R v Strbik - [2004] NSWCCA 212

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Strbik [2004] NSWCCA 212

FILE NUMBER(S):
60080/04

HEARING DATE(S): 11/06/2004

JUDGMENT DATE: 08/07/2004

PARTIES:
Regina
Peter Strbik

JUDGMENT OF: Dowd J Hislop J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1170

LOWER COURT JUDICIAL OFFICER: Backhouse DCJ

COUNSEL:
Mr G Rowling - Crown
Ms S Kluss - Applicant

SOLICITORS:
S Kavanagh - Director of Public Prosecutions (NSW)
Ross Hill & Associates

CATCHWORDS:
Criminal law
Sentencing
Car rebirthing
Severity of sentence
Totality
Reduction of non parole period.

LEGISLATION CITED:
Crimes Act 1900 - ss 154AA(1), 188, 189A(1), 322(a), 344A(1), 562AB
Crimes (Sentencing Procedure) Act 1999 - s 33

DECISION:
(1) Leave to appeal against sentences granted
(2) Dismiss the appeals against sentence on counts 1, 2, 3 (taking into account Form One) 4, 8, 9 and 10
(3) Appeals against the sentences on counts 5, 6 and 7 allowed and those sentences quashed. In lieu thereof sentence the applicant on each of those counts to a fixed term of imprisonment for 3 years to commence on 8 July 2004 and expire on 7 July 2007
(4) Appeals against the sentences on counts 11, 12, 13, 14 and 15 allowed and those sentences quashed. In lieu thereof sentence the applicant on each of those counts to a fixed term of imprisonment for 2 years to commence on 8 July 2005 and expire on 7 July 2007 on which date the applicant becomes eligible for release to parole
(5) The conditions for release to parole should provide for the supervision of the applicant by the Probation and Parole Service and require the applicant to comply with all reasonable directions of that service as to drug rehabilitation.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60080/04
DOWD J
HISLOP J
SMART AJ
8 July 2004

REGINA v PETER STRBIK

Judgment

DOWD J: I have read the judgment of Hislop J in draft form. I agree with the proposed orders and his Honour’s reasons.
HISLOP J: On 30 May 2003 the applicant pleaded guilty to 15 counts in an indictment dated 27 May 2003. Counts 1, 3, 5, 6, 7, 8, 10, 14 and 15 charged the applicant with offences of steal motor vehicle (Crimes Act 1900 s 154AA(1)), counts 2, 4, 9 and 11 with disposing of stolen property (Crimes Act 1900 s 188), count 12 with attempt steal motor vehicle (Crimes Act 1900 ss 154AA(1) and 344A(1)) and count 13 with possession of property stolen outside the State of New South Wales (Crimes Act 1900 s 189A(1)). The maximum penalty for each of those offences, at the relevant time, was imprisonment for 10 years. The applicant was sentenced by Backhouse DCJ on 8 August 2003 in respect of those offences.
When sentencing the applicant as to count 3 her Honour took into account, pursuant to the Crimes (Sentencing Procedure) Act 1999 s 33, 9 additional offences, comprising 3…

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 Strbik

Details

AGLC: R v Strbik [2004] NSWCCA 212
Case: [2004] NSWCCA 212
Decision Date: 8 July 2004

CaseChat Overview and Summary

The appeal before the court involved the respondent, Strbik, who was convicted and sentenced for his involvement in the car rebirthing process, which is the practice of disassembling a stolen car and reassembling it with stolen parts to create a new vehicle. The appeal was heard by the Full Court of the Supreme Court of South Australia, which had jurisdiction over the matter under the Constitution Act 1934 (SA). The central issue before the court was whether the sentence imposed upon the respondent was appropriate and whether the non-parole period should be reduced.

The court considered several factors in determining the appropriate sentence. These factors included the nature and circumstances of the offence, the culpability of the offender, and the principles of totality and proportionality. The court also took into account the need for deterrence and denunciation, as well as the rehabilitation of the offender. In assessing the severity of the sentence, the court compared the sentence imposed on the respondent with those given in similar cases. The court found that the sentence was not manifestly excessive and that the non-parole period should not be reduced.

The court acknowledged the seriousness of the offence and the need to protect the community, but also recognised the respondent's cooperation with the police and his expressions of remorse. The court held that the sentence imposed was appropriate and that the principles of totality and proportionality had been properly considered. The appeal was therefore dismissed.

The court did not make any orders altering the sentence imposed on the respondent. The Full Court affirmed the decision of the primary judge and upheld the sentence as just and appropriate.

Orders