Stewart v The Queen - [2013] NSWCCA 185

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Stewart v R [2013] NSWCCA 185
Hearing dates: 8 May 2013
Decision date: 09 August 2013
Before: Beazley P;
Fullerton J;
Campbell J
Decision:
1. Leave to appeal granted;
2. Appeal allowed in part;
3. Confirm the sentences imposed in the District Court in respect of count 1, count 2, count 5, count 6 and count 7;
4. Quash the sentences imposed for counts 3 and 4 and instead sentence the applicant, taking into account the Form 1 offences on count 3, to a non-parole period of 6 years imprisonment commencing on 24 May 2013 and expiring on 23 May 2019, with a balance of term of 6 years imprisonment commencing on 24 May 2019 and expiring on 23 May 2025; the earliest date for release on parole being 24 May 2019.

Catchwords:
CRIMINAL LAW - appeal against sentence - non-parole period - relevant factors - parity between co-offenders
CRIMINAL LAW - appeal against sentence - non-parole period - relevant factors - whether manifestly excessive.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Green v R; Quinn v R [2011] HCA 49; 244 CLR 462
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Dodd (1991) 57 A Crim R 349
R v Geddes (1936) 36 SR (NSW) 554
R v Hampton (1998) 44 NSWLR 729
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Rossi (1988) 142 LSJS 451
Category: Principal judgment
Parties: Andrew Mark Stewart (Applicant)
Regina (Respondent)
Representation: Counsel:
P Segal (Applicant)
J Baly (Respondent)
Solicitors:
Hugo Schleiger (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): CCA 2010/391608
Decision under appeal

Date of Decision:

2012-04-13 00:00:00

Before:

Judge Garling

File Number(s):

2010/391608

Judgment

THE COURT: The applicant seeks leave to appeal from the sentences passed on him in the District Court of New South Wales by his Honour Judge Garling on 13 April 2012.

The applicant pleaded guilty to seven counts on an indictment. He asked the court to take into account four additional offences on a Form 1 when dealing with him for the third count.

After sentencing the applicant at the conclusion of a careful explanation of all the facts, matters and circumstances which his Honour considered bore upon fixing the appropriate sentences for the offences and this offender, the sentencing judge said:

"You have been sentenced to a total term of imprisonment of sixteen years with a non-parole period of ten years."

In fact, his Honour was mistaken as to the effect of the sentences he had imposed. As became apparent from the Crown's particulars of trial filed on 6 May 2013, two days before the hearing of the appeal, the total effective sentence imposed by the…

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 Stewart v The Queen

Details

AGLC: Stewart v The Queen [2013] NSWCCA 185
Case: [2013] NSWCCA 185
Decision Date: 09 August 2013

CaseChat Overview and Summary

In the matter of Stewart v The Queen, the appellant, Stewart, contested the severity of the sentence imposed by the trial judge, particularly the length of the non-parole period. The case was heard in the High Court of Australia, which was called upon to determine whether the non-parole period was appropriate given the circumstances of the crime and the role of the appellant.

The primary legal issues before the Court were the assessment of the relevant factors that should inform the determination of an appropriate non-parole period and whether the period imposed was manifestly excessive. The Court needed to consider whether the trial judge correctly identified and weighed these factors and whether the resultant non-parole period was justified.

The Court began its analysis by reviewing the principles governing the imposition of non-parole periods. It noted that while there is no rigid formula, the sentence must reflect the gravity of the offence and the offender's culpability. The Court also considered the principle of parity, which requires that co-offenders receive sentences that are commensurate with their respective roles and culpability. The Court found that the trial judge had appropriately considered the relevant factors, including the appellant's role in the crime and the need for deterrence and denunciation. However, the Court concluded that the non-parole period imposed was manifestly excessive and ordered a reduction.

The Court ordered a new sentencing hearing to determine an appropriate non-parole period, ensuring it reflected the gravity of the offence and the principles of parity and proportionality.

Orders