John Barrington Parker v The Queen - [2001] FCA 409

FEDERAL COURT OF AUSTRALIA
John Barrington Parker v The Queen [2001] FCA 409
CATCHWORDS
CRIMINAL LAW – sentencing – sexual intercourse without consent – whether sentencing judge’s errors rendered the sentence defective - not - whether sentence manifestly excessive – not – appeal dismissed.
Crimes Act 1900 (ACT), ss 429A, 454
R v Boudelah and Charlston (1991) 28 FCR 176
Dinsdale v R [2000] HCA 54; (2000) 175 ALR 315; (2000) 74 ALJR 1538
Short v R (1994) 49 FCR 556
R v Gell (unreported, 25 June 1998, ACTSC, Crispin J)
JOHN BARRINGTON PARKER v THE QUEEN
A72/2000
BEAUMONT ACJ, HIGGINS and GYLES JJ
DATE: 12 APRIL 2001
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A72 of 2000

ON APPEAL FROM THE CHIEF JUSTICE OF THE SUPREME COURT OF THE AUSTRAIAN CAPITAL TERRITORY

JUDGES:

BEAUMONT ACJ, HIGGINS AND GYLES JJ

DATE OF ORDER:

12 APRIL 2001

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
The appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRAILAN CAPITAL TERRITORY DISTRICT REGISTRY

A72 of 2000

BETWEEN:

JOHN BARRINGTON PARKER
Appellant

AND:

THE QUEEN
Respondent

JUDGES:

BEAUMONT ACJ, HIGGINS AND GYLES JJ

DATE:

12 APRIL 2001

PLACE:

CANBERRA

REASONS FOR JUDGMENT
THE COURT:

On 16 October 2000, the appellant was found guilty by a jury of an offence charged on indictment that he:
“ . . .on the 7^th day of September 1995 at Canberra in the Australian Capital Territory . . .did engage in sexual intercourse with Colleen Burnell without her consent and knowing she did not consent.”
The appellant was, on 17 October 2000, sentenced by the trial judge, Miles CJ, to eight years imprisonment. A non-parole period of five years was fixed. There having been no previous time in custody, the sentence was expressed to commence on 17 October 2000.
Despite the fact that the appellant had, during the trial, denied his guilt, giving sworn evidence that he had not been the person who committed the crime, this appeal was confined, from its inception on 2 November 2000, to the severity of the sentence imposed.
After hearing sentencing submissions proffered on 16 October 2000, the Chief Justice sentenced the appellant the next day. The appellant declined the opportunity for an adjournment for the purpose of preparation of a pre-sentence report or any other material which might have assisted the Chief Justice on sentencing.
The only material additional to the evidence given at trial was a Victim Impact Statement dated 27 September 1999 and a prior police record relating to the appellant which was tendered without objection. He had no relevant criminal history in his previous 42 years of life. There were only three entries:
“· Disobey red light  Offence 27/07/1982 Fine $50.00.
·     Speed  Offence 17/10/1982 Fine $50.00.
·     ACT Destroy/Damage Property        Offence 30/08/1999 Convicted with   Recognizance.”
The Chief Justice’s remarks on sentencing were as follows:
“John…

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: [2001] FCA 409
Decision Date: 12 APRIL 2001

CaseChat Overview and Summary

John Barrington Parker, the appellant, faced the Crown, represented by The Queen, in the High Court of Australia. The case centred around the appellant's sentence for sexual intercourse without consent, where the primary issue was whether the sentencing judge's errors rendered the sentence defective. The appellant argued that his sentence was manifestly excessive and that the sentencing judge had failed to consider mitigating factors appropriately. The Crown contended that the sentence was appropriate given the severity of the offence and that any errors made by the sentencing judge did not impact the overall fairness or reasonableness of the sentence.

The legal issues before the court were whether the sentencing judge's errors, if any, were significant enough to render the sentence defective and whether the sentence was manifestly excessive. The court examined whether the errors in the sentencing process were substantial enough to undermine the fairness of the sentence and if the sentence imposed was outside the range of reasonable outcomes for the offence committed. The court also considered the appellant's submission that the sentence was manifestly excessive, taking into account the principles of proportionality and the need to ensure justice is served.

In its reasoning, the court found that while there were some errors in the sentencing process, these did not materially affect the outcome. The court held that the sentence was within the range of reasonable outcomes for the offence of sexual intercourse without consent. The court emphasised the importance of the severity of the offence and the need to deter such behaviour, while also considering the appellant's background and mitigating factors. The court concluded that the sentence was not manifestly excessive and that any errors did not render the sentence defective. Consequently, the appeal was dismissed.

The final order of the court was that the appeal brought by John Barrington Parker against his sentence for sexual intercourse without consent be dismissed. The court upheld the original sentence, finding it to be fair and appropriate given the nature and circumstances of the offence.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A72 of 2000

JUDGES:	BEAUMONT ACJ, HIGGINS AND GYLES JJ
DATE OF ORDER:	12 APRIL 2001
WHERE MADE:	CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRAILAN CAPITAL TERRITORY DISTRICT REGISTRY	A72 of 2000

BETWEEN:	JOHN BARRINGTON PARKER Appellant
AND:	THE QUEEN Respondent

JUDGES:	BEAUMONT ACJ, HIGGINS AND GYLES JJ
DATE:	12 APRIL 2001
PLACE:	CANBERRA