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Court of Criminal Appeal 14 October 2008

Stoeski v R

[2008] NSWCCA 230

DrugsTheft & property
CRIMINAL LAW SENTENCING SPECIAL CIRCUMSTANCES EXTENT OF ADJUSTMENT TO STATUTORY RATIO SENTENCING DISCRETION

Citation: Stoeski v R [2008] NSWCCA 230
Court: NSW Court of Criminal Appeal
Date: 14 October 2008
Judge(s): Allsop P, Johnson J, Price J

Background

The appellant pleaded guilty in the District Court to three offences: possessing a precursor substance (pseudoephedrine) intended for use in manufacturing methylamphetamine, and two counts of disposing of stolen motor vehicles. Two further offences were taken into account on a Form 1 (a procedure by which related offences are acknowledged at sentencing without additional punishment). All offences were committed while the appellant was on bail for substantially similar earlier offences.

The sentencing judge, Ainslie-Wallace DCJ, imposed an overall effective sentence of 4 years and 6 months with a non-parole period of 3 years. Her Honour found special circumstances, based on the appellant's need for support, supervision and assistance finding employment on release, and adjusted the statutory ratio between the non-parole period and the balance of term accordingly. A 15 per cent utilitarian discount was applied for the guilty pleas.

The appellant did not challenge the individual sentences. His complaint was directed at the overall effect of the sentences, particularly the way the sentencing judge handled special circumstances in the context of an accumulation on earlier sentences imposed by Norrish DCJ in 2005.

  • Whether the sentencing judge erred in her approach to totality and in failing to give full effect to her finding of special circumstances, having regard to the accumulation on the earlier sentences imposed by Norrish DCJ.
  • Whether a different, less severe sentence was warranted in the circumstances.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Price J (with whom Allsop P and Johnson J agreed) found no error in the sentencing judge's exercise of discretion.

Central to the appeal was the argument that the sentencing judge should have matched, or maintained the proportion of, the ratio adjustment made by Norrish DCJ in the earlier proceedings. Norrish DCJ had set a non-parole period of 50 per cent of the total sentence, which Price J described as generous to the appellant. The Court held that the sentencing judge was neither obliged to adjust the statutory ratio to the same extent as Norrish DCJ, nor required to preserve the balance of term his Honour had set. Matching that 50 per cent ratio in the current matter would have produced a non-parole period that, in Price J's view, would not have appropriately reflected the seriousness of the offending.

The Court noted the serious nature of the offences and the significant aggravating factor that they were committed on conditional liberty for substantially similar offences. While an accumulation of sentences can itself constitute special circumstances, the sentencing judge was not obliged to find special circumstances on that basis. Price J was not persuaded that the sentencing judge had overlooked this consideration, observing that it was apparent from her remarks that she had carefully reflected on the question of special circumstances. The balance of term of 1 year and 6 months was found to adequately address the appellant's identified needs on release.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court is not obliged to adjust the statutory ratio between the non-parole period and balance of term to the same extent as a prior sentencing court, even where that prior court's adjustment was made in related proceedings.
  • Where an accumulation of sentences may itself constitute special circumstances, the court retains a discretion as to whether to make that finding; it is not compelled to do so.
  • The Court of Criminal Appeal confirmed that the seriousness of offending and the fact that offences were committed on conditional liberty are legitimate considerations that bear on the extent of any adjustment to the statutory ratio.
  • No error is established merely because a sentencing judge did not address a particular consideration expressly in remarks on sentence, provided the overall exercise of discretion is consistent with that consideration having been taken into account.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that sentencing involves the exercise of a discretion, and an appellate court will not intervene simply because a different approach might have been open.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 188(1)(a) (disposing of stolen motor vehicle)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2) (statutory ratio between non-parole period and balance of term)
- Drug Misuse and Trafficking Act 1985 (NSW) s 24A (possession of precursor intended for use in manufacture of prohibited drug)

Cases:
- Cicekdag v Regina [2007] NSWCCA 218
- Mill v The Queen (1988) 166 CLR 59
- R v Close (1993) 31 NSWLR 743
- R v Fidow [2004] NSWCCA 172
- R v MMK [2006] NSWCCA 272
- R v M.A.K, R v M.S.K [2006] NSWCCA 381
- R v Simpson (2001) 53 NSWLR 704
- Regina v Cramp [2004] NSWCCA 264