Stehbens v The King - [2025] SASCA 16

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
STEHBENS v THE KING
[2025] SASCA 16
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
20 February 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY AND QUASI-CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Following a trial without a jury, the appellant was found guilty of two counts of aggravated robbery. Prior to being sentenced, the appellant spent various periods of time on remand, both in prison and on home detention bail.
A total head sentence of six years’ imprisonment was imposed in respect of both offences. This was reduced by 11 months and 20 days, for time served in custody, to five years and 11 days’ imprisonment. Following this deduction from the total head sentence, a non-parole period of two years, nine months and six days was fixed.
The appellant appeals on two grounds: namely, the sentencing Judge failed to properly account for time spent in custody when fixing the non-parole period; and failed to provide any explanation for not doing so.
HELD by the Court, granting permission to appeal, but dismissing the appeal:
In the absence of explicit reference by the sentencing Judge to any reduction of the non-parole period for time served, specific error has been established. However, having regard to the circumstances of the offending and the personal circumstances of the appellant, as well as the time served in custody, this Court would not impose a lesser sentence.
As a matter of sentencing practice, when reducing a sentence for time served in custody, the preferable approach is to fix both the head sentence and the non-parole period, and then reduce both for time spent in custody.
Criminal Law Consolidation Act 1935 (SA) s 137(1); Sentencing Act 2017 (SA) s 44(2), referred to.
R v Tsonis (2018) 131 SASR 416; Ribbon v The Queen [2022] SASCA 15, discussed.
Owens v The King [2024] SASCA 65; Burdon v The King [2023] SASCA 71; Kentwell v The Queen (2014) 252 CLR 601, considered.

STEHBENS v THE KING
[2025] SASCA 16
Court of Appeal – Criminal: Lovell, Bleby and David JJA

THE COURT: This is an appeal against sentence. On 15 December 2023, following a trial without a jury, the appellant was found guilty of two counts of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for each offence is life imprisonment.
On 29 April 2024, the sentencing Judge imposed a sentence of five years’ imprisonment for each offence and ordered that four years of the sentence for the second offence be served concurrently with the sentence for the first offence. This…

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 Stehbens v The King

Details

AGLC: Stehbens v The King [2025] SASCA 16
Case: [2025] SASCA 16
Decision Date: 20 February 2025

CaseChat Overview and Summary

Stehbens appealed against a sentence imposed by the District Court of South Australia. The appellant had pleaded guilty to a charge of aggravated assault occasioning bodily harm. The sentencing judge imposed a term of imprisonment and fixed a non-parole period. The appeal concerned the appropriateness of the sentence, specifically the length of the imprisonment and the non-parole period.

The central legal issues before the Court of Appeal were whether the sentencing judge erred in principle when determining the head sentence and the non-parole period, and whether the sentence was manifestly excessive. The court was required to consider the relevant sentencing principles, including the gravity of the offence, the appellant's personal circumstances, and the need for deterrence and punishment. A key aspect of the appeal involved the weight to be given to the time the appellant had spent in custody and quasi-custody prior to sentencing.

The Court of Appeal acknowledged that sentencing involves a complex balancing exercise. It applied the principle that a sentence must reflect the objective seriousness of the offence and the subjective culpability of the offender. The court reviewed the evidence presented at the sentencing hearing and considered the submissions of both the appellant and the Crown. It affirmed that time spent in custody or quasi-custody prior to sentencing is a relevant factor that must be taken into account when determining the appropriate head sentence and non-parole period, as it represents a deprivation of liberty that should not be entirely disregarded. The court found that the sentencing judge had properly considered these factors.

The appeal was dismissed.

Orders