Stephen v The Queen - [2021] ACTCA 42

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Stephen v The Queen
Citation:	[2021] ACTCA 42
Hearing Date:	10 November 2021
DecisionDate:	17 December 2021
Before:	Elkaim ACJ, Loukas-Karlsson, and Banks-Smith JJ
Decision:	See [24]
Catchwords:	CRIMINAL LAW – APPEAL – JURISDICTION – PRACTICE AND PROCEDURE – appeal against sentence – specific error concerning criminal history – error conceded by prosecution – appeal allowed – re-sentence
Cases Cited:	Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284 House v The King (1936) 55 CLR 499 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lehn v The Queen [2016] NSWCCA 255; 93 NSWLR 205 R v Stephen [2020] ACTSC 283 Thammavongsa v The Queen [2015] NSWCCA 107; 251 A Crim R 342
Parties:	Joshua Robert Stephen (Appellant) The Queen (Respondent)
Representation:	Counsel J Cooper ( Appellant) R Christensen SC with N Deakes ( Respondent)
Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 41 of 2020
Decision under appeal:	Court: ACT Supreme Court Before: Mossop J Date of Decision: 15 October 2020 Case Title: R v Stephen Citation: [2020] ACTSC 283 Court File Numbers: SCC 1 of 2020 SCC 2 of 2020

THE COURT:

On 15 October 2020, Justice Mossop (the primary judge) sentenced the appellant to a total term of imprisonment of 8 years and 2 months, with a non-parole period of 5 years and 4 months (R v Stephen [2020] ACTSC 283).

The sentencing arose from 6 offences. The most serious offence, and the one attracting the largest sentence, was recklessly inflicting grievous bodily harm, for which a sentence of 5 years and 6 months was imposed. The next most serious was aggravated burglary which attracted a sentence of 3 years and 10 months.

The remaining sentences included attempting to take a motor vehicle (15 months), possessing a prohibited firearm (10 months), driving a motor vehicle without consent (20 months) and driving while disqualified (5 months).

Each sentence was reduced by 15 per cent to reflect a discount arising from the guilty pleas.

The total term was derived through a mixture of accumulation and concurrency. It was accepted that all of the offences arose from a single incident that occurred in the early hours of 30 June 2019 and which is described in the primary judgement from [5].

Ultimately, the non-parole period was approximately 65 per cent of the overall sentence.

Error

There were two grounds of appeal regarding the sentence:

· First, that there was an error concerning the appellant’s criminal record.
· Second, that the overall sentence was manifestly excessive.

It is important to note that the second complaint is only a product of the first. In other words, the sentence was manifestly excessive because it was, if only in part, derived from the first complaint.

The appellant has a significant criminal record which the primary judge appropriately took into account. However, the primary judge…

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 Stephen v The Queen

Details

AGLC: Stephen v The Queen [2021] ACTCA 42
Case: [2021] ACTCA 42
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an appeal by Joshua Robert Stephen (the appellant) against a sentence imposed by the ACT Supreme Court. The original sentence, handed down by Justice Mossop on 15 October 2020, comprised a total term of imprisonment of 8 years and 2 months, with a non-parole period of 5 years and 4 months, for six offences including recklessly inflicting grievous bodily harm and aggravated burglary. The appeal was brought on two grounds: an error concerning the appellant's criminal record and that the overall sentence was manifestly excessive, with the latter ground being contingent on the success of the former.

The central legal issue before the Court of Appeal was whether an error in the primary judge's consideration of the appellant's criminal history, specifically the inclusion of a non-existent conviction for intentionally causing grievous bodily harm, warranted a re-sentencing. The Court was required to determine the appropriate course of action once such an error, falling within the principles established in *House v The King*, was identified. This involved exercising its own discretion to determine a new sentence that was appropriate for the offender and the offences, considering the purposes of sentencing and relevant legal principles.

The Court of Appeal found that the prosecution conceded the error regarding the criminal history and correctly acknowledged that this necessitated a re-sentencing exercise. Applying the principles from *Kentwell v The Queen*, the Court stated that it must exercise its independent discretion afresh. The Court accepted the appellant's submissions that the re-sentencing should reflect a lesser sentence for the recklessly inflicting grievous bodily harm offence, a greater degree of concurrency between that offence and aggravated burglary, and an adjustment to the non-parole period ratio to account for enhanced rehabilitation prospects, given the corrected criminal record.

Consequently, the appeal was allowed, and the original sentence was set aside. The Court resentenced the appellant to a reduced total term of imprisonment, with the non-parole period adjusted to be 60 per cent of the overall sentence. This resulted in the appellant becoming eligible for parole seven months earlier than under the original sentence. The Court then detailed the specific sentences for each offence and their respective commencement and end dates.

Orders