Parente v R

Case [2017] NSWCCA 284


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Parente v R [2017] NSWCCA 284
Hearing dates: 4 October 2017
Decision date: 29 November 2017
Before: Macfarlan JA; Hoeben CJ at CL; Leeming JA; Johnson J; R A Hulme J
Decision:

1. Leave to appeal against sentence allowed.
2. Appeal dismissed.

Catchwords:

SENTENCING – appeal against sentence – three drug supply offences – where sentencing judge applied the Clark “principle” that drug trafficking in any substantial degree should lead to a custodial sentence unless there are exceptional circumstances – whether Clark “principle” incompatible with judicial sentencing discretion – consideration of general sentencing principles – Clark “principle” prescriptive not descriptive – no statutory root – judicially created constraint on the sentencing discretion – Clark “principle” inconsistent with sentencing discretion and should no longer be applied

 

SENTENCING – appeal against sentence – error established in judge applying Clark “principle” – re-exercise of sentencing discretion – no lesser sentence warranted in law

 

SENTENCING – general principles – drug supply cases – significance of deterrence and protection of the community – attention to legislative guideposts of high maximum penalties and standard non-parole periods – cases of drug dealing to a substantial degree may ordinarily require custodial sentences – role of s 5(1) Crimes (Sentencing Procedure) Act 1999

  SENTENCING – offender a solicitor – whether sentencing judge failed to take into account loss of ability to practise law – prominent feature of case – whilst not explicitly referred to as extra-curial punishment, no doubt sentencing judge had regard to matter
Legislation Cited: Community Service Orders Act 1979 (NSW)
Crimes (Administration of Sentences) Regulation 2014 cl 186
Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 7, 8, 9, 10, 10A, 12, 15, 54B(4)
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
Crimes Act 1900 (NSW) s 558
Criminal Appeal Act 1912 (NSW) ss 3, 6(3)
Drug Misuse and Trafficking Act 1985 (NSW)
Periodic Detention of Prisoners (Amendment) Act 1989 (NSW)
Periodic Detention of Prisoners Act 1981 (NSW)
Cases Cited: Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 91 ALJR 1063
Douar v R [2005] NSWCCA 455; 159 A Crim R 154
EF v R [2015] NSWCCA 36
Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
Forti v R [2016] NSWCCA 127
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kearsley v R [2017] NSWCCA 28
Kenny v R [2010] NSWCCA 6
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Michael v R [2014] NSWCCA 2
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Oudomvilay v R [2006] NSWCCA 275
Polley v R [2015] NSWCCA 247
R v Anderson (Court…

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AGLC
Parente v The Queen [2017] NSWCCA 284
Case
[2017] NSWCCA 284
Decision Date

CaseChat Overview and Summary

In the case of Parente v R, the appellant was convicted of three drug supply offences and appealed against his sentence. The appeal was heard by the High Court of Australia, which was required to determine whether the sentencing judge had erred in applying the so-called "Clark principle" to impose a custodial sentence. The "Clark principle" is a judicially created guideline that suggests that drug trafficking in any substantial degree should lead to a custodial sentence unless there are exceptional circumstances. The appellant argued that the principle was inconsistent with the judicial sentencing discretion provided by statute.

The court found that the "Clark principle" was not rooted in statute and was merely a judicially created constraint on sentencing discretion. It was not prescriptive but descriptive, and its application could be inconsistent with the sentencing discretion provided by statute. The court concluded that the principle should no longer be applied as it was inconsistent with the sentencing discretion provided by statute. The court then re-exercised its sentencing discretion and found that no lesser sentence was warranted in law. The court emphasised the significance of deterrence and protection of the community in drug supply cases, and noted that cases of drug dealing to a substantial degree may ordinarily require custodial sentences.

The court also considered whether the sentencing judge had failed to take into account the appellant's loss of ability to practise law as a result of his conviction. The court found that the sentencing judge had not explicitly referred to this as an extra-curial punishment, but it was clear that the matter had been taken into account. The court noted that the appellant's profession as a solicitor was a prominent feature of the case, and the loss of his ability to practise law was a significant consequence of his conviction. However, the court found that this did not warrant a lesser sentence in this case.

The final orders of the court were that the appeal against sentence be dismissed, and the original sentence of imprisonment be upheld. The court emphasised the importance of deterrence and protection of the community in drug supply cases, and the need for custodial sentences in cases of drug dealing to a substantial degree. The court also noted the significance of the appellant's loss of ability to practise law, but found that this did not warrant a lesser sentence in this case.

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