R v Stoupe [2015] NSWCCA 175

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Stoupe [2015] NSWCCA 175 Hearing dates: 29 May 2015 Decision date: 03 July 2015 Before: Hoeben CJ at CL at [1]; Johnson J at [2]; Beech-Jones J at [134] Decision: 1. Crown appeal allowed. 2. Sentence imposed at the Parramatta District Court on 28 November 2014 is set aside. 3. In its place, the Respondent is sentenced to an aggregate sentence of imprisonment comprising a non-parole period of two years and six months commencing on 19 November 2014 and expiring on 18 May 2017, with a balance of term of one year and six months commencing on 19 May 2017 and concluding on 18 November 2018. 4. The earliest date upon which the Respondent will be eligible for release on parole is 19 May 2017. Catchwords: CRIMINAL LAW - Crown appeal - sentencing - Respondent pleaded guilty to one count of aggravated filming of a person engaged in a private act (s.91K(3) Crimes Act 1900) and three counts of aggravated indecent assault (s.61M(2) Crimes Act 1900) - victim eight year old girl - Respondent was supervisor at victim's child care centre - all offences committed by Respondent against victim at child care centre over a six-month period - Respondents prior good character not a mitigating factor by operation of s.21A(5A) Crimes (Sentencing Procedure) Act 1999 - aggregate sentence of 16 months imposed with non-parole period of eight months - offending aggravated by Respondent's position of trust and authority - aggregate sentence failed to reflect total criminality - sentence manifestly inadequate - residual discretion to resentence the Respondent exercised - appeal allowed - Respondent resentenced to aggregate head sentence of four years with non-parole period of two years and six months Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Crimes Amendment (Sexual Offences) Act 2008 Criminal Appeal Act 1912 Cases Cited: AH v R [2015] NSWCCA 51 CMB v Attorney General for New South Wales [2015] HCA 9; 89 ALJR 407 Corby v R [2010] NSWCCA 146 Everett v The Queen [1994] HCA 49; 181 CLR 295 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 House v The King [1936] HCA 40; 55 CLR 499 JM v R [2014] NSWCCA 297 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Dodd (1991) 57 A Crim R 349 R v Gavel [2014] NSWCCA 56 R v Lord [2013] NSWDC 16 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Truong v R [2013] NSWCCA 36 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 Texts Cited: --- Category: Principal judgment Parties: Regina (Appellant) Nikki Bjorn Stoupe (Respondent) Representation: Counsel: Mr PG Ingram SC (Appellant) Ms RW Burgess (Respondent)