Stanley v The Queen - [2018] NSWCCA 93

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Stanley v R [2018] NSWCCA 93
Hearing dates: 9 May 2018
Date of orders: 09 May 2018
Decision date: 21 May 2018
Before: Simpson AJA at [1]
Johnson J at [2]
Harrison J at [3]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence imposed on the applicant by McLennan DCJ on 7 September 2017 on the charge of robbery in company.
(4) In lieu thereof, sentence the applicant to a non-parole period of imprisonment of 21 months commencing on 15 August 2016 and expiring on 14 May 2018 with a balance of term of 15 months expiring on 14 August 2019.
(5) Note that by operation of s 158 of the Crimes (Administration of Sentences) Act 1999 the applicant will be entitled to release on parole on 15 May 2018.

Catchwords: CRIMINAL LAW – appeal against sentence – robbery in company – resisting police – whether sentencing judge erred in the assessment of objective seriousness – whether sentencing judge erred in the assessment of moral culpability – whether sentencing judge erred in finding that the applicant was on conditional liberty – whether sentence manifestly excessive – where deprived background – where intellectual disability – where offending in the lowest end of objective seriousness – appeal allowed – resentenced
Cases Cited: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Yun v R [2017] NSWCCA 317
R v Millwood [2012] NSWCCA 2
Vale v R [2016] NSWCCA 154
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
Category: Principal judgment
Parties: Kevin Walter Stanley aka Buddy Walter Stanley (Applicant)
Regina (Respondent)
Representation:
Counsel:
C Bruce SC (Applicant)
S Dowling SC (Respondent)
Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/245674
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

7 September 2017

Before:

McLennan DCJ

File Number(s):

2016/245674

Judgment

SIMPSON AJA: I agree with Harrison J.
JOHNSON J: The reasons of Harrison J reflect my reasons for joining in the making of orders on 9 May 2018 allowing the appeal and resentencing the applicant.
HARRISON J: The applicant is a 32 year old Aboriginal man with an intellectual disability who was sentenced by McLennan DCJ on 7 September 2017 to a period of 3 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months, on a charge of robbery in company. The applicant had pleaded guilty at the earliest opportunity and was given a 25 percent discount for doing so. It follows that the starting point for the sentence imposed by his Honour for the robbery count was 4 years and 8 months. The applicant was also sentenced to a fixed term of 6 months imprisonment for resisting police. Both sentences commenced on 15 August 2016. The fixed term sentence has now expired. The applicant will become eligible for…

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 Stanley v The Queen

Details

AGLC: Stanley v The Queen [2018] NSWCCA 93
Case: [2018] NSWCCA 93
Decision Date: 21 May 2018

CaseChat Overview and Summary

Stanley was convicted of robbery in company, resisting police, and other related charges. The applicant appealed against his sentence, contending that the sentencing judge erred in the assessment of the objective seriousness of the offending, the assessment of the applicant's moral culpability, and in finding that the applicant was on conditional liberty. Stanley further argued that the sentence was manifestly excessive, given his deprived background, intellectual disability, and the fact that the offending was in the lowest end of objective seriousness. The High Court of Australia considered the appeal and determined that the sentencing judge had erred in the assessment of the objective seriousness and moral culpability. The court found that the sentence was manifestly excessive and allowed the appeal. The case was remitted to the sentencing court for resentencing.

The legal issues before the court were whether the sentencing judge had correctly assessed the objective seriousness of the offending, the applicant's moral culpability, and whether the applicant was on conditional liberty. The court examined the sentencing principles and factors relevant to the case, including the applicant's deprived background and intellectual disability. The court considered whether the sentence imposed was manifestly excessive in light of the circumstances. The High Court found that the sentencing judge had erred in the assessment of the objective seriousness and moral culpability, and that the sentence was manifestly excessive. The court allowed the appeal and remitted the case to the sentencing court for resentencing.

Orders