Parkes v The Queen - [2013] NSWCCA 167

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Parkes v R [2013] NSWCCA 167
Hearing dates: 5 July 2013
Decision date: 18 July 2013
Before: Emmett JA at [1]
Price J at [3]
Schmidt J at [19]
Decision:
1. The appeal is upheld.
2. The sentence imposed by Syme DCJ for the sale of the prohibited firearm on 2 September 2010 (CAN H42510466/004) is quashed. In lieu thereof the appellant is sentenced for that offence to a term of imprisonment comprising of a non-parole period of 4 years 6 months commencing on 13 April 2012 and expiring on 12 October 2016 with a balance of term of 3 years commencing on 13 October 2016 and expiring on 12 October 2019.
3. All other sentences imposed by Syme DCJ are confirmed.

Catchwords: CRIMINAL LAW - appeal on sentence - firearms offences - recklessly causing grievous bodily harm - Crown concession - effect not given to finding of special circumstances - re-sentence
Legislation Cited: Crimes Act 1900 s 35(2)
Crimes (Administration of Sentences) Regulation 2008 cl 228
Firearms Act 1996 s 7(1), s 51(1A)(a)
Cases Cited: Stoeski v R [2008] NSWCCA 230
Category: Principal judgment
Parties: Daniel Robert Parkes (Applicant)
Crown (Respondent)
Representation: Counsel:
Solicitors:

File Number(s): 2010/340079 2011/222917
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-12-16 00:00:00

Before:

Syme DCJ

File Number(s):

2010/340079
2011/222917

Judgment

EMMETT JA: The question in this appeal is whether the sentencing judge erred in not giving effect to a finding made by her Honour of special circumstances. The appellant was sentenced in the District Court on two counts of possession of a prohibited firearm, two counts of selling a prohibited firearm and one count of recklessly causing grievous bodily harm. The total effective sentence imposed was imprisonment consisting of a non-parole period of six years and six months with a balance of term of two years and six months. The appellant complains that the ratio in the overall effective sentence imposed by the sentencing judge between the non-parole period and the total sentence is 72% and that that does not adequately reflect the finding of special circumstances.

I have read the reasons of Price J in draft form. I agree with the orders proposed by his Honour for the reasons proposed by him.

PRICE J: As this appeal involves a single issue which has been conceded by the Crown my reasons for upholding the appeal will be brief. The sole ground of appeal that the appellant relies on is that the sentencing judge erred in not giving effect to her finding of special circumstances. The grounds of appeal identify five other grounds, all of which have been abandoned by the appellant.

The appellant was sentenced in the District Court on 16 December 2011 as follows:

(i) Possession of a prohibited firearm on 12 August 2010 contrary to s 7(1) Firearms Act 1996; imprisonment comprising a non-parole period of 2 years commencing on 13 October 2011 and expiring on 12 October 2013…

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 Parkes v The Queen

Details

AGLC: Parkes v The Queen [2013] NSWCCA 167
Case: [2013] NSWCCA 167
Decision Date: 18 July 2013

CaseChat Overview and Summary

The appellant, Parkes, appealed against his sentence for firearms offences, including recklessly causing grievous bodily harm. The appeal was heard by the High Court of Australia. The central issue was whether the trial judge should have given effect to a finding of special circumstances, as conceded by the Crown, in determining the appropriate sentence. The appellant argued that the trial judge's failure to consider the special circumstances led to an excessive sentence.

The Court examined whether the trial judge erred in not considering the special circumstances conceded by the Crown when imposing the sentence. It was noted that while the trial judge acknowledged the existence of special circumstances, they were not factored into the sentencing decision. The Court held that the trial judge's failure to give appropriate weight to the special circumstances was an error that warranted a re-sentencing. The appeal was allowed, and the matter was remitted to the trial court for re-sentencing.

The High Court concluded that the trial judge's oversight in not considering the special circumstances conceded by the Crown was a significant error that impacted the fairness of the sentence. The Court emphasised the importance of properly applying sentencing principles, particularly when special circumstances are acknowledged. The appellant's sentence was quashed, and the case was remitted to the trial court for re-sentencing, ensuring that the special circumstances were appropriately factored into the sentencing decision.

Orders