Citation: Regina v Stevens [2000] NSWCCA 324
Court: NSW Court of Criminal Appeal
Date: 10 July 2000
Judge(s): Studdert J; Bell J
Background
The applicant was one of three co-offenders involved in a scheme to create false identities and use them to obtain credit cards and loan facilities from financial institutions. He pleaded guilty before Judge Kinchington in the District Court to seven counts, including using a false instrument (carrying a maximum of ten years imprisonment) and multiple offences of dishonestly obtaining, or attempting to obtain, a valuable thing by deception. He also asked the court to take into account a further ten similar matters listed on a Form 1.
The sentencing judge assessed the applicant's culpability as greater than that of co-offender Fischer but less than co-offender Price. The applicant received a minimum term of three years on the lead count (using a false instrument), with an additional term of eighteen months, together with concurrent fixed-term sentences on the remaining counts.
The applicant sought leave to appeal to the Court of Criminal Appeal, contending the overall sentence was unduly harsh and that insufficient credit had been given for his guilty pleas and personal circumstances.
Legal Issues
- Whether the total sentence imposed was unduly harsh or severe, including by reference to Judicial Commission sentencing statistics
- Whether the sentencing judge gave appropriate weight to the applicant's guilty pleas, entered after a jury had been empanelled
- Whether the sentencing judge adequately took into account the applicant's subjective circumstances, including drug addiction, his father's serious illness, loss of access to his child, and his attempts to find employment
- Whether the sentences were appropriate when compared with those imposed on the co-offenders Fischer and Price
Decision
Bell J (with whom Studdert J agreed) dismissed each ground of challenge. On the statistical argument, her Honour noted that caution is required when using Judicial Commission sentencing data, as explained in R v Bloomfield (1998) 44 NSWLR 734. The statistics were of limited assistance in this case because the applicant's lead count was under s 300(2) of the Crimes Act 1900, carrying a ten-year maximum, while the Commission's data for comparable s 178BA offences did not reflect that higher maximum or the Form 1 matters.
On the question of parity with co-offenders, the Court considered the distinctions between the three offenders to be meaningful. Fischer faced a lower maximum penalty on his most serious charge and was found to be the least culpable. Price, the most culpable, received a sentence that reflected the higher value of losses involved and greater criminal involvement. The applicant's sentence was consistent with his intermediate role.
Regarding the guilty pleas, the sentencing judge had acknowledged they were not entered at the first reasonable opportunity (a jury had already been empanelled) but accepted them as genuine expressions of remorse and gave credit for the costs they saved. Bell J found that approach was appropriate and disclosed no error. The grounds relating to subjective circumstances were not pursued in oral argument, and her Honour found no error in how the sentencing judge had addressed those matters.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Sentencing statistics from the Judicial Commission must be used with caution and have limited value where the applicable offence carries a higher maximum penalty than the offences reflected in the available data.
- Parity between co-offenders does not demand identical sentences; the Court of Criminal Appeal confirmed that meaningful differences in culpability and the nature of charges will justify sentencing distinctions.
- Guilty pleas entered after a jury has been empanelled may still attract a discount if accepted as genuine expressions of remorse and as saving the community the expense of a trial, but the weight given to them will be reduced.
- In dismissing the appeal, the Court found no undisclosed error arising from the credit given for the guilty pleas, even though the applicant contended the overall sentence length implied inadequate credit.
- Subjective circumstances, including drug addiction and personal hardship, do not automatically generate a successful appeal ground where the sentencing judge has referred to and considered those matters in the original reasons for sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 178BA, 300(2), 344
- Criminal Procedure Act 1986 (NSW), s 21
Cases:
- R v Bloomfield (1998) 44 NSWLR 734