Stoeski v R [2008] NSWCCA 230

New South Wales Court of Criminal Appeal

CITATION: Stoeski v R [2008] NSWCCA 230 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10 September 2008

JUDGMENT DATE: 14 October 2008

JUDGMENT OF: Allsop P at 1; Johnson J at 2; Price J at 3

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal Law - sentencing - special circumstances - extent of adjustment to statutory ratio - sentencing discretion

Crimes Act 1900 s 188(1)(a) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 44(2) Drug Misuse and Trafficking Act 1985 s 24A

CATEGORY: Principal judgment

Cicekdag v Regina [2007] NSWCCA 218 Mill v The Queen (1988) 166 CLR 59 R v Close (1993) 31 NSWLR 743 CASES CITED : R v Fidow [2004] NSWCCA 172 R v MMK [2006] NSWCCA 272 R v M.A.K, R v M.S.K [2006] NSWCCA 381 R v Simpson (2001) 53 NSWLR 704 Regina v Cramp [2004] NSWCCA 264

PARTIES: Stephen Stoeksi

FILE NUMBER(S): CCA 2007/5561

COUNSEL: P Hamill SC (applicant) L Wells (respondent)

SOLICITORS: Nyman Gibson Stewart (applicant) S Kavanagh Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0289

LOWER COURT JUDICIAL OFFICER: Ainslie Wallace DCJ

LOWER COURT DATE OF DECISION: 29 November 2007

IN THE COURT OF CRIMINAL APPEAL 2007/5561

ALLSOP P JOHNSON J PRICE J 14 October 2008 STOESKI v R Judgment 1 ALLSOP P: I agree with Price J. 2 JOHNSON J: I agree with Price J. 3 PRICE J: The applicant seeks leave to appeal against the severity of the sentences imposed upon him in the District Court on 29 November 2007 by Ainslie-Wallace DCJ (the sentencing Judge). He had pleaded guilty to an indictment containing three counts, being one count of possession of a pre-cursor, pseudoephedrine, intended by him for use in the manufacture by another person of a prohibited drug namely methylamphetamine contrary to s 24A of the Drug Misuse and Trafficking Act 1985 and two counts of disposing of a stolen motor vehicle contrary to s 188(1)(a) of the Crimes Act 1900. 4 An offence contrary to s 24A of the Drug Misuse and Trafficking Act is punishable by imprisonment for 10 years. An offence contrary to s 188(1)(a) of the Crimes Act is punishable by imprisonment for 12 years. 5 Two offences on a Form 1, namely an offence of unlawfully obtained goods on premises and an offence of knowingly dealing with proceeds of crime were taken into account by the sentencing Judge on the sentence imposed for count one. 6 The applicant was sentenced on the first count to imprisonment with a non-parole period of 2 years to commence on 17 October 2008 and to conclude on 16 October 2010. A balance of term of 1 year 6 months to conclude on 16 April 2012 was set. On the second count a fixed term of imprisonment of 2 years commencing on 17 October 2007 and concluding on 16 October 2009 was imposed. For the third count, the applicant was sentenced to a fixed term of imprisonment of 2 years commencing on 17 October 2008 and concluding on 16 October 2010. The overall effective sentence was 4 years 6 months commencing on 17 October 2007 and concluding on 16 April 2012 with a non-parole period of 3 years concluding on 16 October 2010. The earliest date that the applicant is eligible to be released to parole is on 16 October 2010. 7 The Judge had found that the applicant was entitled to a utilitarian discount of 15 per cent for the pleas of guilty. 8 The facts of the offences for which the applicant came to be sentenced by the sentencing Judge may be shortly stated as follows: Count 1: On 2 June 2005 a pharmacy was broken into and 2,155 boxes of pseudoephedrine were stolen. The applicant came into possession of 1,011 of those boxes. When he was told by a co-offender that the tablets could be used to manufacture methylamphetamine, he sold them for $20,000. During the meeting at which he was paid, there was a discussion about whether or not he could obtain more of the precursor. Count 2: The applicant sold a co-offender a stolen Nissan SX 200 on 27 September 2005 for $3,500. It had been stolen in the early hours of 26 September 2005. Count 3: In the early hours of 25 October 2005, a Nissan SX 200 was stolen. The applicant sold the car to a co-offender for which he received $2,500. Form 1 offences: Police found $39,000 in cash in the applicant's bedroom. This was the offence of knowingly dealing with the proceeds of crime contrary to s 193B(1) of the Crimes Act. The maximum penalty for this offence is 20 years imprisonment. Police also found a portable radio which was tuned to police frequencies. It had previously been stolen from the New South Wales Fire Brigade. This was an offence contrary to s 527C of the Crimes Act which is punishable by imprisonment for 6 months. 9 The applicant was born on 5 August 1981 and was 26 years old at the time of sentence. Evidence of his subjective circumstances was before the sentencing Judge by way of the tender of a report from Sam Borenstein, a clinical psychologist, and a Probation and Parole pre-sentence report. Jody Balesini, the applicant's partner, gave evidence during the proceedings on sentence. 10 Mr Borenstein in his report described the applicant's childhood as being chaotic and dysfunctional which had led to behavioural problems from early adolescence and to criminal offending. The psychologist opined that the applicant's crimes reflected that he was stuck in adolescence and may well feel tempted to return to a lifestyle which in the past allowed for inclusion and a degree of protection within a criminal network. The applicant required, in the psychologist's opinion, careful guidance and assistance to help him reconstruct his life. Ms Balesini testified that she believed the applicant now understood that he had to change or keep returning to gaol. She was committed to the relationship but said that this was his last chance and believed that he would change. 11 The sentencing Judge accepted that the applicant since being in prison had made efforts to educate himself and had obtained qualifications in welding and metal work. Her Honour, however, was not satisfied that there was any convincing evidence that he had taken positive steps towards changing his life. There had been, her Honour noted, at least two periods in his life when he was employed and earning money. Her Honour observed that the applicant instead of persisting with this preferred "to engage in criminal activities which provided him sufficient funds to live for five years without work or financial support." (ROS at p 12-13). She was unable to conclude that the applicant was unlikely to re-offend or had good prospects of rehabilitation.