Stephen v The Queen

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.