Citation: Terry Peter Stumbles v R [2006] NSWCCA 418
Court: NSW Court of Criminal Appeal
Date: 21 December 2006
Judge(s): Sully J, Hidden J, Latham J (Latham J delivering the leading judgment)
Background
The applicant was a motor mechanic who, over a three-month period in late 2003 and early 2024, directed another person to steal three specific motor vehicles on his behalf, intending to use parts from them. He pleaded guilty in the Local Court to three counts of being an accessory before the fact to steal a motor vehicle, each carrying a maximum of ten years imprisonment. At sentencing in May 2005, District Court Judge Phelan imposed fixed terms of one year imprisonment on two counts and a sentence of two years imprisonment (with a one-year non-parole period) on the third count. The sentences were structured so that the aggregate was three years imprisonment with a total non-parole period of two years.
The applicant sought leave to appeal against those sentences. Seven grounds were filed, but the hearing focused on two: the reception of fresh evidence concerning one of his sons' autism diagnosis, which had not been confirmed until after sentencing, and a claimed disparity between his non-parole period and that imposed on his co-offender.
Legal Issues
- Whether the Court of Criminal Appeal should receive fresh evidence of a family member's medical condition that was not available, or not fully appreciated, at the time of sentencing
- Whether there was an unjustifiable sentencing disparity between the applicant's non-parole period and that of his co-offender, who had committed significantly more extensive offences
- Whether those two matters, considered together, warranted a reduction in the sentences being served
Decision
Fresh evidence. The Court confirmed the general principle that appellate courts will not receive evidence of events occurring after sentence, because reviewing a sentence in light of subsequent events is the province of the executive, not the courts. However, this principle yields to exceptional circumstances. The relevant test is whether the condition or its significance was unknown or not fully appreciated at sentencing. The Court held that fresh evidence concerning the health of a family member, and the resulting hardship to dependants, falls within the same category as evidence about an offender's own health: if absent from the sentencing proceedings, it may have had a real bearing on the sentencing discretion.
At sentencing, the older son's autism was already known, but the precise diagnosis of the younger son had not been confirmed. Post-sentence evidence established that the younger boy had also been diagnosed with autism, placing an extreme and ongoing care burden on the applicant's separated wife. The Court found this constituted fresh evidence not available by the exercise of due diligence at the time of sentencing, and admitted it.
Disparity. The co-offender Fairall received an aggregate sentence of five years imprisonment with a non-parole period of two and a half years. His offending was patently more extensive than the applicant's, spanning a greater number of offences over a longer period. Despite that, Fairall's non-parole period was shorter than the applicant's. The Crown conceded disparity existed, though it maintained the objective seriousness of the applicant's conduct justified his sentence. The Court agreed the three-year head sentence was appropriate but found the non-parole period disproportionate when considered alongside the disparity with Fairall's sentence.
Outcome. The combination of the exceptional family circumstances and the sentencing disparity justified altering the proportion of the non-parole period relative to the head sentence on the remaining count (Count 3, the only count still being served). The Court resentenced the applicant on that count with a shorter non-parole period, resulting in his release on parole in January 2007.
Orders Made
- Leave to appeal granted
- Appeal allowed in part
- The sentence imposed on Count 3 on 13 May 2005 was quashed; in its place, the applicant was sentenced to a non-parole period of 8 months commencing 13 May 2006 and expiring 12 January 2007, with a balance of term of 16 months expiring 12 May 2008
- The applicant was to be released on parole on 13 January 2007
Key Takeaways
- Fresh evidence of a family member's medical condition may be received by an appellate court in exceptional circumstances, provided that condition or its true significance was unknown or not fully appreciated at the time of sentencing.
- No distinction exists, for the purposes of fresh evidence principles, between evidence about an offender's own health and evidence about a family member's condition that gives rise to exceptional hardship for dependants.
- A diagnosis confirmed only after sentencing can satisfy the test of constructive unavailability, even where related symptoms or an earlier partial diagnosis were already before the sentencing court.
- Sentencing disparity between co-offenders, particularly where the less-culpable offender bears the longer non-parole period, may warrant appellate intervention even where the head sentence is otherwise appropriate.
- In resentencing, the Court of Criminal Appeal may alter the ratio of the non-parole period to the head sentence rather than reducing the overall term, where that adjustment best reflects the combination of grounds established.
Legislation and Cases Referenced
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
Legislation: No specific legislation was cited in the provided text, though the offence of being an accessory before the fact to steal a motor vehicle carried a maximum of ten years imprisonment.