Parker v The Queen - [2018] ACTCA 58

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Parker v The Queen
Citation:	[2018] ACTCA 58
Hearing Date:	13 November 2018
DecisionDate:	4 December 2018
Before:	Elkaim, Loukas-Karlsson JJ and Robinson AJ
Decision:	See [29]
Catchwords:	APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – manifestly excessive
Cases Cited:	CX v The Queen [2017] ACTCA 37 O’Brien v The Queen [2015] ACTCA 47
Parties:	Beau Parker (Appellant) The Queen (Respondent)
Representation:	Counsel Ms E McLaughlin (Appellant) Mr S Drumgold (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 6 of 2018
Decision under appeal:	Court: ACT Supreme Court Before: Mossop J Date of Decision: 14 February 2018 Case Title: R v Parker Citation: [2018] ACTSC 55

THE COURT:

On 14 February 2018, the appellant was sentenced by Mossop J for 16 offences to which he had previously pleaded guilty.

The appellant received a total sentence of five years, nine months and eight days. His Honour set a non-parole period of three years, expiring on 8 March 2020.

The appellant has no complaint with the individual sentence for each offence. Rather he says that the total sentence is manifestly excessive and that his Honour failed to have regard to principles of totality. These two assertions make up the two grounds of appeal. The appellant accepts that there is a degree of overlap between the grounds although success in one might not dictate success in the other.

The parties agreed that resolution of the appeal, as dictated by the relevant authorities, required an answer to the question: was the total sentence unreasonable and plainly unjust?

The individual sentences were as follows:

(a)CC 2017/8620: joint commission burglary, the offender was sentenced to six months’ imprisonment commencing on 9 March 2017 and expiring on 8 September 2017.
(b)CC 2017/8619: joint commission theft, the offender was sentenced to six months’ imprisonment commencing on 9 March 2017 and expiring on 8 September 2017.
(c)CC 2017/6378: burglary, the offender was sentenced to 11 months and seven days’ imprisonment commencing on 9 June 2017 and expiring on 15 May 2018.
(d)CC 2017/6791: theft, the offender was sentenced to nine months’ imprisonment commencing on 9 June 2017 and expiring on 8 March 2018.
(e)CC 2017/6792: theft, the offender was sentenced to nine months’ imprisonment commencing on 24 July 2017 and expiring on 23 April 2018.
(f)CC 2017/6793: theft, the offender was sentenced to nine months’ imprisonment commencing on 9 September 2017 and expiring on 8 June 2018.
(g)CC 2017/11142: burglary, the offender was sentenced to one year, one month and 15 days’ imprisonment commencing on 9 March 2018 and expiring on 23 April 2019.
(h)CC 2017/11301: theft, the offender was sentenced to one year, one month and 15 days’ imprisonment commencing on 9 March 2018 and expiring on 23 April 2019.
(i)CC 2017/12129: damage to property, the offender was sentenced to three months’ imprisonment commencing from 9 March…

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 v The Queen

Details

AGLC: Parker v The Queen [2018] ACTCA 58
Case: [2018] ACTCA 58
Decision Date: 4 December 2018

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the applicant, Parker, by the District Court of New South Wales. Parker pleaded guilty to a charge of assault occasioning actual bodily harm. The sentencing judge imposed a term of imprisonment. Parker appealed this sentence to the Court of Criminal Appeal of New South Wales, arguing that the sentence was manifestly excessive.

The central legal issue before the Court of Criminal Appeal was whether the sentence of imprisonment imposed by the sentencing judge was so disproportionate to the gravity of the offence and the circumstances of the offender as to be demonstrably unjust or unreasonable. This required the appellate court to consider the sentencing principles applicable to the offence and to assess whether the sentencing judge had erred in the exercise of their discretion.

The Court of Criminal Appeal applied the established principles for reviewing sentences, which require an appellate court to interfere only if the sentence is "manifestly excessive." The court considered the objective seriousness of the offence, the subjective circumstances of the offender, including his prior record and any mitigating factors, and the sentencing objectives of punishment, deterrence, rehabilitation, and denunciation. After reviewing the evidence and submissions, the Court found that the sentencing judge had not erred in principle and that the sentence imposed was not demonstrably unjust or unreasonable.

The appeal was dismissed.

Orders

Orders of the court

See [29]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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