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Stepanyan v The Queen

Stepanyan v The Queen

Case [2014] NSWCCA 7 20 February 2014

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Stepanyan v R [2014] NSWCCA 7
Hearing dates: 11 February 2014
Decision date: 20 February 2014
Before: Hoeben CJ at CL at [1]
Schmidt J at [2]
Barr AJ at [63]
Decision:
1. Leave to appeal allowed.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - leave to appeal against sentence - robbery whilst armed with dangerous weapon - whether error in finding the offence was aggravated by security guard - co-offender shot - whether applicant had justifiable sense of grievance given the degree of disparity - Form 1 offence taken into account - leave to appeal allowed - appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Dionys v R [2011] NSWCCA 272
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Henry (1999) 46 NSWLR 346
Mulato v R [2008] NSWCCA 282
R v Wright [2009] NSWCCA 3
Category: Principal judgment
Parties: Dimitri Stepanyan (Applicant)
Regina (Crown)
Representation: Counsel:
Mr D Dalton SC (Applicant)
Mr H Wilson Sc (Crown)
Solicitors:
Benjamin & Leonardo Criminal Defence Lawyers (Applicant)
S Kavanagh, Solicitor for Public Prosecutions

File Number(s): 2009/226281
Publication restriction: None
Decision under appeal

Date of Decision:

2012-05-17 00:00:00

Before:

Lakatos DCJ

File Number(s):

2009/226281

Judgment

HOEBEN CJ AT CL: I agree with Schmidt J.

SCHMIDT J: The applicant seeks leave to appeal a sentence of 10 years' imprisonment with a non-parole period of 7 years imposed upon him by Lakatos DCJ, after he received a 10% discount for a plea of guilty to a charge of robbery whilst armed with a dangerous weapon, the maximum penalty for which was 25 years (s 97(2) of the Crimes Act 1900 (NSW)). The sentence was imposed on 17 May 2012, the applicant having entered the plea on 16 May 2012 on re-arraignment following an aborted trial conducted in March and April 2012. In imposing that sentence his Honour also took into account an offence of discharge firearm in a public place, which carries a maximum penalty of 10 years (s 33 of the Crimes Act), on a Form 1.

Two grounds of appeal were advanced:

1. His Honour erred in finding that the offence was aggravated by the security guard, a co-offender, being shot.

2. The applicant had a justifiable sense of grievance given the degree of disparity in the starting point adopted by his Honour, in relative terms to that adopted with the co-offender Balian.

The sentencing judgment

Lakatos DCJ noted that the offence to which the applicant had initially pleaded not guilty was that on 20 March 2009 he had robbed Scott Lee of $25,312 whilst armed with a dangerous weapon. His co-offender, Garen Balian, had been sentenced by Frearson DCJ to a…

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 Stepanyan v The Queen

Details

AGLC: Stepanyan v The Queen [2014] NSWCCA 7
Case: [2014] NSWCCA 7
Decision Date: 20 February 2014

CaseChat Overview and Summary

The case of Stepanyan v The Queen involved the appellant who was convicted of robbery while armed with a dangerous weapon. The appellant challenged the severity of his sentence, arguing that the trial judge erred in finding that the offence was aggravated by the presence of a security guard and by the fact that his co-offender had shot someone. The appellant also contended that the degree of disparity between his sentence and that of his co-offender, who received a lesser sentence, was so great as to give him a justifiable sense of grievance. Furthermore, the appellant claimed that the trial judge erred in taking into account a Form 1 offence.

The court had to determine whether the trial judge's findings about the aggravating factors and the disparity in sentencing were correct. The court also needed to assess whether the consideration of the Form 1 offence was appropriate. In reviewing the sentence, the court had to consider the principles of sentencing, including the need for deterrence, retribution, and proportionality.

The court found that the trial judge had not erred in finding that the offence was aggravated by the presence of the security guard and the shooting by the co-offender. The court also held that the disparity in sentencing between the appellant and his co-offender was not sufficient to constitute a justifiable sense of grievance. However, the court found that the trial judge had erred in taking into account the Form 1 offence. Despite this error, the court concluded that it did not affect the overall outcome of the sentencing. The court allowed the leave to appeal but dismissed the appeal. The appellant's sentence was upheld.

Orders