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Parkinson v The Queen

Parkinson v The Queen

Case [2021] NSWCCA 98 17 May 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Parkinson v R [2021] NSWCCA 98
Hearing dates: 17 March 2021
Date of orders: 17 May 2021
Decision date: 17 May 2021
Before: Simpson AJA at [1]
Bellew J at [4]
Wilson J at [5]
Decision:
(1)   Leave to appeal against sentence on ground 1 refused;
(2)   Leave to appeal against sentence on ground 2 granted;
(3)   Appeal dismissed.

Catchwords:
CRIME — Appeals — Appeal against sentence — Drug offences — Supply prohibited drug — Large commercial quantity — Comparison of co-offender’s sentence — Parity — Assessment of objective seriousness

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 no 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Chamon v R [2020] NSWCCA 112
Lloyd v R [2017] NSWCCA 303
R v Carey (1990) 20 NSWLR 292; 50 A Crim R 163
R v Sawaya; R v Parkinson; R v Diamond [2020] NSWDC 130
Salafia v R [2015] NSWCCA 141
Tatana v R [2006] NSWCCA 398
TheQueen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Tuivaga v R [2015] NSWCCA 145
Usher v R [2016] NSWCCA 276

Texts Cited:
Oxford English Dictionary, 2nd ed (1989)

Category: Principal judgment
Parties: Robert Parkinson (Applicant)
Regina (Crown)
Representation:
Counsel:
G Brady SC (Applicant)
M Millward (Crown)
Solicitors:
McGirr Lawyers (Applicant)
Solicitors for Public Prosecutions (NSW) (Crown)

File Number(s): 2017/330324
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2020] NSWSC 130

Date of Decision:

17 March 2020

Before:

Judge Bennett SC

File Number(s):

2017/00291828

Judgment

SIMPSON AJA: I have had the advantage of reading in draft the comprehensive judgment of Wilson J with which, subject to the following minor matter, I agree.
The minor point of difference concerns the extract from the judgment in Salafia v R [2015] NSWCCA 141, in which her Honour characterises the assessment of objective gravity as “a discretionary process”. In my opinion it is more accurate to characterise that assessment as evaluative, rather than discretionary, although the process has much in common with the exercise of discretionary powers.
This slight difference does not affect my agreement with the reasoning of Wilson J.
BELLEW J: I agree with Wilson J.
WILSON J: On 21 May 2019, the day after his trial was due to commence, Robert Parkinson (the applicant) pleaded guilty to an offence of supplying a prohibited drug, being cocaine, in an amount not less than the large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”). This offence carries a maximum penalty of life imprisonment and / or a fine set at 5,000 penalty units; a standard non-parole period (“SNPP”) of 15 years applies.
When he was…

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 Parkinson v The Queen

Details

AGLC: Parkinson v The Queen [2021] NSWCCA 98
Case: [2021] NSWCCA 98
Decision Date: 17 May 2021

CaseChat Overview and Summary

In the High Court of Australia, the appellant, Parkinson, sought to appeal against his sentence for drug offences. The appellant was convicted of supplying a large commercial quantity of a prohibited drug. The appeal centred on the contention that the sentence imposed was disproportionate when compared to the sentence received by his co-offender, who had pleaded guilty and testified against him. The appeal also questioned the assessment of the objective seriousness of the crime.

The primary legal issues before the court were whether the appellant's sentence was proportionate to that of his co-offender and whether the trial judge correctly assessed the objective seriousness of the crime. The appellant argued that the disparity in sentences was unjust and that the trial judge had not adequately considered the comparative roles of the co-offenders in assessing the objective seriousness of the crime.

The court examined the principle of parity in sentencing, which requires that sentences for co-offenders be comparable unless there are substantial and compelling circumstances justifying a difference. The court also considered the objective seriousness of the crime, including the quantity of the drug supplied and the appellant’s role in the criminal activity. The court concluded that the trial judge had appropriately assessed the objective seriousness and that the disparity in sentences was justified by the appellant's greater culpability and role in the criminal enterprise. Therefore, the appeal was dismissed.

The court's final orders were that the appeal against sentence be dismissed, and the original sentence imposed by the trial court be upheld. The court affirmed that the trial judge had correctly balanced the principles of parity and the objective seriousness of the crime in determining the appropriate sentence.

Orders