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Court of Criminal Appeal 19 February 2025

Stines v R

[2025] NSWCCA 11

Assault & violenceTheft & property
CRIME APPEALS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Stines v R [2025] NSWCCA 11
Court: Court of Criminal Appeal, New South Wales
Date: 19 February 2025
Judge(s): Ward P, McHugh JA, Rothman J (Rothman J delivering the principal judgment)

Background

The applicant pleaded guilty in the Local Court to aggravated robbery under s 95(1) of the Crimes Act 1900 (NSW), a charge carrying a maximum penalty of 20 years' imprisonment. The offence involved the applicant riding his bicycle toward a 61-year-old woman near Casula train station, pushing her, and wresting her shoulder bag away. The victim fell, suffered a mild concussion, a grazed elbow, and a bruised finger, and was taken to hospital.

The offence was committed on 17 September 2022 while the applicant was on parole for a series of similar offences committed in 2018, including an aggravated robbery with wounding and a robbery. His parole was revoked with effect from the date of the new offence. The District Court sentenced him to 5 years and 3 months' imprisonment with a non-parole period of 3 years and 4 months, commencing 17 September 2022.

The applicant sought leave to appeal that sentence on two grounds. He had also been the subject of an earlier Court of Criminal Appeal decision in 2019 concerning the 2018 offences, which canvassed a prior assault on the applicant by a correctional officer resulting in a broken jaw, a surgically inserted metal plate, and ongoing difficulties in custody.

  • Whether the sentencing judge failed to consider the hardship of the applicant's incarceration, including the effect of a prior assault by a correctional officer and subsequent prison conditions, on the onerousness of serving his sentence.
  • Whether the sentence imposed was manifestly excessive, such that a different sentence was warranted in law.

Decision

Ground 1: Failure to consider hardship of incarceration

Rothman J found that the sentencing judge had expressly referred to the relevant paragraphs of a psychiatric report during her ex tempore remarks. That reference incorporated the applicant's mental condition, including post-traumatic stress disorder (PTSD), and its effect on the onerousness of his imprisonment. The mere fact that the reasons were delivered ex tempore (that is, given orally without extended written preparation) did not mean the judge had failed to take the material into account. Courts read reasons as a whole and do not subject them to minute textual criticism.

The applicant had also raised, through the earlier CCA judgment, the circumstances of the prison assault. However, Rothman J held that the evidence before the sentencing judge did not require a finding that the assault by officers was the substantial cause of his PTSD, nor that such a cause created additional hardship flowing from the current sentence. Critically, the applicant was represented by counsel at the sentencing hearing and no specific submission to that effect was put to the judge. Ground 1 failed.

Ground 2: Manifest excess

Rothman J applied the well-established principle from House v The King that a sentence will only be set aside if it discloses identifiable error in the exercise of the sentencing discretion, or if it is "plainly unjust" or "unreasonable." The applicant advanced three particulars of alleged unfairness, including a totality argument. Rothman J found the applicant's totality calculations were flawed because they included a period during which the applicant was at liberty on parole, rather than in custody. When the calculation was corrected, the ratio of the non-parole period to the overall incarceration period was consistent with, and in some respects more favourable to the applicant than, the earlier sentences. Notably, despite the applicant's escalating pattern of offending, the head sentence imposed matched that imposed for the earlier, more serious matters. No identifiable error and no manifest injustice were established. Ground 2 also failed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge does not fail to consider hardship of incarceration simply because reasons are delivered ex tempore, provided the judge expressly references the relevant material, such as specific paragraphs of a psychiatric report.
  • Where an applicant is represented by counsel and no particular submission is put to the sentencing judge, an appellate court will be slow to find error in the judge's failure to address that argument independently.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the threshold for manifest excess requires the sentence to be "plainly unjust" or "unreasonable," not merely different from what the appellate court might have imposed. This reflects the established standard from House v The King.
  • Totality calculations in cumulative sentencing must exclude periods during which an offender was at liberty on parole, rather than serving time in custody. Including such periods will distort the ratio between non-parole periods and head sentences.
  • Notwithstanding an escalating pattern of offending, a sentencing court may impose a head sentence equivalent to that imposed for prior, more serious matters, and such an outcome does not of itself reveal manifest error.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 95(1) (aggravated robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)

Cases
- House v The King (1936) 55 CLR 499
- Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Stines v R [2019] NSWCCA 115 (earlier CCA decision concerning the applicant's 2018 offences)
- Zreika v R [2012] NSWCCA 44