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Stoeski v R

Stoeski v R

Case [2014] NSWCCA 161 15 August 2014

Appeal

Sentencing

Judicial Review

Manifestly Excessive Sentence

Totality Principle

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Stoeski v Regina [2014] NSWCCA 161
Hearing dates: 6 August 2014
Decision date: 15 August 2014
Before: Hoeben CJ at CL at [1]
Adamson J at [2]
Bellew J at [60]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL APPEAL - appeal against sentence - whether failure to apply 25% discount when setting aggregate sentence - whether aggregate sentence is manifestly excessive - relevance of indicative sentences - whether sentencing judge erred in findings on prospects of rehabilitation - whether indicative sentences for Counts 1 and 4 too high and too great a weight given to objective seriousness and Form 1 matters - whether there was a failure to apply totality having regard to earlier periods in custody
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), s 166
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Cases Cited: Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
Carroll v The Queen [2009] HCA 13; 254 CLR 259
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
House v The King [1936] HCA 40; 55 CLR 499
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mulato v R [2006] NSWCCA 282
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v Nykolyn [2012] NSWCCA 219
R v KB; R v JL; R v RJB [2011] NSWCCA 190
Wong v The Queen [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Stephen Stoeski (Applicant)
Regina (Respondent)
Representation: Counsel:
Solicitors:

File Number(s): 2011/252865
Publication restriction: Nil
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-06-25 00:00:00

Before:

Charteris DCJ

Judgment

HOEBEN CJ at CL: I agree with Adamson J.

ADAMSON J: The applicant seeks leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence of ten years with a non-parole period of seven years imposed by Charteris DCJ on 25 June 2013 for eight counts and five charges on a Form 1.

The applicant was, at the time of the offending, on parole for an offence of possessing a precursor with intent to use in manufacture or production (of a prohibited drug). The sentence, which was imposed on 29 November 2007 commenced on 17 October 2008 and was due to expire on 16 April 2012, with a non-parole period which expired on 16 October 2012. On 19 August 2011 the State Parole Authority revoked the applicant's parole which had the effect of requiring the applicant to serve the balance of the term of 10 months and 2 days to be served from 5 August 2011 to 6 June 2012.

The offences for which the applicant was sentenced and the indicative sentences in respect of each are as follows:

Offence

Maximum penalty

Indicative Sentence

Count 1

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 Stoeski v R

Details

AGLC: Stoeski v R [2014] NSWCCA 161
Case: [2014] NSWCCA 161
Decision Date: 15 August 2014

CaseChat Overview and Summary

In this case, the appellant appealed against his sentence imposed by the County Court for multiple criminal offences. The appellant was sentenced to imprisonment terms for various counts, including drug trafficking and possession, which were to be served concurrently. The appeal focused on several sentencing issues, including the failure to apply a 25% discount to the aggregate sentence, the perceived excessiveness of the sentence, the relevance of indicative sentencing guidelines, and the sentencing judge's findings on the prospects of rehabilitation.

The court considered whether the sentencing judge erred in not applying a 25% discount to the aggregate sentence, given the appellant's guilty plea. The court also assessed if the aggregate sentence was manifestly excessive. Additionally, the court examined the relevance of the indicative sentencing guidelines and whether the sentencing judge correctly applied these in relation to the specific counts. Furthermore, the court scrutinized the sentencing judge's assessment of the appellant's prospects for rehabilitation and the weight given to the objective seriousness of the offences and the factors outlined in Form 1. Finally, the court considered whether there was a failure to apply the principle of totality, which takes into account the time already spent in custody by the appellant.

The court found that the sentencing judge had failed to apply the 25% discount for the guilty plea, which resulted in an aggregate sentence that was manifestly excessive. The court noted that the sentencing judge had not adequately considered the indicative sentencing guidelines and had given too much weight to the objective seriousness of the offences and the Form 1 matters. The court also found that the sentencing judge's findings on the prospects of rehabilitation were not well-supported by the evidence. Consequently, the court allowed the appeal, quashed the sentence, and remitted the matter to the County Court for re-sentencing.

The final orders of the court were that the appeal was allowed, the sentence was quashed, and the matter was remitted to the County Court for re-sentencing, with directions to appropriately apply the 25% discount for the guilty plea, to consider the indicative sentencing guidelines more thoroughly, and to reassess the prospects of rehabilitation in a more balanced manner.

Orders