Regina v Stevens [2000] NSWCCA 324

New South Wales Court of Criminal Appeal

CITATION : Regina v Stevens [2000] NSWCCA 324 FILE NUMBER(S) : CCA 60548/1998 HEARING DATE(S) : 10/07/2000 JUDGMENT DATE : 10 July 2000

PARTIES : Regina Neil Colin STEVENS JUDGMENT OF : Studdert J at 1; Bell J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0220; 97/11/0220; 97/11/1087 LOWER COURT JUDICIAL Kinchington DCJ OFFICER :

COUNSEL : CK Maxwell QC - Crown MC Ramage QC - Applicant SOLICITORS : SE O'Connor - Crown Stevcen Naris & Co - Applicant

LEGISLATION CITED : Crimes Act 1900 Criminal Procedure Act 1986 CASES CITED: R v Bloomfield (1998) 44 NSWLR 734 DECISION : Application for leave to appeal branted; appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60548/98

STUDDERT J BELL J

Monday, 10 July, 2000

REGINA v Neil Collin STEVENS JUDGMENT 1 STUDDERT J : I ask Justice Bell to give the first judgment. 2 BELL J : This is an application for leave to appeal against the severity of sentences imposed upon the applicant by his Honour Judge Kinchington upon an indictment containing seven counts. Count 1 charged the applicant with an offence shortly described as "use false instrument" contrary to s 300(2) of the Crimes Act 1900 ("the Act"). It carries a maximum sentence of imprisonment of ten years. In respect of this count the applicant was sentenced to a minimum term of three years imprisonment to date from 28 August 1998 and to expire on 27 August 2001. An additional term of eighteen months was specified to commence on 28 August 2001 and to expire on 27 February 2003. 3 Counts 2, 5 and 6 charged the applicant with attempting to dishonestly obtain a valuable thing by deception contrary to s. 178BA/344 of the Act. These offences carry a maximum sentence of five years imprisonment. Counts 3, 4 and 7 charged the applicant with dishonestly obtaining a valuable thing by deception contrary to s. 178BA of the Act. These offences also carry a maximum of five years imprisonment. 4 In respect of count 2 the applicant was sentenced to an identical term to that imposed on count 1. The remaining five counts were the subject of fixed term sentences which were expressed to commence on 28 August 1998 and to expire on 27 May 2000. 5 The sentencing judge also dealt with the applicant in respect of a breach of recognisance imposed by Judge Flannery in the Sydney District Court on 18 December 1992. The recognisance was conditioned upon the applicant being of good behaviour for a term of five years. This recognisance was imposed following the applicant's conviction on four counts shortly described as "obtaining property by passing valueless cheques". In relation to the breach of this recognisance his Honour imposed a sentence of six months imprisonment to commence 28 August 1998 and to expire on 27 February 1999. 6 In addition to the seven counts in the indictment the applicant asked his Honour to take into account a further ten matters which were set out in a Form 1 pursuant to s 21 of the Criminal Procedure Act 1986 (as it then stood). Each matter in the Form 1 related to an offence of dishonestly obtaining a valuable thing by deception. 7 In relation to counts 1 and 2 the applicant was arrested on 27 October 1995. He was admitted to bail. The Crown has drawn our attention to the circumstance that the tenth matter in the Form 1 was committed on 22 November 1995 and, thus, was an offence committed while on bail. The applicant was arrested subsequently on 21 February 1996 and released on bail. His liberty was subject to a residential requirement and to a condition that he report three times weekly to the officer in charge of the Campbelltown Police Station. On 17 February 1997 the bail conditions were varied by reducing the reporting requirement to once weekly. The applicant remained on bail until his remand in custody on 28 August 1998 at the conclusion of the sentence hearing. 8 The applicant was dealt with jointly with co-offenders Alfred Fischer and Merrick Price. All three were said to have been a party to a scheme involving the creation and use of false identities in order to obtain credit cards and loan facilities from various financial institutions. In the case of Fischer the offences in respect of which he appeared for sentence before his Honour covered a period between October 1994 and February 1995. Merrick Price's offences were said to have taken place between September 1994 and October 1995. The offences in respect of which the applicant pleaded guilty, including those matters which he asked to be taken into account pursuant to the Form 1, occurred between September 1994 and February 1995. 9 It is to be noted that neither of the co-offenders were charged with any offences contrary to s. 300(2) of the Act. The maximum sentence in respect of any one offence for which either Fischer or Price stood for sentence was one of five years. 10 The sentencing judge approached the matter upon the basis that the culpability of Fischer was the least of the three men and that Merrick Price was the most culpable. In terms his Honour found: "...the material before me would indicate that you" - (I interpolate that this was a reference to Merrick Price) - "were much more deeply involved than those of your two co-offenders." (p.16)