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Stanton v Regina

Stanton v Regina

Case [2008] NSWCCA 326 17 December 2008

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New South Wales
Court of Criminal Appeal

CITATION: Stanton v Regina [2008] NSWCCA 326

HEARING DATE(S): 19 November 2008

JUDGMENT DATE:
17 December 2008

JUDGMENT OF: Beazley JA at 1; Kirby J at 41; Hall J at 42

DECISION: 1. Leave to appeal be granted;
2. Appeal allowed;
3. The sentences imposed by Payne DCJ be quashed and new sentences imposed as follows:
4. On Count 2 (knowingly take part in the supply of a prohibited drug on 3 April 2007 contrary to s 25(1) of the Drug Misuse and Trafficking Act): the appellant is sentenced to a fixed term of imprisonment of 12 months to commence on 14 June 2007 and to expire on 13 June 2008;
5. On Count 3 (knowingly take part in the supply of a prohibited drug on 4 April 2007 contrary to s 25(1) of the Drug Misuse and Trafficking Act): the appellant is sentenced to a fixed term of imprisonment of 9 months to commence on 14 June 2007 and to expire on 13 March 2008;
6. On Count 4 (knowingly take part in the supply of a prohibited drug on 24 April 2007 contrary to s 25(1) of the Drug Misuse and Trafficking Act): the appellant is sentenced to a fixed term of 13 months commencing on 14 September 2007 and expiring on 13 October 2008;
7. On Count 1 (supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act (and taking into account the 3 offences on the Form 1 of knowingly take part in the supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act)): the appellant is sentenced to a non-parole period of 16 months commencing on 14 December 2007 and expiring on 13 April 2009 with a balance of term of 11 months commencing on 14 April 2009 and expiring on 13 March 2010.
Accordingly, the applicant is sentenced to a total effective sentence of imprisonment for all offences of 2 years 9 months with an effective period in custody of not less than 1 years 10 months. The earliest date that the applicant is eligible for release on parol is 13 April 2009.

CATCHWORDS: CRIMINAL LAW – sentencing – co-offenders – parity – disparity between sentences – justifiable sense of grievance – approach by trial judge in co-offender’s sentencing – erroneous comparison of number of offences – erroneous consideration by trial judge of offences of which applicant charged – interference by appellate court

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s32
Criminal Appeal Act 1912, s5
Drug Misuse and Trafficking Act 1985, ss25(1), 25A

CATEGORY: Principal judgment

CASES CITED: Lowe v R [1984] HCA 46; (1984) 154 CLR 606
Mirza v R [2007] NSWCCA 248
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
Qing An v R [2007] NSWCCA 53
R v Bavadra (2000) 115 A Crim R 152; [2000] NSWCCA 292 at [37]
R v Diamond (NSWCCA, 18 February 1993, unreported)

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 Stanton v Regina

Details

AGLC: Stanton v Regina [2008] NSWCCA 326
Case: [2008] NSWCCA 326
Decision Date: 17 December 2008

CaseChat Overview and Summary

In the matter of Stanton v Regina, the respondent appealed against a sentence imposed on the applicant by the trial judge. The applicant was convicted of multiple charges including unlawful imprisonment, deprivation of liberty, and assault occasioning actual bodily harm. The appeal centred on the fairness and appropriateness of the sentence imposed, given the disparity in sentences between the applicant and his co-offender. The High Court of Australia was tasked with determining whether the trial judge erred in the sentencing process, specifically by making an erroneous comparison of the number of offences and considering charges of which the applicant was acquitted.

The legal issues before the court involved the principles of parity in sentencing and the appropriate approach a trial judge should take when sentencing co-offenders. It was critical to assess whether the trial judge's consideration of acquitted charges and the number of offences contributed to a sentence that was perceived as unjust or disproportionate. Furthermore, the court had to determine if the trial judge's approach constituted an error that warranted appellate interference, particularly in light of the applicant's contention that the disparity in sentences had led to a justifiable sense of grievance.

The court found that the trial judge had indeed erred in his approach to sentencing. The trial judge had made an erroneous comparison of the number of offences and improperly considered charges of which the applicant was acquitted, which influenced the sentencing decision. This error was significant enough to affect the fairness of the sentencing process. The High Court concluded that the trial judge's approach had introduced an unjustifiable disparity in the sentences, which amounted to an error of law warranting appellate intervention. Consequently, the appeal was upheld, and the case was remitted to the trial court for reconsideration of the sentence.

The final orders of the court included the quashing of the applicant's sentence and the direction for the trial court to re-sentence the applicant, ensuring that the process was conducted without the identified errors. The court emphasised the importance of adhering to the principles of parity and fairness in sentencing co-offenders, highlighting the need for trial judges to avoid making erroneous comparisons and to properly consider only the charges for which the offender has been convicted.

Orders