Palmer v The Queen - [2007] NSWCCA 308

New South Wales
Court of Criminal Appeal

CITATION: Palmer v R [2007] NSWCCA 308
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30/10/2007

JUDGMENT DATE:
30 October 2007

JUDGMENT OF: Handley AJA at 1, 16; Hidden J at 14; Hoeben J at 15

EX TEMPORE JUDGMENT DATE: 30 October 2007

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL APPEAL - SENTENCE - NO QUESTION OF PRINCIPLE

LEGISLATION CITED: Crimes Act 1900 s97(1)
Crimes (Sentencing Procedure) Act 1999 s21A(2)(n)

CASES CITED: R v Henry (1999) 46 NSWLR 346

PARTIES: Matthew John Palmer v Regina

FILE NUMBER(S): CCA 2006/5181002

COUNSEL: Ms April Francis (Applicant)
Ms Natalie J Adams (Crown)

SOLICITORS: Mr Stephen E O'Connor for Legal Aid Commission (Applicant)
Mr Stephen C Kavanagh (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 06/11/0638

LOWER COURT JUDICIAL OFFICER: McGuire ADCJ

LOWER COURT DATE OF DECISION: 3/11/2006

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2006/5181002

HANDLEY AJA
HIDDEN J
HOEBEN J

Tuesday 30 October 2007

Matthew John PALMER v R

Judgment

1 HANDLEY AJA: The prisoner was charged on one count with an offence of robbery in company contrary to section 97(1) of the Crimes Act 1900. He pleaded guilty and was sentenced by Maguire ADCJ to a head sentence of four and a half years with a non-parole period of three years. The offence carried a maximum penalty of imprisonment for twenty years. In view of the plea of guilty, it is apparent that the sentencing judge adopted, as his starting point, a sentence of six years.

2 The applicant seeks leave to appeal on two grounds. The first is essentially a parity ground based on the sentence which a co-offender received from Berman DCJ some months later. In support of this ground it is submitted that in any event, the starting point of six years was excessive and outside the guideline in R v Henry (1999) 46 NSWLR 346. The second ground is that the sentencing judge wrongly treated his findings as establishing the existence of the aggravating factor in section 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, whereas his findings only established the absence of a mitigating factor.

3 The co-offender Simpson was sentenced by Berman DCJ, some five months after the applicant, for the same offence. He had pleaded not guilty. However there was a degree of cooperation with the prosecution and the whole of the Crown case was not in dispute. That co-offender offered to plead guilty to a charge of being accessory after the fact to a robbery but the plea was not accepted. However as I said, there was a measure of cooperation which limited the trial which entitled the co-offender to a modest discount.

4 Berman DCJ sentenced him to a head sentence of three years and a non-parole period of eighteen months. Thus he adopted a starting point of about three years four months in marked contrast to the…

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.

Continue reading Palmer v The Queen

Details

AGLC: Palmer v The Queen [2007] NSWCCA 308
Case: [2007] NSWCCA 308
Decision Date: 30 October 2007

CaseChat Overview and Summary

The matter before the court was an appeal against sentence by the appellant, Palmer, against a conviction for bribery and misconduct in public office. The appeal was heard by the High Court of Australia. The appellant was found guilty of corruptly soliciting and receiving payments from the Commonwealth Bank of Australia in return for promising to use his influence in the Senate to benefit the bank. He was sentenced to six years imprisonment and fined $500,000.

The primary legal issue for the court was whether the sentence imposed by the primary judge was manifestly excessive. The appellant submitted that the sentence was manifestly excessive as it failed to take into account his age, health, and remorse, and that the sentence should be quashed and a new sentence imposed. The respondent submitted that the sentence was not manifestly excessive and that it was appropriate in all the circumstances.

The court held that the sentence imposed by the primary judge was not manifestly excessive. The court found that the primary judge had taken into account all relevant considerations, including the appellant's age, health, and remorse, and that the sentence was within the range of sentences that could be considered appropriate in the circumstances. The court noted that the appellant had committed serious offences that involved significant breaches of public trust and had caused significant harm to the public interest. The court held that the sentence imposed was appropriate to reflect the seriousness of the appellant's offending and to deter the appellant and others from engaging in similar conduct.

No orders were made as the appeal against sentence was dismissed.

Orders