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Stumbles v R

Stumbles v R

Case [2006] NSWCCA 418 21 December 2006

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CITATION: Terry Peter Stumbles v R [2006] NSWCCA 418

HEARING DATE(S): 27 November 2006, 13 December 2006

JUDGMENT DATE:
21 December 2006

JUDGMENT OF: Sully J at 1; Hidden J at 2; Latham J at 3

DECISION: 1. Leave to appeal granted ; 2. Appeal allowed in part; 3. Quash the sentence imposed on Count 3 on 13 May 2005 and in lieu, the applicant is sentenced to a non parole period of 8 months, commencing 13 May 2006, expiring 12 January 2007, with a balance of term of 16 months expiring 12 May 2008. The applicant is to be released on 13 January 2007

CATCHWORDS: Sentence appeal - Accessory Before the Fact to Steal Motor Vehicle - Fresh Evidence - Disparity - Hardship to offender's family.

CASES CITED: R v Munday [1981] 2 NSWLR 177
R v Bailey (1988) 35 A Crim R 458
R v Ehrenburg NSWCCA (unreported) 14 December 1990
R v Ashton (2002) 137 A Crim R 73
Iglesias v Regina [2006] NSWCCA 261
R v Abou-Chabake [2004] NSWCCA 356 (2004) 149 A Crim R 417
R v Poole [2006] NSWCCA 93
R v Goodwin (1990) 51 A Crim R 328
R v Fordham (1997) 98 A Crim R 359
Tatana v Regina [2006] NSWCCA 398
R v T (1989) 47 A Crim R 29
R v Edwards (1996) 90 A Crim R 510

PARTIES: Applicant - Terry Peter Stumbles
Respondent - Regina

FILE NUMBER(S): CCA 2006/1003

COUNSEL: Applicant - MC Ramage QC
Respondent - P Miller

SOLICITORS: Applicant - Voros Lawyers
Respondent - S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/41/0270

LOWER COURT JUDICIAL OFFICER: Phelan DCJ

LOWER COURT DATE OF DECISION: 13 May 2005

2006/1003

SULLY J
HIDDEN J
LATHAM J
21 DECEMBER 2006

TERRY PETER STUMBLES v REGINA

Judgment

1 SULLY J : I agree with Latham J.

2 HIDDEN J : I agree with Latham J.

3 LATHAM J : The applicant, Terry Peter Stumbles, seeks leave to appeal against sentences imposed on 13 May 2005 by his Honour Judge Phelan (the Judge) for three counts of Accessory Before the Fact to Steal Motor Vehicle, each carrying a maximum penalty of 10 years imprisonment. On each of two counts the applicant received a fixed term of one year, commencing 13 May 2005. On the remaining count the applicant received a sentence of two years imprisonment, with a non parole period of one year commencing 13 May 2006. Thus, the aggregate sentence was one of 3 years imprisonment, with a non parole period of 2 years.

4 Seven grounds of appeal were filed. When the matter came before this Court, it became apparent that, were the applicant to succeed on the fresh evidence ground, there would be no necessity to address the remaining grounds. Indeed, on the hearing of the appeal, senior counsel for the applicant concentrated his submissions on the fresh evidence ground, no doubt in recognition of where the strengths of the application lay. Having regard to…

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 Stumbles v R

Details

AGLC: Stumbles v R [2006] NSWCCA 418
Case: [2006] NSWCCA 418
Decision Date: 21 December 2006

CaseChat Overview and Summary

The case of Stumbles v R involved an appeal against the sentence of the appellant who had been found guilty of being an accessory before the fact to the theft of a motor vehicle. The appellant argued that the sentence imposed was disproportionately severe and that there was new evidence that had not been available at the time of the sentencing hearing. The appellant also raised concerns about the hardship that the sentence would cause to their family, particularly to their young children. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the availability of new evidence, which related to the appellant's personal circumstances, warranted a reduction in sentence. The court was also required to consider the impact of the sentence on the appellant's family and whether this was a relevant consideration in determining the appropriate sentence.

The court found that the sentence was not manifestly excessive, and that the new evidence did not warrant a reduction in sentence. The court acknowledged that the sentence would cause hardship to the appellant's family, but held that this was not a sufficient reason to reduce the sentence. The court held that the primary consideration in determining the appropriate sentence was the seriousness of the offence and the need to deter similar conduct in the future. While the court recognised the importance of taking into account the impact of the sentence on the appellant's family, this was not a decisive factor in determining the appropriate sentence.

The appeal was dismissed, and the original sentence was upheld. The court held that the sentence was proportionate to the seriousness of the offence and that the new evidence did not warrant a reduction in sentence. The court also held that the hardship caused to the appellant's family was a relevant consideration, but that it did not outweigh the need to deter similar conduct in the future.

Orders