Parker & Boase v The Queen - [2010] VSCA 316

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2008 0892
S APCI 2008 0900

JASON CAMERON PARKER
	and
LEIGH STUART BOASE
	v
THE QUEEN

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JUDGES	NEAVE, HARPER JJA and ROSS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 November 2010
DATE OF JUDGMENT	25 November 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 316
JUDGMENT APPEALED FROM	R v Boase & Parker (Unreported, County Court of Victoria, Judge Howard, 5 November 2008)

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CRIMINAL LAW – Sentence – Appellants convicted of multiple counts of armed robbery and false imprisonment, and counts of theft, arson and handling stolen goods – Excessive cumulation ordered on counts of false imprisonment not involving separate incidents of criminality – Victims of some false imprisonment counts also victims of armed robbery counts – Appeal allowed – Appellants re-sentenced having regard to parity principle.

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Appearances:	Counsel	Solicitors
For the appellant (Parker)	Mr S A Moglia	Paul Vale Criminal Law
For the appellant (Boase)	Mr C G Mandy	Slades & Parsons Solicitors
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
HARPER JA
ROSS AJA:

The appellants, Leigh Stuart Boase and Jason Cameron Parker, pleaded guilty to multiple counts of armed robbery and false imprisonment, and counts of arson, theft and handling stolen goods. Mr Boase also pleaded guilty to a count of being a prohibited person in possession of an unregistered firearm. After hearing pleas in mitigation of sentence, and after a very thorough and careful analysis of the factual background thus presented to him, the learned sentencing judge sentenced the men as follows:

Count

Offence

Maximum term/fine

Sentence (Boase)

Cumulation (Boase)

Sentence (Parker)

Cumulation (Parker)

Presentment C0605483.1

4

Armed robbery

25 years

7 years

1 year

N/A

N/A

5

False imprisonment

10 years

3 years

2 months

N/A

N/A

6

Armed robbery

25 years

N/A

N/A

6 years

9 months

7

False imprisonment

10 years

N/A

N/A

2 years

1 month

8

Armed robbery

25 years

7 years

Base sentence

6 years

Base sentence

9

False imprisonment

10 years

3 years

2 months

2 years

1 month

10

False imprisonment

10 years

3 years

2 months

2 years

1 month

11

False imprisonment

10 years

3 years

2 months

2 years

1 month

12

Armed robbery

25 years

7 years

1 year

6 years

9 months

13

False imprisonment

10 years

3 years

2 months

2 years

1 month

14

False imprisonment

10 years

3 years

2 months

2 years

1 month

15

Theft

10 years

2 years

3 months

2 years

3 months

16

Armed robbery

25 years

7 years

1 year

6 years

9 months

17

False imprisonment

10 years

3 years

2 months

2 years

1 month

18

False imprisonment

10 years

3 years

2 months

2 years

1 month

19

False imprisonment

10 years

3 years

2 months

2 years

1 month

20

False imprisonment

10 years

3 years

2 months

2 years

1 month

21

False imprisonment

10 years

3 years

2 months

Count	Offence	Maximum term/fine	Sentence (Boase)	Cumulation (Boase)	Sentence (Parker)	Cumulation (Parker)
Presentment C0605483.1
4	Armed robbery	25 years	7 years	1 year	N/A	N/A
5	False imprisonment	10 years	3 years	2 months	N/A	N/A
6	Armed robbery	25 years	N/A	N/A	6 years	9 months
7	False imprisonment	10 years	N/A	N/A	2 years	1 month
8	Armed robbery	25 years	7 years	Base sentence	6 years	Base sentence
9	False imprisonment	10 years	3 years	2 months	2 years	1 month
10	False imprisonment	10 years	3 years	2 months	2 years	1 month
11	False imprisonment	10 years	3 years	2 months	2 years	1 month
12	Armed robbery	25 years	7 years	1 year	6 years	9 months
13	False imprisonment	10 years	3 years	2 months	2 years	1 month
14	False imprisonment	10 years	3 years	2 months	2 years	1 month
15	Theft	10 years	2 years	3 months	2 years	3 months
16	Armed robbery	25 years	7 years	1 year	6 years	9 months
17	False imprisonment	10 years	3 years	2 months	2 years	1 month
18	False imprisonment	10 years	3 years	2 months	2 years	1 month
19	False imprisonment	10 years	3 years	2 months	2 years	1 month
20	False imprisonment	10 years	3 years	2 months	2 years	1 month
21	False imprisonment	10 years	3 years	2 months

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 Parker & Boase v The Queen

Details

AGLC: Parker and Boase v The Queen [2010] VSCA 316
Case: [2010] VSCA 316
Decision Date: 25 November 2010

CaseChat Overview and Summary

The appellants, Parker and Boase, were convicted of multiple counts of armed robbery, false imprisonment, theft, arson, and handling stolen goods. They appealed their sentences, arguing that the trial judge had erred in ordering excessive cumulation on counts of false imprisonment which did not involve separate incidents of criminality. The crux of the appeal lay in the sentencing of the appellants, specifically how the trial judge had treated the counts of false imprisonment in relation to the armed robberies and other crimes.

The legal issue before the court was whether the trial judge had correctly applied the principles of sentencing in relation to the counts of false imprisonment. The appellants argued that the counts of false imprisonment were not independent of the armed robberies and should not have attracted separate sentences, thus leading to an excessive cumulation. The court had to determine whether the trial judge had erred in his application of the principles of sentencing and whether the sentences imposed were disproportionate.

The court found that the trial judge had indeed erred in his sentencing approach by treating the counts of false imprisonment as separate incidents of criminality when they were not. The victims of some false imprisonment counts were also victims of the armed robbery counts. Therefore, the court held that the trial judge should have applied the parity principle, ensuring that the sentences for the false imprisonment counts did not cumulatively exceed the sentence for the armed robberies. The court allowed the appeal and re-sentenced the appellants, ensuring that the sentences reflected the proper application of the parity principle.

The final orders of the court were to allow the appeal, set aside the original sentences, and re-sentence the appellants with proper regard to the parity principle. The court emphasised that the sentences for the false imprisonment counts should not cumulatively exceed the sentences for the armed robberies, ensuring that the overall punishment was proportionate and just.

Orders