Citation: Stoeski v Regina [2014] NSWCCA 161
Court: Court of Criminal Appeal, New South Wales
Date: 15 August 2014
Judges: Hoeben CJ at CL, Adamson J (principal judgment), Bellew J
Background
The appellant was sentenced in the District Court to an aggregate term of ten years imprisonment with a non-parole period of seven years, following his conviction on eight counts and five charges on a Form 1. The offending occurred over a concentrated period between 20 July and 5 August 2011 and included acting as an accessory after the fact to an armed home invasion, stealing police equipment, conspiring to commit armed robbery (including a planned carjacking using a fake police strobe light), possessing housebreaking implements while disguised, and possessing an unauthorised firearm.
The appellant had been on parole at the time of the offending, for a prior drug-related manufacturing offence, and his parole was revoked during the commission of these offences. Conversations recorded through a police listening device installed in a stolen vehicle provided significant evidence of his role as the principal organiser across multiple criminal enterprises.
The appellant sought leave to appeal against the aggregate sentence imposed by Charteris DCJ, contending it was excessive on several grounds.
Legal Issues
- Whether the sentencing judge failed to apply the correct 25% discount when setting the aggregate sentence to reflect the plea of guilty
- Whether the aggregate sentence of ten years was manifestly excessive
- Whether the indicative sentences for Counts 1 and 4 were too high, with too great a weight given to objective seriousness and the Form 1 matters
- Whether the sentencing judge erred in his findings regarding the appellant's prospects of rehabilitation
- Whether the totality principle was correctly applied, having regard to earlier periods spent in custody
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Adamson J, with whom Hoeben CJ at CL and Bellew J agreed, found that no appealable error was established on any of the grounds advanced.
On the question of the 25% guilty plea discount, the Court found the sentencing judge had correctly applied the discount. The pre-discount starting point was 13 years and 4 months with a non-parole period of 9 years and 4 months. The arithmetic reduction produced the imposed aggregate of ten years and non-parole period of seven years. The Court confirmed that the requirement to state the pre-discount starting point applied to aggregate sentences under s 53A of the Crimes (Sentencing Procedure) Act 1999, even though the statute does not expressly mandate indicative sentences for each count within an aggregate. The sentencing judge had provided indicative sentences, which the Court accepted were appropriate tools to inform the construction of the aggregate.
On the indicative sentences for Counts 1 and 4, the Court found no error. The indicative sentence of 7.5 years for Count 4 (conspiracy to commit armed robbery, incorporating five Form 1 charges) properly reflected the gravity of an offence that involved planning a carjacking with a fake police device and explicit instructions to use violence. The Court rejected the contention that the phrase "extremely serious criminal conduct" implied the offending was in the worst conceivable category, reading it simply as conveying conduct that was very, very serious. The Court described offences designed to impersonate police or undermine police detection as "particularly heinous."
The Court found no error in the sentencing judge's assessment of rehabilitation prospects or in the application of the totality principle. The applicant's substantial criminal history, his commission of the offences while on parole, and the organised, deliberate, and premeditated character of the conduct all supported the sentence imposed. The aggregate term was not manifestly excessive.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the obligation to identify a pre-discount starting point applies equally to aggregate sentences under s 53A of the Crimes (Sentencing Procedure) Act 1999, providing a transparent basis from which a guilty plea discount is calculated.
- Indicative sentences within an aggregate sentencing exercise, while not expressly required by statute, serve a legitimate and useful function in demonstrating how the aggregate was reached and remain amenable to appellate scrutiny.
- A description of offending as "extremely serious" does not, without more, disclose appellate error by suggesting the conduct falls within the worst case category; context and fairness of construction govern the reading of such remarks.
- Offences involving the impersonation of police or interference with police detection methods attracted particular condemnation as conduct with a systemic tendency to undermine law enforcement.
- In dismissing the appeal, the Court reinforced that commission of fresh offences while on parole, combined with a substantial prior criminal history and highly organised offending, will support findings of objective seriousness at the higher end of the range.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Crimes Act 1900 (NSW), ss 97(1), 117, 154A(1)(b), 114(1)(b), 114(1)(c), 349
- Firearms Act 1996 (NSW), s 7(1)
Cases:
- Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- Carroll v The Queen [2009] HCA 13; 254 CLR 259
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- House v The King [1936] HCA 40; 55 CLR 499
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Mulato v R [2006] NSWCCA 282
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
- R v Nykolyn [2012] NSWCCA 219
- R v KB; R v JL; R v RJB [2011] NSWCCA 190
- Wong v The Queen [2001] HCA 64; 207 CLR 584