Application for leave to appeal is granted and the appeal is allowed. The sentence imposed is quashed and substituted by a sentence of 10 years and 6 months to date from 5 June 2002. The non-parole period is unchanged.
CATCHWORDS:
Criminal Law and Procedure - Sentencing - Section 16G of Crimes Act (Cth) - whether repeal should affect current sentencing range - relevance of absence of transitional provisions.
Commonwealth Director of Public Prosecutions - Crown Legal Aid Commission - Applicant
LOWER COURTJURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
02/11/0925
LOWER COURT JUDICIAL OFFICER :
Hock DCJ
60514/03
GROVE J HOWIE J NEWMAN AJ
FRIDAY 21 MAY 2004
REGINA v ALEXANDER STUDENIKIN
Judgment
1 GROVE J: I have had the advantage of reading the judgment of Howie J in draft form. I agree with his Honour’s reasons and the orders which he proposes. I deal with the argument signalled by the appellant in the supplementary submission filed on 3 May 2004 asserting that Hock DCJ “erred in the manner noted by the Court of Criminal Appeal in R v Speer” unreported NSWCCA 22 March 2004 (distributed under reference [2004] NSWSC 115).
2 Following the abolition of the capacity of a prisoner to receive or earn remissions from sentence in New South Wales pursuant to the Sentencing Act 1989, s 16G was introduced into the Crimes Act 1914 (Commonwealth). As, at that time, remissions were available in…
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.
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Details
AGLC
R v Studenikin [2004] NSWCCA 164
Case
[2004] NSWCCA 164
Decision Date
CaseChat Overview and Summary
In the case of R v Studenikin, the defendant, Studenikin, was convicted of an offence under the Crimes Act (Cth). The matter came before the court for sentencing, where the primary issue was whether the repeal of Section 16G of the Crimes Act (Cth) should influence the sentencing range applicable to the offence committed by Studenikin. The court had to consider the absence of transitional provisions in the context of the repeal and its impact on the sentencing process.
The legal issue before the court was whether the absence of transitional provisions in the legislation following the repeal of Section 16G should affect the sentencing range. Studenikin's legal team argued that the repeal should result in a reduced sentencing range, aligning with the current legislative framework. The prosecution, however, contended that the absence of transitional provisions meant that the sentencing should continue to be determined by the repealed provision.
The court deliberated on the effect of the repeal and the absence of transitional provisions on sentencing. It was noted that the absence of transitional provisions generally means that the law in force at the time of the offence should apply. However, the court considered the purpose of the repeal and the principles of justice in determining the appropriate sentencing range. Ultimately, the court decided that the repeal of Section 16G, despite the absence of transitional provisions, should influence the sentencing range. Consequently, the court applied the current sentencing provisions to the offence committed by Studenikin.
The court ordered that Studenikin be sentenced in accordance with the current legislative framework, reflecting the principles of justice and the purpose of the repealed provision. The final orders were made based on the new sentencing provisions, ensuring that the outcome was consistent with the updated legislative standards.