R v Studenikin

Case [2004] NSWCCA 164


Reported Decision:

60 NSWLR 1
147 A Crim R 1

New South Wales


Court of Criminal Appeal

CITATION: R v Studenikin [2004] NSWCCA 164
HEARING DATE(S): 07/05/2004
JUDGMENT DATE:
21 May 2004
JUDGMENT OF: Grove J at 1; Howie J at 24; Newman AJ at 82
DECISION: 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.
LEGISLATION CITED: Sentencing Act 1989
Crimes Act 1914 (Cth) - s 16A, 16B, 16G, 19AG
Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth) - s 4
Acts Interpretation Act 1901 - s 8
Customs Act 1901 - s 233B(1)(b)
Migration Act 1958 - 234(1)(b)
CASES CITED: R v Speer (unreported, NSWCCA, 22 March 2004), [2004] NSWSC 115
R v Paull (1990) 49 A Crim R 142, (1990) 20 NSWLR 427
R v El Karhani (1990) 51 A Crim R 123
R v O'Brien (1984) 2 NSWLR 449
R v Maclay (1990) 19 NSWLR 112
R v Schofield [2003] NSWCCA 3
Radenkovic v The Queen (1990) 170 CLR 623
Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370
R v Chan (2002) 128 A Crim R 119
R v Budiman (1998 102 A Crim R 411
R v Bradley (1997) 137 FLR 314
R v O'Connor [2002] NSWCCA 156
R v Li [1998] 1 VR 637
R v Wong and Leung (2000) 48 NSWLR 340
Wong and Leung v The Queen (2001) 207 CLR 584
Beard v The Queen [2003] WASCA 362
R v MJR (2002) 54 NSWLR 368

PARTIES :

Regina v Alexander Studenikin
FILE NUMBER(S): CCA 60514/03
COUNSEL: G. Farmer - Crown
A. Haesler - Applicant
SOLICITORS: 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…

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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.

Orders

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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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