Stock v R

Case [2011] NSWCCA 49


Court of Criminal Appeal

New South Wales

Case Title: Stock v R
Medium Neutral Citation: [2011] NSWCCA 49
Hearing Date(s): 11 February 2011
Decision Date: 30 March 2011
Jurisdiction:
Before:

McClellan CJ at CL at [1]
Buddin J at [2]
Schmidt J at [3]

Decision:

1. Leave to file the appeal out of time is granted.

2. Leave to appeal is granted.

3. The appeal is dismissed.

Catchwords:

CRIMINAL LAW - appeal against sentence - whether there was insufficient weight given to contrition and remorse - whether insufficient weight given to the forfeiture proceedings and money paid to the State of New South Wales - whether penalty imposed was manifestly excessive

Legislation Cited:

Confiscation of Proceeds of Crimes Act 1989
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment Act 2010
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Proceeds of Crime Act 2002 (Cth)
Sentencing Act 1991 (Vic)

Cases Cited:

Bui v R [2008] NSWCCA 314
Dinsdale v R [200] HCA 54; (2000) 202 CLR 321
GAS v R [2004] HCA 22; (2004) 217 CLR 198
Hampton v R [2010] NSWCCA 278
Lowe v R [1984] HCA 46; (1984) 154 CLR 606
Nguyen v R [2009] NSWCCA 283
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Poyner v R (1986) 60 ALJR 616
R v AD [2005] NSWCCA 208
R v AJP [2004] NSWCCA 434;150 A Crim R 575
R v Boney [2008] NSWCCA 313
R v Jurisic (1998) 45 NSWLR 209
R v Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152
R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338
R v Murray (unreported, Court of Criminal Appeal, NSW, Barr J, 29 October 1997)
R v Slattery (1996) 90 A Crim R 519
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure ) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146
Regina v Farah [2005] NSWCCA 67
SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
Thi Lan Nguyen v R [2009] NSWCCA 181
Tran v R [2010] NSWCCA 72
Truong v R [2009] NSWCCA 41

Texts Cited:

Kalache v The Queen S83/2000 [2000] HCATrans 713

Category: Principal judgment
Parties:

William Michael Stock (Applicant)
Regina (Respondent)

Representation
- Solicitors:

Solicitors:
Ellis & Baxter Solicitors (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Crown)

- Counsel:

Counsel:
Mr G Jones with Mr Bassett (Applicant)
Mr JA Girdham (Crown)

File number(s): CCA No 2009/134996
Decision Under Appeal
- Court / Tribunal:
- Before: Black J
- Date of Decision: 04 November 2009
- Citation:
- Court File Number(s) 34868/08/17
Publication Restriction:

Judgment

  1. McCLELLAN CJ : I agree with Schmidt J.

  1. BUDDIN J : I agree with Schmidt J.

  1. SCHMIDT J : On 4 November 2009, the applicant was sentenced by Black DCJ as follows:

·Section 23(2)(a)…

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Stock v R [2011] NSWCCA 49
Case
[2011] NSWCCA 49
Decision Date

CaseChat Overview and Summary

In the case of Stock v R, the appellant, Mr Stock, sought to appeal against the sentence imposed upon him by the Supreme Court of New South Wales. The nature of the dispute centred around the sentencing of Mr Stock, who was convicted of serious drug-related offences. The Court of Appeal was tasked with determining whether the trial judge had given insufficient weight to certain factors, including Mr Stock's contrition and remorse, the forfeiture proceedings, and the money paid to the State of New South Wales.

The primary legal issues before the court were whether the trial judge had erred in failing to sufficiently consider the appellant's contrition and remorse, whether the judge had given insufficient weight to the forfeiture proceedings and the money paid to the State, and whether the penalty imposed was manifestly excessive. The court needed to assess whether these factors warranted a reduction in the sentence or if the sentence was appropriate given the gravity of the offences.

The Court of Appeal held that while the trial judge had considered the appellant's remorse, it was not sufficiently emphasised in the sentencing process. The court also found that insufficient weight had been given to the forfeiture proceedings and the money paid to the State, which should have been taken into account as mitigating factors. Furthermore, the court determined that the penalty imposed was indeed manifestly excessive, taking into account all relevant factors. As a result, the appeal was allowed, and the case was remitted to the trial judge for resentencing.

The final orders of the court were that the appeal against sentence be allowed, the conviction be upheld, and the matter be remitted to the trial judge for resentencing, with specific directions to give proper weight to the factors of contrition, remorse, forfeiture proceedings, and the money paid to the State of New South Wales.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ BUDDIN J SCHMIDT J

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ, BUDDIN J, SCHMIDT J

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