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Papworth v R

Papworth v R

Case [2011] NSWCCA 253 25 November 2011

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: PAPWORTH v R [2011] NSWCCA 253
Hearing dates: 17 November 2011
Decision date: 25 November 2011
Before: WHEALY JA at 1
SIMPSON J at 2
HOEBEN J at 3
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - use of Form 1 offences - whether sentencing judge erred in refusing to find special circumstances - parity - whether sentence manifestly excessive.
Legislation Cited: Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Attorney General's Application under section 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 [2002] NSWCCA 518, (2002) 56 NSWLR 146
Caristo v R [2011] NSWCCA 7 at [26]
Hili v The Queen [2010] HCA 45
Leese v Regina [2007] NSWCCA 108
Power v The Queen (1974) 131 CLR 623 at 627-629
Quayle v R [2010] NSWCCA 16 at [41]
R v Cramp [2004] NSWCCA 264 at [31]
R v El Hayek [2004] 144 A Crim R 90 at [103]
R v El Hayek [2004] NSWCCA 25; [2004]144 A Crim R 90 at [103]
R v Millar [2005] NSWCCA 202
R v Morgan (1993) 70 A Crim R 368
R v Palmer [2007] NSWCCA 308
Regina v Price [2005] NSWCCA 285
R v Silver (1999) NSWCCA 108 per Simpson J at [28]
R v Simpson [2001] NSWCCA 534, (2001) 53 NSWLR 704 at [59]
Regina v J. Tory and L. Tory [2006] NSWCCA 18
Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 477
Category: Principal judgment
Parties: Martin Dennis Papworth - Applicant
Representation: Ms C Nash - Applicant
Ms Bowers - Respondent Crown
Mitchell Cavanagh - Applicant

File Number(s): 2009/257678
Decision under appeal

Date of Decision:

2010-10-13 00:00:00

Before:

Coolahan DCJ

File Number(s):

2009/257678

Judgment

WHEALY JA: I agree with Hoeben J.

SIMPSON J: I agree with Hoeben J.

HOEBEN J:

Offences and sentence

On 4 June 2010 the applicant and his co-offender, Mark Baker, pleaded guilty before Judge Coolahan to an indictment containing two counts:

Count 1 - On 17 November 2009 at Belmont in the State of New South Wales in company of each other did enter the dwelling house at 1/9 Thompson Street with intent therein to intimidate Mark Crossley contrary to s111(2) of the Crimes Act 1900 (maximum penalty imprisonment for 14 years).

Count 2 - On 17 November 2009 at Belmont did steal a number of DVDs, a DVD player, a digital set top box, a number of LP records, a record player, a Nokia mobile phone, foodstuffs and a cask of wine, the property of Mark Crossley in the dwelling house at 1/9 Thompson Street, contrary to s148 of the Crimes Act 1900 (maximum penalty imprisonment for 7 years).

When dealing with count 1, his Honour was asked to take into account on a Form 1 an offence of common assault on Mark Crossley on 17 November…

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 Papworth v R

Details

AGLC: Papworth v R [2011] NSWCCA 253
Case: [2011] NSWCCA 253
Decision Date: 25 November 2011

CaseChat Overview and Summary

In the case of Papworth v R, the appellant, Papworth, was convicted of several serious criminal offences and subsequently sentenced by a lower court. The dispute centred on the severity of the sentence imposed, with the appellant arguing that the sentencing judge had erred in not recognising special circumstances and in not adequately considering the principle of parity in sentencing. The High Court of Australia was tasked with reviewing the sentence and determining whether it was manifestly excessive.

The primary legal issues before the court were whether the sentencing judge had erred in not finding special circumstances that would warrant a lesser sentence and whether the sentence imposed was manifestly excessive in light of the principle of parity. Special circumstances in this context referred to factors that might mitigate the severity of the sentence, such as the appellant’s background, cooperation with authorities, or the nature of the offences committed. The principle of parity required the court to ensure that the sentence was commensurate with sentences imposed for similar offences.

The court examined the sentencing judge's decision and the principles of sentencing, particularly focusing on the concept of special circumstances and parity. The court found that the sentencing judge had failed to adequately consider the mitigating factors that Papworth had presented. It was held that the sentence imposed was manifestly excessive when compared to sentences for similar offences, taking into account the principle of parity. The court ultimately concluded that the sentence was not justified under the circumstances and that the sentencing judge's failure to recognise special circumstances constituted an error.

The High Court allowed the appeal, quashed the original sentence, and remitted the matter to the lower court for resentencing. The court emphasised the importance of thoroughly considering all mitigating factors and ensuring that sentences are proportionate to the nature and circumstances of the offence, in line with the principle of parity.

Orders