Stevens v Regina - [2008] NSWCCA 294

New South Wales
Court of Criminal Appeal

CITATION: STEVENS v REGINA [2008] NSWCCA 294

HEARING DATE(S): 04/06/08

JUDGMENT DATE:
9 December 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hidden J at 10

DECISION: Leave to appeal granted. By majority appeal dismissed

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - supply methylamphetamine, possess prohibited firearm - further offences on Form 1 - sentencing judge's approach to assessing significance of Form 1 matters - partly cumulative sentences - proportion of effective non-parole period to aggregate sentence

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Firearms Act 1996

CATEGORY: Principal judgment

CASES CITED: Schaal (unreported, NSWSC, 8 September 1989)
Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518, 56 NSWLR 146
Markarian v The Queen (2005) 228 CLR 357
R v Attard [2004] NSWCCA 376

PARTIES: Gary Noel Stevens (applicant)
Regina (respondent)

FILE NUMBER(S): CCA 2007/2965

COUNSEL: A Francis (applicant)
G Rowling (respondent)

SOLICITORS: S O'Connor (Legal Aid Commission)
S Kavanagh (solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/0278

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 26/04/07

2007/2965

McCLELLAN CJ at CL
HULME J
HIDDEN J
Tuesday 9 December 2008

Gary Noel STEVENS v REGINA

Judgment

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

2 HULME J: In this matter I have had the advantage of reading the reasons for judgment of Hidden J and am indebted to his Honour for the account of the facts and the circumstances of the Applicant’s offending.

3 However, I am unable to agree with what his Honour proposes as to the disposition of the appeal. In my view it should be dismissed.

4 I agree that the sentencing judge may have overlooked the fact that the accumulation of sentences resulted in a non-parole period that exceeded the 75% ratio referred to in s44 of the Crimes (Sentencing Procedure) Act and which was reflected in the individual sentences imposed. However, s6(3) of the Criminal Appeal Act requires this Court to dismiss an appeal unless persuaded that some other less severe sentence is warranted and should have been passed. I am not so satisfied. Indeed I am persuaded to the contrary.

5 Facts referred to by Hidden J – that the Applicant had possession of 53.93 grams of methylamphetamine, 90 grams of cannabis, a set of scales several resealable bags, a stolen DVD player, digital camera and fishing reel, a stolen commodore sedan, and $17,900 in cash - lead inevitably to the conclusion that the Applicant was a serious operator in the business of drug dealing. His criminal record indicates that he has little regard for the law and the fact that he was on a bond at the time of the subject offences demonstrates that he has no regard for court orders or his…

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 Regina

Details

AGLC: Stevens v Regina [2008] NSWCCA 294
Case: [2008] NSWCCA 294
Decision Date: 9 December 2008

CaseChat Overview and Summary

Stevens v Regina involved the defendant, Stevens, who had been convicted for the supply of methylamphetamine and possession of a prohibited firearm. Additionally, Stevens had further offences noted on a Form 1, a document used in the sentencing process to detail any previous convictions. The case was heard in the High Court of Australia, which was asked to determine whether the application for leave to appeal against Stevens' sentence was justified.

The primary legal issues that the court had to decide involved the sentencing judge's approach to assessing the significance of the Form 1 matters. Specifically, the court needed to examine whether the sentencing judge appropriately considered the relevance and weight of the previous convictions in determining the overall sentence. Another issue was the proportionality of the effective non-parole period to the aggregate sentence, given that some of the sentences imposed were partly cumulative.

The High Court found that the sentencing judge did not adequately consider the cumulative nature of some of the offences and the proportionality of the effective non-parole period. The court held that the cumulative sentences should have been factored into the overall sentencing framework more thoroughly, ensuring that the total punishment was proportionate to the seriousness of the crimes committed. The court also noted that the aggregate sentence did not appropriately reflect the cumulative nature of the offences, leading to an overestimation of the severity of the punishment.

The High Court granted leave to appeal, highlighting the need for better consideration of cumulative sentences and the proportionality of the non-parole period in future sentencing. This decision underscores the importance of a balanced and nuanced approach to sentencing, particularly when multiple offences are involved.

Orders