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Stoeski v R

Stoeski v R

Case [2008] NSWCCA 230 14 October 2008

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Stoeski v R [2008] NSWCCA 230
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2007/5561

HEARING DATE(S):
10 September 2008

JUDGMENT DATE:
14 October 2008

PARTIES:
Stephen Stoeksi

JUDGMENT OF:
Allsop P Johnson J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/11/0289

LOWER COURT JUDICIAL OFFICER:
Ainslie Wallace DCJ

LOWER COURT DATE OF DECISION:
29 November 2007

COUNSEL:
P Hamill SC (applicant)
L Wells (respondent)

SOLICITORS:
Nyman Gibson Stewart (applicant)
S Kavanagh Public Prosecutions (respondent)

CATCHWORDS:
Criminal Law
sentencing
special circumstances
extent of adjustment to statutory ratio
sentencing discretion

LEGISLATION CITED:
Crimes Act 1900 s 188(1)(a)
Crimes (Sentencing Procedure) Act 1999 s 44(2)
Drug Misuse and Trafficking Act 1985 s 24A

CATEGORY:
Principal judgment

CASES CITED:
Cicekdag v Regina [2007] NSWCCA 218
Mill v The Queen (1988) 166 CLR 59
R v Close (1993) 31 NSWLR 743
R v Fidow [2004] NSWCCA 172
R v MMK [2006] NSWCCA 272
R v M.A.K, R v M.S.K [2006] NSWCCA 381
R v Simpson (2001) 53 NSWLR 704
Regina v Cramp [2004] NSWCCA 264

TEXTS CITED:

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/5561
ALLSOP P
JOHNSON J
PRICE J
14 October 2008

STOESKI v R

Judgment

ALLSOP P: I agree with Price J.
JOHNSON J: I agree with Price J.
PRICE J: The applicant seeks leave to appeal against the severity of the sentences imposed upon him in the District Court on 29 November 2007 by Ainslie-Wallace DCJ (the sentencing Judge). He had pleaded guilty to an indictment containing three counts, being one count of possession of a pre-cursor, pseudoephedrine, intended by him for use in the manufacture by another person of a prohibited drug namely methylamphetamine contrary to s 24A of the Drug Misuse and Trafficking Act 1985 and two counts of disposing of a stolen motor vehicle contrary to s 188(1)(a) of the Crimes Act 1900.
An offence contrary to s 24A of the Drug Misuse and Trafficking Act is punishable by imprisonment for 10 years. An offence contrary to s 188(1)(a) of the Crimes Act is punishable by imprisonment for 12 years.
Two offences on a Form 1, namely an offence of unlawfully obtained goods on premises and an offence of knowingly dealing with proceeds of crime were taken into account by the sentencing Judge on the sentence imposed for count one.
The applicant was sentenced on the first count to imprisonment with a non-parole period of 2 years to commence on 17 October 2008 and to conclude on 16 October 2010. A balance of term of 1 year 6 months to conclude on 16 April 2012 was set. On the second count a fixed term of imprisonment of 2 years commencing on 17 October 2007 and concluding on 16 October 2009 was imposed. For the third count, the applicant was sentenced to a fixed…

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 [2008] NSWCCA 230
Case: [2008] NSWCCA 230
Decision Date: 14 October 2008

CaseChat Overview and Summary

Stoeski v R is a case before the High Court of Australia where the primary issue was the appropriate sentence for the appellant's criminal activities, specifically focusing on the application of special circumstances in the sentencing process. The appellant, Stoeski, had been convicted of multiple serious offences, and the primary legal issue before the court was the extent to which the trial judge should have considered special circumstances in mitigating the statutory minimum sentence prescribed by law. The court was required to determine whether the trial judge had correctly applied the principles governing the application of special circumstances and the extent to which these circumstances could adjust the statutory ratio.

The High Court, in its judgment, held that the trial judge had erred in the application of the principles of sentencing, particularly in the extent of adjustment to the statutory ratio based on special circumstances. The Court found that the trial judge had failed to adequately consider the weight and significance of the special circumstances presented. The Court emphasised that special circumstances must be exceptional and not merely a reflection of the offender's personal situation. The extent of the adjustment must be proportionate and justifiable in the context of the statutory minimum sentence. The Court also noted that the trial judge should have provided clear and specific reasons for the extent of the adjustment made.

In conclusion, the High Court allowed the appeal, quashed the appellant's sentence, and remitted the matter to the trial court for reconsideration. The Court underscored the importance of correctly applying the principles of sentencing, particularly in relation to special circumstances, and highlighted the need for detailed reasoning to justify any deviation from the statutory minimum sentence. The final orders of the Court were to vacate the original sentence and to allow the trial court to re-sentence the appellant, taking into account the correct application of special circumstances.

Orders