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26
Court of Criminal Appeal 10 March 2006

Regina v Stambolis

[2006] NSWCCA 56

Also reported as (2006) 160 A Crim R 510
Theft & property
CROWN APPEAL ON SENTENCE INCORRECT USE OF PRIOR OFFENCES RELEVANCE OF STANDARD NON PAROLE PERIOD SENTENCES MANIFESTLY INADEQUATE PRINCIPLES APPLICABLE ON RESENTENCING.

Citation: Regina v Stambolis [2006] NSWCCA 56
Court: Court of Criminal Appeal, New South Wales
Date: 10 March 2006
Judge(s): Giles JA, Howie J, Hoeben J

Background

The respondent was convicted of two sets of break, enter and steal offences committed in August and September 2004, including one count of break, enter and steal in circumstances of aggravation. He was arrested shortly after each set of offences and made full admissions to police. Despite those admissions, he did not plead guilty until May 2005, approximately eight months after his second arrest, and only after the Crown agreed to deal with a separate escape charge by way of a Form 1 (a procedure by which additional charges are taken into account at sentencing without a separate conviction).

The sentencing judge in the District Court (Geraghty DCJ) imposed fixed-term suspended sentences. The Crown appealed to the Court of Criminal Appeal on the ground that those sentences were manifestly inadequate.

The Court of Criminal Appeal granted leave to appeal, allowed the appeal, and resentenced the respondent to terms of actual imprisonment with non-parole periods.

  • Whether the suspended sentences imposed were appropriate for serious break, enter and steal offences, including an aggravated variant
  • Whether the sentencing judge correctly assessed the guilty pleas as "early" and warranting a 25 per cent discount
  • Whether the sentencing judge erred in failing to fix a non-parole period or give reasons for imposing fixed-term sentences
  • Whether the sentencing judge applied prior offences in an incorrect manner
  • What weight the standard non-parole period carried in the sentencing exercise
  • What the correct sequence of reasoning is when formulating a sentence, particularly where suspension of a sentence is being contemplated

Decision

The Court found the sentences imposed below were manifestly inadequate. A central error was that the sentencing judge began his reasoning with the desired outcome (a suspended sentence) rather than first determining what sentence the offending warranted and then considering whether suspension was appropriate. Howie J observed that the judge had worked backwards from suspension, which inverted the proper sentencing process.

On the guilty plea discount, Howie J identified a significant error of principle. The respondent had withheld his pleas as a bargaining tool to secure a favourable outcome on the escape charge, and did not plead guilty until four days after the Crown confirmed its approach. A plea used as leverage, and delivered only after the offender achieved the concession sought, does not carry meaningful utilitarian value. In those circumstances, describing the pleas as early or as justifying a full 25 per cent discount was, in Howie J's assessment, difficult to reconcile with established principle.

Howie J also noted that the sentencing judge failed to give any reasons for imposing fixed terms rather than setting a non-parole period, contrary to the requirement under section 44 of the Crimes (Sentencing Procedure) Act 1999. The judge had apparently misunderstood the effect of a finding that no "special circumstances" existed, incorrectly treating it as authority to impose a fixed term rather than as a direction on the proportionate relationship between the non-parole period and the balance of the term.

On resentencing, the Court applied the principle of totality, making the new sentences wholly concurrent with a sentence already being served and back-dating the commencement to the date the respondent first entered custody (7 September 2004). The resentenced terms reflected the seriousness of the offending, particularly the aggravated break and enter.

Orders Made

  • Leave to appeal granted
  • Crown appeal allowed
  • Sentences imposed on counts 1 and 2 of indictment 1 quashed; in lieu, on count 1 (break enter and steal, 25 August 2004), imprisonment with a non-parole period of 12 months commencing 7 September 2004 and expiring 6 September 2005, with a balance of term expiring 6 September 2006; on count 2 (possessing housebreaking implements), fixed term of 9 months commencing 7 September 2004 and expiring 6 June 2005
  • Sentences imposed on counts 1 and 2 of indictment 2 quashed; in lieu, on count 1 (aggravated break enter and steal, 5 September 2004), imprisonment with a non-parole period of 2 years commencing 7 September 2005 and expiring 6 September 2007, with a balance of term expiring 6 March 2010; on count 2 (possessing housebreaking implements), fixed term of 9 months commencing 7 September 2005 and expiring 6 June 2006
  • All sentences ordered to run concurrently with the sentence imposed by Shadbolt DCJ

Key Takeaways

  • A sentencing court must determine the appropriate sentence for the offending before considering whether to suspend it; beginning with the desired outcome of suspension and working backwards is a reversible error in the exercise of sentencing discretion.
  • Under section 44 of the Crimes (Sentencing Procedure) Act 1999, a court sentencing to imprisonment must set a non-parole period or give reasons for not doing so; a finding of no "special circumstances" does not relieve the court of that obligation, it merely governs the statutory ratio between the non-parole period and the balance of the term.
  • Where a plea of guilty is withheld as a bargaining tool to secure a concession from the Crown on a separate charge, and is only entered after that concession is obtained, the plea is unlikely to carry significant utilitarian value warranting a substantial discount, according to the Court's analysis.
  • In dismissing the notion that such pleas are routinely "early," Howie J emphasised that the timing and circumstances of a plea, not merely the absence of a full trial, determine whether a utilitarian discount is warranted.
  • On resentencing after a successful Crown appeal, the Court applied the totality principle by back-dating sentences to the original date of custody and ordering concurrent terms, thereby ensuring the cumulative sentence remained proportionate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 44(2), 44(4)

Cases
- Cameron v The Queen (2002) 209 CLR 339
- Dinsdale v The Queen (2000) 202 CLR 321
- Pearce v The Queen (1998) 194 CLR 610
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Way (2004) 60 NSWLR 167
- R v Jurisic (1998) 45 NSWLR 209
- R v Dodd (1991) 57 A Crim R 349
- R v Tolley [2004] NSWCCA 165
- R v Harmouche [2005] NSWCCA 398
- R v Oinonen [1999] NSWCCA 310
- R v Cardoso [2003] NSWCCA 15
- R v Zamagias [2002] NSWCCA 17
- R v Dib [2003] NSWCCA 117
- R v Wall [2002] NSWCCA 42
- R v Foster [2001] NSWCCA 215
- R v Blackman and Walters [2001] NSWCCA 121
- R v Wegener [1999] NSWCCA 405
- R v Cartwright (1989) 17 NSWLR 243
- R v Rushby (1977) 1 NSWLR 594
- R v Geddes (1936) 36 SR(NSW) 554
- JCE (2000) 120 A Crim R 18