel [2014] NSWCCA 56
R v Lord [2013] NSWDC 16
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Truong v R [2013] NSWCCA 36
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Texts Cited: ---
Category: Principal judgment
Parties: Regina (Appellant)
Nikki Bjorn Stoupe (Respondent)
Representation:
Counsel:
Mr PG Ingram SC (Appellant)
Ms RW Burgess (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)

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 Stoupe

Details

AGLC: R v Stoupe [2015] NSWCCA 175
Case: [2015] NSWCCA 175
Decision Date: 03 July 2015

CaseChat Overview and Summary

In the matter of R v Stoupe, the respondent pleaded guilty to a series of serious offences against an eight-year-old girl, committed at a child care centre where the respondent was a supervisor. The charges included one count of aggravated filming of a person engaged in a private act and three counts of aggravated indecent assault. The Crown appealed the sentence of 16 months imprisonment, with an eight-month non-parole period, imposed by the court, arguing it was manifestly inadequate.

The legal issues before the court were whether the original sentence sufficiently reflected the gravity of the offences and whether the court had properly exercised its residual discretion under s.6A of the Crimes (Sentencing Procedure) Act 1999 to resentence the respondent. The court had to consider the aggravating factors, including the respondent’s position of trust and authority, and whether the prior good character of the respondent could be considered a mitigating factor.

The court found that the original sentence did not adequately reflect the total criminality of the respondent’s actions. It highlighted that the position of trust and authority significantly aggravated the offences. The court also noted that the prior good character of the respondent did not mitigate the sentence as per s.21A(5A) of the Crimes (Sentencing Procedure) Act 1999. Exercising its residual discretion, the court resentenced the respondent to an aggregate sentence of four years imprisonment, with a non-parole period of two years and six months, deeming the sentence more reflective of the seriousness of the crimes committed.

The appeal was allowed, and the respondent was resentenced accordingly. The court’s decision emphasised the importance of sentencing that adequately addresses the gravity of such offences, particularly when committed by someone in a position of trust.

Orders