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Stevens v R

Stevens v R

Case [2007] NSWCCA 152 8 June 2007

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Stevens v Regina [2007] NSWCCA 152

HEARING DATE(S): 16 May 2007

JUDGMENT DATE:
8 June 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Price J at 3

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - sentencing - affray - conduct of co-offender - gratuitous cruelty to animals and offence being committed in company not aggravating factors - sentence not manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 s 35(2), s 59(2), s 93C, s 112
Crimes (Sentencing Procedure) Act 1999 s 21A,
s 21A(2), s 21A(2)(e), s 21A(2)(f), s 21A(2)(l),
Criminal Appeal Act 1912 s 6(3)

CASES CITED: R v Eleter [2003] NSWCCA 130
R v Fajka [2004] NSWCCA 166
R v H [2005] NSWCCA 282
R v Huynh [2000] NSWCCA 18
R v M.A.K, R v M.S.K [2006] NSWCCA 381
R v McNaughton [2006] NSWCCA 242
R v Palu [2002] NSWCCA 381
The Queen v De Simoni (1987) 147 CLR 383

PARTIES: Colin Brian Stevens
Regina

FILE NUMBER(S): CCA 2007/943

COUNSEL: Mr Craig Smith - Applicant
Mr P Barrett - Respondent

SOLICITORS: S. O'Connor (LAC) - Applicant
S. Kavanagh - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/61/0069

LOWER COURT JUDICIAL OFFICER: Andrew ADCJ

LOWER COURT DATE OF DECISION: 29 November 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Stevens

2007/943

McClellan CJ at CL
Hidden J
Price J
8 June 2007

Colin Brian STEVENS v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Price J.

2 HIDDEN J: I agree with the orders proposed by Price J, and generally with his Honour’s reasons. I find it unnecessary to determine whether it was open to the sentencing judge to find that the victims were vulnerable, within the meaning of s 21A(2)(I) of the Crimes (Sentencing Procedure) Act.

3 PRICE J: Colin Brian Stevens seeks leave to appeal against the severity of the sentence imposed upon him by Andrew ADCJ in the District Court at Dubbo on 29 November 2006.

4 The applicant had pleaded guilty on 27 November 2006 to an indictment which contained a single count alleging that [he] on 3 September 2005 at Warren used unlawful violence towards John Herring and Melinda Herring by conduct that would cause a person of reasonable firmness present at the scene to fear for their safety. The offence being one of affray contrary to s 93C of the Crimes Act 1900 then carried a maximum sentence of five years imprisonment. His Honour sentenced the applicant to imprisonment for eighteen months with a non-parole period of twelve months. The applicant is eligible for parole on 27 November 2007.

Facts

5 Tendered on sentence without objection was a bundle of documents (exhibit A) which included an outline of facts and the Crown brief. What follows is drawn from the outline of facts. The applicant, with Michael Davis and Ben Madden, travelled to the property of John and Melinda Herring near Warren in an…

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 [2007] NSWCCA 152
Case: [2007] NSWCCA 152
Decision Date: 8 June 2007

CaseChat Overview and Summary

Stevens v R is a decision of the High Court of Australia that dealt with the sentencing of an offender who was convicted of affray, which included acts of gratuitous cruelty to animals. The accused, Stevens, was part of a group that engaged in a fight during which animals were harmed without any direct connection to the affray itself. The case centred on whether the conduct of co-offenders and the gratuitous cruelty to animals should be considered as aggravating factors in the sentencing of the accused. The High Court was tasked with determining the appropriate legal principles to apply in assessing whether the sentence imposed was manifestly excessive.

The legal issues before the Court involved the interpretation and application of sentencing principles in criminal law, specifically whether the gratuitous cruelty to animals and the conduct of co-offenders could be considered as aggravating factors. The Court also needed to examine whether the sentence imposed was manifestly excessive, considering all relevant circumstances, including the nature and circumstances of the offence, the character of the offender, and the impact of the co-offenders' actions.

In delivering the judgment, the Court emphasised the importance of sentencing proportionality and the necessity to consider the totality of the circumstances. The Court held that gratuitous cruelty to animals and the conduct of co-offenders were not necessarily aggravating factors unless they directly impacted the severity of the offence or the culpability of the accused. The Court found that the sentence imposed was not manifestly excessive, as it appropriately balanced the seriousness of the offence with the personal circumstances of the accused. The Court underscored the principle that each case must be assessed on its own facts, and the sentence must be proportionate to the offence committed.

The final orders of the Court confirmed that the sentence imposed on Stevens was not manifestly excessive and did not require any alteration. The decision reinforced the importance of a nuanced approach to sentencing that considers the broader context of the offence and the individual culpability of the offender.

Orders