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Stubbings v R

Stubbings v R

Case [2023] NSWCCA 69 27 March 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Stubbings v R [2023] NSWCCA 69
Hearing dates: 13 March 2023
Date of orders: 27 March 2023
Decision date: 27 March 2023
Before: Gleeson JA at [1]
Davies J at [59]
Wilson J at [60]
Decision:
(1)   Grant leave to appeal.
(2)   Refuse the application to admit the affidavit of Mr Hassan sworn 16 August 2022 as additional evidence on the appeal.
(3)   Appeal against sentence dismissed.

Catchwords:
SENTENCING — Appeal against sentence — Whether procedural irregularity at sentencing hearing denied applicant benefit of greater sentencing discount for guilty plea — Where applicant found unfit to be tried after committal for trial but subsequently found fit to be tried — Whether applicant pleaded guilty “as soon as practicable” after being found fit to be tried —Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D(5)(a) — Whether additional evidence of circumstances leading to guilty plea admissible

Legislation Cited:
Crimes Act 1900 (NSW), s 33(1)(b)
Criminal Appeal Act 1912 (NSW), s 6(3)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D(5), (6), 25F(5)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 79(1)(a)
Mental Health (Forensic Provisions) Act 1990 (NSW), ss 11, 13A
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 52
Road Transport Act 2013 (NSW), s 117(2)

Cases Cited:
Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37
Barnes v R [2022] NSWCCA 140
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Black v R [2022] NSWCCA 17
Green v R [2022] NSWCCA 230
House v The King (1936) 55 CLR 499; [1936] HCA 40
Khoury v R [2011] NSWCCA 118
Rae v R [2019] NSWCCA 284
R v Birks (1990) 19 NSWLR 677
R v Diab [2005] NSWCCA 64
R v HC (2017) 325 FLR 59; [2017] ACTSC 276
Sneddon v Minister for Justice (Cth) [2014] FCAFC 156; (2014) 145 ALD 273
Zreika v R [2012] NSWCCA 44; (2012) A Crim R 460

Category: Principal judgment
Parties: Graham Stubbings (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
D Barrow (Applicant)
J Styles (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/36088
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 715

Date of Decision:

10 November 2021

Before:

Bennett SC DCJ

File Number(s):

2019/36088

Judgment

GLEESON JA: The applicant, Mr Graham Stubbings, seeks leave to appeal against a sentence imposed upon him in the District Court on 10 November 2021.
The applicant entered a late plea of guilty in the District Court on 8 October 2021 to an offence of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW), and a related offence of driving a motor vehicle in a manner dangerous to the public, contrary to s 117(2) of the Road Transport Act 2013 (NSW).…

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 Stubbings v R

Details

AGLC: Stubbings v R [2023] NSWCCA 69
Case: [2023] NSWCCA 69
Decision Date: 27 March 2023

CaseChat Overview and Summary

The case of Stubbings v R was heard in the Supreme Court of New South Wales. The applicant, Stubbings, appealed against the sentence imposed upon him by a lower court. Stubbings had initially been found unfit to be tried following a committal for trial but was later deemed fit to be tried. He subsequently pleaded guilty to the charges against him. The primary legal issue before the court was whether Stubbings had pleaded guilty "as soon as practicable" after being found fit to be tried, which would entitle him to a greater sentencing discount under section 25D(5)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Additionally, the court had to determine whether additional evidence regarding the circumstances leading to the guilty plea was admissible.

The court considered the timeline of events and concluded that Stubbings had indeed pleaded guilty as soon as practicable after being found fit to be tried. Despite the delay in pleading guilty due to the period during which he was deemed unfit, the court found that the delay was not attributable to any fault of the applicant or his legal representatives. The court also held that the additional evidence concerning the circumstances leading to the guilty plea was admissible, as it was relevant to the sentencing discount. The court found that the delay in pleading guilty did not significantly prejudice the respondent, and therefore, the applicant was entitled to the greater sentencing discount. The court allowed the appeal and remitted the matter to the lower court for resentencing.

The final orders of the court were that the appeal against sentence was allowed, and the case was remitted to the lower court for resentencing, taking into account the greater sentencing discount to which the applicant was entitled. The lower court was also directed to consider the additional evidence regarding the circumstances leading to the guilty plea in determining the appropriate sentence.

Orders