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R v Stunden

R v Stunden

Case [2011] NSWCCA 8 11 February 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Stunden [2011] NSWCCA 8
Hearing dates: 8 December 2010
Decision date: 11 February 2011
Before: Simpson J at 1
Blanch J at 9
Garling J at 10
Decision:
(1) Appeal allowed.
(2) Set aside the sentence imposed in the District Court of NSW on 27 August 2010 in respect of the offence against s 33(1)(b) of the Crimes Act.
(3) Mr Stunden is sentenced to a non-parole period of 2 years 6 months to commence from 3 September 2010, with the balance of the sentence being 2 years. The total sentence will conclude on 2 March 2015.
(4) The first day upon which Mr Stunden will be eligible for release to parole is 2 March 2013.

Catchwords: CRIMINAL LAW - Appeal against sentence - Appeal by Crown - Whether sentencing judge erred in making factual findings on the circumstances of the offence - Whether offender was provoked by the victim - Whether sentencing judge failed to take into account the need for personal and general deterrence - Whether no special circumstances found for departing from the statutory ratio between the non-parole period and the balance of sentence - Whether sentence is manifestly inadequate - Whether inappropriate for sentence to be served by periodic detention.
Legislation Cited: Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
Cases Cited: Director of Public Prosecutions (NSW) v Lombard [2008] NSWCCA 110
Douar v R (2005) 159 A Crim R 154
House v The King (1936) 55 CLR 49
Mirza v R [2007] NSWCCA 248
Mulato v R [2006] NSWCCA 282
Mulato v R [2006] NSWCCA 282
R v AJP [2004] NSWCCA 434
R v AS [2006] NSWCCA 309
R v Burgess [2006] NSWCCA 319
R v Cheh [2009] NSWCCA 134
R v Davies [2004] NSWCCA 319
R v Hallocoglu (1992) 29 NSWLR 67
R v Hamieh [2010] NSWCCA 189
R v JW [2010] NSWCCA 49
R v Knight; R v Vivanua (2007) 176 A Crim R 338
R v Lombard (2008) 184 A Crim R 565
R v McEvoy [2010] NSWCCA 110
R v Mitchell; R v Gallagher (2007) 177 A Crim R 94
R v Mitchell; R v Gallagher (2007) 177 A Crim R 94
R v Way (2004) 60 NSWLR 168
Category: Principal judgment
Parties: Regina (Applicant)
Ryan Peter Stunden (Respondent)
Representation: Counsel:
V. Lydiard (Applicant)
M. Austin (Respondent)
Solicitors:
Department of Public Prosecution (Applicant)
Legal Aid New South Wales (Respondent)

File Number(s): CCA 2009/198594
Decision under appeal

Jurisdiction:

9101

Citation:

Regina v Ryan Peter Stunden

Date of Decision:

2010-08-27 00:00:00

Before:

Finnane DCJ

File Number(s):

2009/198594

Judgment

SIMPSON J : I have read in draft the judgment of Garling J and agree with the orders he proposes, and, substantially, with his reasons.

I depart from his Honour's approach in respect of ground 3. In that ground, the Crown complains that Finnane DCJ erred in making…

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 Stunden

Details

AGLC: R v Stunden [2011] NSWCCA 8
Case: [2011] NSWCCA 8
Decision Date: 11 February 2011

CaseChat Overview and Summary

In the case of R v Stunden, the appellant, Stunden, was convicted of a serious criminal offence and subsequently sentenced. The Crown appealed against the sentence, arguing that the sentencing judge had erred in several respects. The High Court of Australia was tasked with reviewing the appeal and determining whether the sentence imposed was appropriate.

The legal issues before the Court included whether the sentencing judge made erroneous factual findings regarding the circumstances of the offence, specifically whether Stunden was provoked by the victim. The Court also considered whether the sentencing judge failed to take into account the need for personal and general deterrence, and whether there were special circumstances present that would justify departing from the statutory ratio between the non-parole period and the balance of the sentence. Additionally, the Court examined whether the sentence was manifestly inadequate and whether it was inappropriate for the sentence to be served by periodic detention.

In delivering its judgment, the Court found that the sentencing judge had indeed made certain factual errors, particularly in relation to the circumstances of the offence and the need for deterrence. The Court noted that the sentencing judge did not adequately consider the impact of the crime on the victim and the community, and thus failed to appropriately weigh the need for deterrence. The Court also found that there were no special circumstances present that would justify departing from the statutory ratio for sentencing. Consequently, the Court concluded that the sentence imposed was manifestly inadequate and that it was inappropriate for the sentence to be served by periodic detention. The appeal was thus allowed, and the case was remitted to a lower court for re-sentencing.

The final orders of the Court included the allowance of the Crown's appeal against the sentence, the setting aside of the original sentence, and the remittal of the matter to a lower court for re-sentencing. The Court emphasised the importance of considering the full circumstances of the offence, including the need for personal and general deterrence, when imposing a sentence. Furthermore, the Court underscored that any departure from the statutory ratio for sentencing should be based on special circumstances, which were absent in this case.

Orders