Perrin (No.2) v The The King

[2022] NSWDC 702

District Court

New South Wales

Medium Neutral Citation:

Perrin (No.2) v R [2022] NSWDC 702

Hearing dates:

6 August 2021, 28 September 2022

Date of orders:

28 September 2022

Decision date:

28 September 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Resentence following direction by Court of Criminal Appeal

The sentence appeal is upheld in part. I confirm the conviction but vary the sentence imposed by the Local Court. For sentence see [14].

Catchwords:

APPEAL - Appeal against sentence- Review after Stated Case remitted following order by Court of Criminal Appeal

CRIME – Domestic violence offences - multiple offences - Reckless wounding - assault occasioning actual bodily harm – common assault

CRIMINAL PROCEDURE− proper application of s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – Taking guilty pleas into account where notional Local Court sentence exceeds 5 years – applying Park v The Queen

STATUTORY INTERPRETATION - s 58 Crimes (Sentencing Procedure) Act 1999 (NSW)

SENTENCING — Appeal against sentence — Powers of court — Appeal to the District Court

SENTENCING – resentence-no change to previously indicted sentence multiple and serious domestic violence offences - notional sentence exceeds 5 years after taking into account guilty pleas - fresh evidence – appellant maturing and engaged in rehabilitation programmes- should previous non-parole period be varied

Legislation Cited:

Crimes (Administration of Sentences) Act 1999

Crimes (Appeal and Review) Act 2000

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Clarke-Jeffries v R [2019] NSWCCA 56

Parkv The Queen [2021] HCA 37

Perrin v R [2021] NSWDC 408

R v Perrin [2022] NSWCCA 170

Category:

Principal judgment

Parties:

Cody Perrin (the appellant)
Director of Public Prosecutions (the respondent)

Representation:

Counsel:
Mr S Fraser, Public Defender (for the appellant)
Mr D Coulton, Crown Prosecutor (for the respondent)

Solicitors:
Morrisons Law (for the appellant)

File Number(s):

2020/00054156

 Decision under appeal 

Court or tribunal:

Wollongong Local Court

Jurisdiction:

Local Court Crime

Date of Decision:

21 June 2021

Before:

McGowan LCM

File Number(s):

2020/00054156

Judgment

Introduction

1. This matter was returned to the District Court after a Crown Stated case was upheld by the Court of Criminal Appeal: R v Perrin [2022] NSWCCA 170.

2. The sentence I imposed, Haesler SC DCJ, on 17 August 2021 was quashed. And the matter was remitted to the District Court for the appeal relating to the sentence imposed on 24 June 2021 by McGowan LCM to be determined according to law.

Redetermination of the appeal

3. In my earlier judgment, I set out the Perrin’s background: Perrin v R [2021] NSWDC 408. I also made findings about the seriousness of the crimes he committed. Those crimes were extensive. They were directed at his partners and showed a complete disregard for the women he was in a relationship with. Those findings were not challenged on appeal. As the prosecutor submitted, then and now, they required a sentence of some severity, to vindicate the dignity of the victims of domestic violence and to appropriately punish Perrin.

4. When the matter was first before me, I differed slightly in terms of the length of the sentence from the learned magistrate. I gave greater weight to factors set out by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. But I formed the view then, that a sentence of more than five years was justified. I do not resile from that finding. The law provides that when a matter dealt with in the Local Court or by this Court on appeal there is a cap on the maximum penalty the Court can impose of five years: s58 Crimes (Sentencing Procedure) Act 1999.

5. I also decided that some discernible reduction of that maximum available sentence was required to give effect to the pleas of guilty. I was wrong to do so. After my earlier decision the High Court gave their decision in Park v The Queen [2021] HCA 37.

6. As the Court of Criminal Appeal determined I was also wrong in my application of s 58 Crimes (Sentencing Procedure) Act 1999 I have reviewed my earlier determination and taken into account the answers to the questions posed.

7. I would not alter the indicative sentences noted on the last occasion. But after those corrections, even making allowance for the guilty pleas and the evidence presented today, the aggregate sentence would exceed 5 years. Accordingly, by application of s 58, the aggregate sentence imposed today is limited to 5 years.

8. The principal debate today was whether I should stick to the original ratio between the head sentence and non-parole period or vary that ratio to keep the release date that I had originally fixed - 21 December 2022.

9. The prosecution position is that while a finding of special circumstances is justified the minimum sentence must, at the very least, be sufficient to adequately reflect the seriousness of what was done and the other manifold purposes of sentencing.

10. The defence position, relying on the evidence presented today, is that to change the “goal posts” so far as Perrin’s anticipated release date would not be in the interests of either the offender or ultimately the community.

11. They note the delays that have occurred; even though the prosecution proceeded with the appeal as quickly as practicable. They note the period Perrin has been subject to strict COVID restrictions. They note his demonstrated change in behaviour and the offender’s utilisation of programs made available to him by Community Corrections - Corrective Services NSW.

12. I am heartened by the evidence I received today. That evidence was not challenged. Many of his offences were a product of not just his background but his immaturity. It appears that Mr Perrin is learning much about his behaviour. I have now had the opportunity of seeing him in court on a number of occasions. Perrin is maturing: Clarke-Jeffries v R [2019] NSWCCA 56. If he learns the lessons that he says he is learning in custody, he may be able to take his place in the community.

13. In the circumstances I do not believe Perrin should be kept in gaol any longer than is necessary. I must increase the aggregate sentence imposed I originally upon him, to conform, with the directions of the Court of Criminal Appeal but I do not intend to vary his release date.

Orders

14. I confirm the indicted sentences announced on 17 August 2021.

15. There will be an aggregate sentence of five years imprisonment. That sentence will commence on 22 March 2020. There will be a non‑parole period of two years and nine months. Perrin will be eligible for release to parole on 21 December 2022. There will be a parole period of two years and three months. The sentence expires on 21 March 2025

16. That release will be subject to an order of the State Parole Authority. They will not make a parole order unless they are satisfied that it is in the interests of the safety of the community: s135 Crimes (Administration of Sentences) Act 1999. It is possible that they may not release him on that date if, for example, he has not quite finished the course they may deem it necessary. So that possible release date is the date to work towards, but release will be up to the Parole Authority.

17. OFFENDER: Thank you your Honour.

18. HIS HONOUR: That parole period is a long one, Mr Perrin. If you commit an offence while on parole, you could be returned to serve the balance of your sentence. Do you understand?

19. OFFENDER: I do your Honour.

20. AUDIO VISUAL LINK CONCLUDED AT 11.11AM

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Decision last updated: 01 March 2023