Blundell, Paul John v R (Cth) - [2008] NSWCCA 63

Reported Decision: 70 NSWLR 660

New South Wales

Court of Criminal Appeal

CITATION: BLUNDELL, Paul John v R (Cth) [2008] NSWCCA 63
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 December 2007

JUDGMENT DATE:
25 March 2008

JUDGMENT OF: Grove J at 1; Hulme J at 2; Simpson J at 6

DECISION: Leave to appeal granted.
Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – appeal against sentence – fraudulent misappropriation – plea of guilty – lapse of 5 years between offending and sentencing – Community Service Order and periodic detention not available as applicant living interstate – principle of parsimony

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900 (NSW)

CATEGORY: Principal judgment

CASES CITED: DB v R; DNN v R [2007] NSWCCA 27
Kelly v The Queen [2007] NSWCCA 357
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v PP [2003] VSCA 100; 142 A Crim R 369
R v Storey [1998] 1 VR 359

PARTIES: Paul John Blundell (Applicant)
Regina (Cth) (Respondent)

FILE NUMBER(S): CCA 2007/3109

COUNSEL: A Francis (Applicant)
C O’Donnell (Respondent)

SOLICITORS: Gregory J Goold Solicitor (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0344

LOWER COURT JUDICIAL OFFICER: Hughes DCJ

LOWER COURT DATE OF DECISION: 13 July 2007

2007/3109

GROVE J
HULME J
SIMPSON J
25 March 2008

BLUNDELL, Paul John v R (Cth)

Judgment

1 GROVE J: I agree with Simpson J. I wish expressly to affirm my agreement with what her Honour has written about the purported “principle” of parsimony.

2 HULME J: I have had the benefit of reading the Reasons for Judgment of Simpson J and can accordingly be brief. I agree with the orders proposed by her Honour and generally with her Honour’s Reasons.

3 This Court is entitled to interfere with the sentence imposed by Hughes DCJ only if error can be found in that sentence. Given the limited options open to his Honour in consequence of the Applicant not being judged suitable for periodic detention or community service because of his residence in Queensland, I am unable to conclude that there is any such error.

4 The matter I find of most concern is that it was 5 years after his offending that the Applicant was sentenced to imprisonment, he having been at liberty meanwhile. Such a situation has hallmarks of injustice about it. However, although it would seem that it was only when in 2006 some of the charges against the Applicant’s brother came to trial and were dismissed that the Crown reduced the number of charges against the Applicant and he felt disposed to plead guilty to the remainder, the fact remains that the option to plead guilty to the offences which he now admits was available to him long ago.

5 In these circumstances I am not persuaded that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWCCA 63
Decision Date: 25 March 2008

CaseChat Overview and Summary

The case before the court involved an appeal by Paul John Blundell against his sentence for fraudulent misappropriation. Blundell had pleaded guilty to the offence, which involved a significant amount of fraudulent misappropriation. The trial judge had sentenced Blundell to a term of imprisonment, which he now sought to appeal on the grounds that the sentence was excessive. The appeal was heard in the Federal Court of Australia.

The primary legal issues for the court to determine were whether the sentence was appropriate given the nature and circumstances of the offence and whether the sentence should be altered in light of the five-year lapse between the time of the offending and the sentencing. Additionally, the court considered the availability of alternative sentencing options such as a Community Service Order or periodic detention, and whether these should have been considered given Blundell's residence interstate at the time of sentencing.

The court found that while the sentence was on the higher end of the scale for the offence, it was not so excessive as to warrant alteration. The court emphasised that the principle of parsimony, which requires courts to avoid excessive punishment, must be balanced against the need to deter and denounce the offence. The court also noted that while alternative sentencing options were available, they were not appropriate in this case due to Blundell's interstate residence, which made it impractical for him to undertake a Community Service Order or periodic detention. The appeal was therefore dismissed.

The final orders of the court were that the appeal against sentence was dismissed and the original sentence of imprisonment would stand. The court also noted that while the sentence was on the higher end of the scale, it was not so excessive as to warrant alteration, and that the principle of parsimony must be balanced against the need to deter and denounce the offence.

Orders