AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
14
Court of Criminal Appeal 26 March 2007

Stanford v Regina

[2007] NSWCCA 73

Assault & violenceFirearms & weapons
CRIMINAL LAW APPEAL SENTENCING REQUIREMENT FOR CUSTODIAL SENTENCE ACCUMULATION OF SENTENCES TOTALITY

Citation: Stanford v Regina [2007] NSWCCA 73
Court: New South Wales Court of Criminal Appeal
Date: 26 March 2007
Judge(s): McClellan CJ at CL, Hulme J, Rothman J

Background

The applicant, a young man aged 20 at the time of the offending, was sentenced in the District Court by Sides DCJ in December 2005 following a plea of guilty to multiple counts including malicious wounding of three persons and a firearms offence under s 93G of the Crimes Act 1900 (NSW). A further offence was dealt with on a Form 1 (meaning it was taken into account in sentencing without a separate conviction).

The offending arose from an incident in which the applicant, intoxicated at the time, discharged a firearm in a manner described by the sentencing judge as very dangerous. The applicant had no prior criminal record and was assessed as having excellent prospects of rehabilitation and a non-violent disposition. His chosen career was foreclosed as a direct consequence of the conviction.

The applicant sought leave to appeal against the sentences imposed, raising a range of grounds directed at errors in the sentencing exercise, including the treatment of accumulation, totality, intoxication, the guilty plea discount, and the parity principle.

  • Whether a custodial sentence was required for offences of this kind
  • Whether the sentencing judge erred by fully accumulating the sentence for count 1 with the sentences for counts 2, 3 and 4
  • Whether the sentencing judge erred by imposing wholly concurrent sentences for the three malicious wounding offences
  • Whether the effect of the applicant's intoxication was correctly assessed
  • Whether the guilty plea discount was quantified correctly
  • Whether the parity principle required any comparison with the sentence imposed on a child co-offender
  • Whether the theoretical possibility of the offence being dealt with summarily in the Local Court was a relevant sentencing consideration
  • Whether the sentencing judge adequately considered statutory mitigating factors, including good character, prospects of rehabilitation, and likelihood of reoffending

Decision

The Court of Criminal Appeal allowed the appeal and resentenced the applicant. The Court identified error in the sentencing judge's approach to both accumulation and concurrency across the multiple counts. Full accumulation of count 1 upon the other three counts was not appropriate without some corresponding reduction in the individual sentences to account for totality. At the same time, imposing wholly concurrent sentences for the three malicious wounding offences was also wrong, because wounding three victims is objectively more serious than wounding one.

On the question of intoxication, the Court accepted that Sides DCJ had erred in the way he assessed the applicant's level of intoxication and its relevance to the overall sentencing exercise. The Court confirmed that intoxication is a relevant but double-edged consideration in sentencing: it may reduce moral culpability in some circumstances, but it does not excuse dangerousness.

Regarding the guilty plea, the Court held that the discount ought to be applied at the highest available level (25%) for the s 93G firearms count and at a slightly lower rate (20%) for the remaining counts. The applicant's good character, isolated offending, and excellent rehabilitation prospects were all taken into account as mitigating factors. The Court noted that the statutory requirement to consider separately whether an offender is unlikely to reoffend (distinct from, though overlapping with, good character and rehabilitation prospects) had not been expressly addressed, but found this omission did not materially affect the outcome given the sentencing judge's other findings.

The parity principle, which ordinarily requires that co-offenders not receive grossly disparate sentences without good reason, was found not to require any comparison with the sentence imposed on a child co-offender. The Court also rejected the proposition that the mere theoretical possibility of a matter being dealt with summarily should influence sentencing in the District Court.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by Sides DCJ on 15 December 2005 quashed and the following substituted:
  • Count 2: non-parole period of 1 year from 25 January 2005, balance of term of 7 months from 25 January 2006
  • Count 3: non-parole period of 1 year from 25 April 2005, balance of term of 7 months from 25 April 2006
  • Count 4: non-parole period of 1 year from 25 July 2005, balance of term of 7 months from 25 July 2006
  • Count 1 (including Form 1 offence): non-parole period of 1 year and 3 months from 25 April 2006, balance of term of 1 year from 25 July 2007
  • Parole eligibility date recorded as 25 July 2007

Key Takeaways

  • Full accumulation of sentences is not appropriate unless totality is otherwise addressed, for example by reducing individual sentences below what would otherwise be warranted for each count in isolation.
  • Imposing wholly concurrent sentences for separate offences involving multiple victims understates objective seriousness; the Court of Criminal Appeal confirmed that wounding three persons is more culpable than wounding one, and some degree of accumulation is required to reflect that.
  • The parity principle does not extend to require comparison between an adult offender's sentence and that imposed on a child co-offender, given the distinct sentencing regime applicable to children.
  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the separate mitigating factors of good character, good rehabilitation prospects, and low likelihood of reoffending each require individual attention, even where the findings on one effectively determine the others.
  • A theoretical possibility that an offence could have been dealt with summarily in the Local Court does not operate as a sentencing discount in the District Court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Firearms Act 1996 (NSW)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146
- Johnson v The Queen (2004) 78 ALJR 616
- Markarian v The Queen [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Coleman (1990) 47 A Crim R 306
- R v Crombie [1999] NSWCCA 297
- R v Daetz (2003) 139 A Crim R 398
- R v Dang [2005] NSWCCA 430
- R v El Masri [2005] NSWCCA 167
- R v Hammoud (2000) 118 A Crim R 66
- R v Hearne [2001] 124 A Crim R 451
- R v Hughes [2005] NSWCCA 235
- R v Janceski [2005] NSWCCA 288
- R v Lawrence [2005] NSWCCA 91
- R v Mulato [2006] NSWCCA 282
- R v O'Donohue (No 2) [2001] NSWCCA 495
- R v Ponfield (1999) 48 NSWLR 327
- R v Price [2004] NSWCCA 186
- R v Sandford (1994) 72 A Crim R 160
- R v Simpson (2001) 53 NSWLR 704
- R v Thomson & Houlton (2000) 49 NSWLR 383