R v Stephen [2003] NSWCCA 377

R v Stephen [2003] NSWCCA 377

The sentencing judge erred in principle by not expressly following the required two-step approach and by failing to fix or give reasons for not fixing a non-parole period, but the head sentence of three years imprisonment to be served by periodic detention was appropriate. The applicant's plea and rehabilitative steps warranted a non-parole period, fixed at 75 per cent of the head sentence, so the appeal was allowed and the sentence was quashed and reimposed with a non-parole period.

Jurisdiction
Australia
Judgment Date
01 December 2003
Procedural Posture
Criminal Appeal Against Severity of Sentence / Application for Leave to Appeal Against Sentence
Outcome
Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced to three years imprisonment by periodic detention with a non-parole period of two years and three months.
Legal Topics
['receiving Stolen Property' 'form 1 Offence' 'non Parole Period' 'periodic Detention' 'parity Between Co Offenders' 'two Step Sentencing Approach']
['criminal Law' 'sentencing'] ['receiving Stolen Property' 'form 1 Offence' 'non Parole Period' 'periodic Detention' 'parity Between Co Offenders' 'two Step Sentencing Approach']

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Procedural Posture

Criminal Appeal Against Severity of Sentence / Application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ["Whether the sentencing judge erred in not specifying a non-parole period for the applicant's sentence." 'Whether the sentencing judge failed to give reasons for not fixing a non-parole period as required by the Crimes (Sentencing Procedure) Act 1999.' 'Whether the sentencing judge erred by determining the sentence by reference to parity without first fixing the appropriate term of imprisonment and then considering whether it should be served otherwise than by full-time custody.' 'Whether a lesser sentence involving a non-parole period was warranted in law under s 6(3) of the Criminal Appeal Act 1912.']

Ratio Decidendi

The sentencing judge erred in principle by not expressly following the required two-step approach and by failing to fix or give reasons for not fixing a non-parole period, but the head sentence of three years imprisonment to be served by periodic detention was appropriate. The applicant's plea and rehabilitative steps warranted a non-parole period, fixed at 75 per cent of the head sentence, so the appeal was allowed and the sentence was quashed and reimposed with a non-parole period.

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced to three years imprisonment by periodic detention with a non-parole period of two years and three months.

Orders

  • ['Grant leave to appeal.' 'Appeal allowed and sentence imposed in the District Court quashed.' 'In lieu thereof the applicant be sentenced in relation to the count of receiving, taking into account the Form 1 offence, to imprisonment for three years to commence on 18 February 2003 and to expire on 17 February 2006,...