R v Stunden [2011] NSWCCA 8

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Stunden [2011] NSWCCA 8 Hearing dates: 8 December 2010 Decision date: 11 February 2011 Before: Simpson J at 1 Blanch J at 9 Garling J at 10 Decision: (1) Appeal allowed. (2) Set aside the sentence imposed in the District Court of NSW on 27 August 2010 in respect of the offence against s 33(1)(b) of the Crimes Act. (3) Mr Stunden is sentenced to a non-parole period of 2 years 6 months to commence from 3 September 2010, with the balance of the sentence being 2 years. The total sentence will conclude on 2 March 2015. (4) The first day upon which Mr Stunden will be eligible for release to parole is 2 March 2013. Catchwords: CRIMINAL LAW - Appeal against sentence - Appeal by Crown - Whether sentencing judge erred in making factual findings on the circumstances of the offence - Whether offender was provoked by the victim - Whether sentencing judge failed to take into account the need for personal and general deterrence - Whether no special circumstances found for departing from the statutory ratio between the non-parole period and the balance of sentence - Whether sentence is manifestly inadequate - Whether inappropriate for sentence to be served by periodic detention. Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995 Cases Cited: Director of Public Prosecutions (NSW) v Lombard [2008] NSWCCA 110 Douar v R (2005) 159 A Crim R 154 House v The King (1936) 55 CLR 49 Mirza v R [2007] NSWCCA 248 Mulato v R [2006] NSWCCA 282 Mulato v R [2006] NSWCCA 282 R v AJP [2004] NSWCCA 434 R v AS [2006] NSWCCA 309 R v Burgess [2006] NSWCCA 319 R v Cheh [2009] NSWCCA 134 R v Davies [2004] NSWCCA 319 R v Hallocoglu (1992) 29 NSWLR 67 R v Hamieh [2010] NSWCCA 189 R v JW [2010] NSWCCA 49 R v Knight; R v Vivanua (2007) 176 A Crim R 338 R v Lombard (2008) 184 A Crim R 565 R v McEvoy [2010] NSWCCA 110 R v Mitchell; R v Gallagher (2007) 177 A Crim R 94 R v Mitchell; R v Gallagher (2007) 177 A Crim R 94 R v Way (2004) 60 NSWLR 168 Category: Principal judgment Parties: Regina (Applicant) Ryan Peter Stunden (Respondent) Representation: Counsel: V. Lydiard (Applicant) M. Austin (Respondent) Solicitors: Department of Public Prosecution (Applicant) Legal Aid New South Wales (Respondent) File Number(s): CCA 2009/198594 Decision under appeal Jurisdiction: 9101 Citation: Regina v Ryan Peter Stunden Date of Decision: 2010-08-27 00:00:00 Before: Finnane DCJ File Number(s): 2009/198594