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Stein v The King

Stein v The King

Case [2023] NSWCCA 324 15 December 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Stein v R [2023] NSWCCA 324
Hearing dates: 1 November 2023
Date of orders: 15 December 2023
Decision date: 15 December 2023
Before: Wilson J at [1]
Fagan J at [103]
Sweeney J at [104]
Decision:
1. Grant the applicant leave to appeal against the sentence imposed upon him on 13 May 2022.
2. Dismiss the appeal.

Catchwords:
CRIMINAL LAW – appeal – appeal against sentence – sexual intercourse without consent – whether sentencing judge erred in assessing objective seriousness of offences – whether sentencing judge erred in assessing applicant’s disability – whether sentencing judge erred by having insufficient regard to applicant’s history of early childhood deprivation – whether sentencing judge erred in assessing applicant’s prospects of rehabilitation and likelihood of reoffending – whether sentencing judge erred by attributing too much weight to harm to the victim – whether sentence manifestly excessive – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), s 61I
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 21A(2), 44(2), 53A
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Evidence Act 1995 (NSW), s 66

Cases Cited:
Alseedi v R [2009] NSWCCA 185
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v R [2018] NSWCCA 2
Lawrence v R [2023] NSWCCA 110
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Sigalla v R [2021] NSWCCA 22
Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247
WW v R [2023] NSWCCA 311

Category: Principal judgment
Parties: Jacob Stein (Applicant)
Rex (Respondent)
Representation:
Counsel:
M King (Applicant)
V Garrity (Respondent)
Solicitors:
Legal Aid Commission (NSW) (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/146090
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

13 May 2022

Before:

Baly SC DCJ

File Number(s):

2020/146090

JUDGMENT

WILSON J: On 11 March 2022 Jacob Stein, the applicant, was found guilty by a jury of two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW), after a trial held between 28 February and 11 March 2022. Such an offence carries a maximum sentence of 14 years imprisonment with a standard non-parole period of 7 years. On 13 May 2022 he was sentenced by her Honour Judge Baly SC to an aggregate sentence of 6 years imprisonment with a non-parole period (“NPP”) of 3 years and 7 months, a sentence against which he now seeks the leave of this Court to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). An extension of time in which to bring his application was also required. The Crown…

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 Stein v The King

Details

AGLC: Stein v The King [2023] NSWCCA 324
Case: [2023] NSWCCA 324
Decision Date: 15 December 2023

CaseChat Overview and Summary

In the case of Stein v The King, the applicant, Stein, appealed against his sentence for engaging in sexual intercourse without the consent of the victim. The appeal was heard in the High Court of Australia. The central issues for determination were whether the sentencing judge made errors in assessing the objective seriousness of the offences, the applicant’s disability, the history of early childhood deprivation, the prospects of rehabilitation and the likelihood of reoffending, and whether the judge attributed too much weight to the harm suffered by the victim. Additionally, the court considered whether the sentence was manifestly excessive.

The court thoroughly examined the sentencing judge's assessment of the objective seriousness of the offences, the impact of the applicant’s disability, and the relevance of the applicant’s history of early childhood deprivation. It evaluated whether these factors were appropriately weighed in the sentencing process. Furthermore, the court scrutinised the sentencing judge's consideration of the applicant's prospects of rehabilitation and the likelihood of reoffending, alongside the emphasis placed on the harm to the victim. After detailed analysis, the court concluded that the sentencing judge did not err in the assessment of these factors or in the overall sentence imposed.

Having considered the evidence and arguments presented, the court determined that the sentencing judge did not err in any of the assessed aspects of the case. The court found that the sentence was appropriate and not manifestly excessive. Consequently, the appeal was dismissed, upholding the original sentence imposed by the lower court.

Orders