Regina v Corey Styman [2005] NSWCCA 129

New South Wales Court of Criminal Appeal

CITATION: Regina v Corey Styman [2005] NSWCCA 129

HEARING DATE(S): 23 March 2005

JUDGMENT DATE: 11 April 2005

JUDGMENT OF: McColl JA at 1; Barr J at 2; Johnson J at 31

DECISION: Leave to appeal granted. Appeal dismissed.

PARTIES: Regina, Corey Styman

FILE NUMBER(S): CCA 2004/3291

E Wilkins COUNSEL: H Cox

S Kavanagh SOLICITORS: Legal Aid Commission of New South Wales

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0375

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/3291

McCOLL JA BARR J JOHNSON J

11 April 2005 REGINA v COREY STYMAN Judgment 1 McCOLL JA: I agree with Barr J. 2 BARR J: This is an application for leave to appeal against a sentence imposed in the District Court. On 27 November 2003 the applicant pleaded guilty to the offence of being an accessory before the fact of an armed robbery. Delaney DCJ sentenced him to a non-parole period of one year and six months, commencing on 5 May 2003, and a balance of sentence of one year and six months, expiring on 4 May 2006. His Honour directed the release of the applicant on parole on 4 November 2004. 3 On 9 May 2003 the applicant supplied a blood-filled syringe to another person to enable her to rob a twelve-year-old schoolgirl of a mobile telephone while she was on the train travelling home from school. The co-offender sat beside the complainant on the train and asked whether she had a telephone. The complainant said that she did not. The co-offender persisted, taking out the syringe and placing it between her leg and the complainant's leg. She said that she would give the complainant hepatitis if she did not hand over her mobile telephone. The complainant was terrified and parted with her telephone. The robber left the train at a railway station and the applicant, who had remained nearby, followed her. Later on, police stopped the two of them and spoke to them. In a bum bag carried by the co-offender was the complainant's mobile telephone. The applicant's SIM card was found installed in the telephone. The applicant was charged with the robbery and pleaded not guilty. He was committed to the District Court for trial. On the day I have mentioned the Crown, which had charged him in the alternative with being an accessory before the fact of the robbery, indicated for the first time that it was prepared to accept a plea of guilty to that charge in discharge of the indictment. So the matter was disposed of. 4 The first ground of appeal asserts that his Honour erred in increasing the parole period from six months to eighteen months as a result of finding special circumstances. Of course, extension of the parole period of a sentence is not of itself erroneous. The complaint is that in extending the period of parole his Honour imposed a longer overall sentence than he otherwise would have imposed. 5 The applicant was called up for sentence not long after s44 Crimes (Sentencing Procedure) Act was amended and there was some debate about how his Honour ought to give effect to the amended section. Before his Honour pronounced sentence there was this exchange between his Honour and the solicitor for the applicant - HIS HONOUR: It is necessary, because of the date of the offence, the Court set a non-parole period first in the sentencing procedure. VERTIGAN: That is correct. HIS HONOUR: What is the effect, you say, briefly of the amendments to section 44 as to the manner in which the Court should go about the sentencing process, and is there any change in that process as a result of those amendments other than nominating the non-parole period beforehand rather than stating a head sentence first, and then the non-parole period. This is a matter of some debate I understand. VERTIGAN: Yes it is, and hopefully we will get a decision at some stage that sorts it out one way or the other. Your Honour I think the position must be, particularly when one takes into account the concept of special circumstances, that the effective manner of sentencing is unchanged. If it was that, in fact, one -- HIS HONOUR: It has been argued by some that indeed now those who appear on behalf of accused persons will be seeking that there be no special circumstances -- VERTIGAN: Indeed. HIS HONOUR: --found, and indeed the Crown will be arguing the special circumstances. VERTIGAN: Well that would be the case if the section were to be read that, in fact, it's a non-parole period imposed first. That would result in a ludicrous situation, that where the court found special circumstances, persons who were in need of that supervision will be subject to the risk of a longer sentence than the persons who don't. HIS HONOUR: Absolutely correct, and that is indeed the debate which I understand has been certainly aired before me, and has been mentioned in some documents circulating amongst the profession. VERTIGAN: Well it seems difficult to imagine that Parliament ever intended that that be the effect of the section. HIS HONOUR: I haven't had a look at the second reading speech about this, but it certainly is a worrying matter which I try to raise with all those who were appearing for persons who are charged with the offences occurring on the date after the commencement of that Legislation, to make sure that at least the issue is discussed in a way that it could not be said it was overlooked should it be necessary that the matter go to the Court of Criminal Appeal for any reason. VERTIGAN: Certainly. It seems, I mean this is a case where I would say special circumstances do exist. HIS HONOUR: I might be tempted to agree with you. VERTIGAN: But it seems an extraordinary proposition that if your Honour sentences in the usual way, that the Crown could argue because of the section, there was – an inadequacy appeal could be lodged, and the reverse would be if the accused was given a greater head sentence as a result, he would be seeking to have that corrected. HIS HONOUR: Well I don't know the answer. VERTIGAN: Your Honour in my submission what the section would seem to be intended to ensure was that, particularly in circumstances of special circumstance, that the court focus on the non-parole period with a view to ensuring it doesn't attract a non-parole period that is less than the objective seriousness of the offence. I think that was arguably what the intention was, not to change the manner in which sentences were imposed, but to ensure that the non-parole period was never reduced to that which could be said to be inadequate. 6 During his remarks on sentence his Honour said this - I indicate that I propose that there should be a non-parole period of 18 months to commence on 5 May 2003. I propose there being special circumstances found to (sic) in lieu of the statutory period of one-third of the non-parole period to direct that there be an additional period of 18 months to allow for his rehabilitation whilst on parole. 7 In pronouncing sentence his Honour said this - I sentence you to a non-parole period of 18 months to commence on 5 May 2003 and expire on 4 November 2004. I specify an additional period in excess of the statutory period to commence on 5 November 2004 and to expire on 4 May 2006.