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Stevens v R

Stevens v R

Case [2009] NSWCCA 260 28 October 2009

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New South Wales
Court of Criminal Appeal

CITATION: Stevens v R [2009] NSWCCA 260

HEARING DATE(S): 14 September 2009

JUDGMENT DATE:
28 October 2009

JUDGMENT OF: Spigelman CJ at 1; McClellan CJatCL at 9; Grove J at 87

DECISION: 1. Grant leave to appeal.
2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal - offences of dishonesty - sentence appeal - appeal dismissed

LEGISLATION CITED: Crimes Act 1900
Crimes Act 1914 (Cth)
Crimes Amendment (Fraud and Forgery) Bill 2009
Crimes (Sentencing Procedure) Act 1999
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth)

CATEGORY: Principal judgment

CASES CITED: Gaffney v R [2009] NSWCCA 160
JM v R [2008] NSWCCA 254
Markarian v R [2005] HCA 25; (2005) 215 ALR 213
Pearce v The Queen (1998) 194 CLR 610
R v Chan [2000] NSWCCA 345
R v Clinch (1994) 72 A Crim R 301
R v Dinsdale (2000) 202 CLR 321
R v Hawker [2001] NSWCCA 148
R v JRD [2007] NSWCCA 55
R v Slater [2001] NSWCCA 65

TEXTS CITED: Model Criminal Law Officers Committee Final report: Identity Crime Canberra, March 2008

PARTIES: Gary John Stevens (applicant)
The Crown

FILE NUMBER(S): CCA 2007/16001

COUNSEL: M C Ramage QC (Applicant)
S Dowling (Crown)

SOLICITORS: Jeffreys & Associates (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0976
07/11/0785

LOWER COURT JUDICIAL OFFICER: McGuire ADCJ

LOWER COURT DATE OF DECISION: 25 February 2008

2007/16001

SPIGELMAN CJ
McCLELLAN CJ at CL
GROVE J
WEDNESDAY 28 OCTOBER 2009

STEVENS, Gary John v R

Judgment

1 SPIGELMAN CJ: I agree with McClellan CJ at CL. I wish to specifically express my agreement with his Honour’s observations on the significance of general deterrence for identity crimes both in terms of identity theft, and in terms of the use of a fabricated or manipulated identity.

2 Past sentencing practices with respect to the offence of obtaining a benefit by deception, contrary to s 178BA of the Crimes Act 1900, must be treated with some care in this regard. There are a number of features of identity crimes which involve aggravated effects on victims and the community generally when compared with other forms of obtaining benefit by deception. These will be recognised, not least by increased maximum penalties, when the Crimes Amendment (Fraud and Forgery) Bill 2009 comes into force. That Bill is designed to harmonise New South Wales law with the national model scheme as proposed by Model Criminal Code Officers Committee of the Standing Committee of Attorneys General (MCLOC).

3 Identity crime has attained that degree of prevalence to which criminal sentencing has always responded. The MCLOC Report identified a number of reasons why the incidence, extent and cost of identity crime has increased and is likely to continue to expand.

4 The Report highlighted the following factors:

“The rise in high speed information flows.

Globalisation.

The increased use of remote communications to transact at a distance rather than traditional face-to-face interactions.

The ease with which documents can be…

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 Stevens v R

Details

AGLC: Stevens v R [2009] NSWCCA 260
Case: [2009] NSWCCA 260
Decision Date: 28 October 2009

CaseChat Overview and Summary

Stevens was convicted of multiple counts of dishonestly obtaining financial benefits by deception. The case was appealed to the court of appeal on the grounds of the sentence imposed. The appellant contended that the primary judge misapplied the principles of sentencing and that the sentence was manifestly excessive. The appeal was heard by a full bench of the court.

The legal issues that the court was required to consider included whether the primary judge had erred in the application of the sentencing principles, particularly in relation to the seriousness of the offending and the appellant's culpability. The court also needed to determine whether the sentence imposed was manifestly excessive and whether the appeal should be allowed. The appeal hinged on the assessment of the appellant's culpability and the proportionality of the sentence.

The court found that the primary judge had not erred in the application of the sentencing principles. It was held that the seriousness of the offending was high, given the appellant's sustained and systematic dishonesty over a period of time. The court also found that the appellant's culpability was significant, as he had deliberately and repeatedly deceived the victims. The court held that the sentence imposed was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the offending. The appeal was dismissed.

The court did not make any orders in relation to the appeal.

Orders