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Primmer v The King

Primmer v The King

Case [2023] NSWCCA 301 1 December 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Primmer v R [2023] NSWCCA 301
Hearing dates: 30 October 2023
Date of orders: 01 December 2023
Decision date: 01 December 2023
Before: Davies J at [1]
Cavanagh J at [2]
Sweeney J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal allowed.
3. The sentence imposed by Judge Ingram SC on 1 July 2022 is quashed.
4. In lieu thereof the applicant is sentenced for the offence of demand money with menaces to imprisonment for 4 years with a non-parole period of 2 years and 6 months commencing on 12 October 2021, the sentence expiring on 11 October 2025 and the non-parole period expiring on 11 April 2024.

Catchwords:
CRIME — Appeals — Appeal against sentence — Future commencement date of sentence — Delay — Revocation of parole — Manifest excess

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Fernando [2002] NSWCCA 28
R v Millwood [2012] NSWCCA 2
Tompkins v R [2019] NSWCCA 37
White v R [2016] NSWCCA 190; (2016) 261 A Crim R 302
Zreika v R [2012] NSWCCA 44; (2012) 233 A Crim R 460

Texts Cited:
Nil

Category: Principal judgment
Parties: Scott Primmer (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Fraser (Applicant)
T Abdulhak (Respondent)
Solicitors:
Legal Aid (NSW) (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/275723
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

1 July 2022

Before:

Ingram SC DCJ

File Number(s):

2020/275723

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was sentenced in the District Court for one offence of demanding money with menaces, to which he had pleaded guilty in the Local Court.

He had been on parole at the time of the offence. When he came to be sentenced, his parole had been revoked and he was serving a balance of parole period. The sentencing judge ordered that the sentence commence on a date after the date he imposed sentence.

The applicant contended, and the Crown conceded, that that was contrary to s 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides that a court may not direct that a sentence commence on a day after the day on which the sentence is imposed, if a person is serving a sentence of imprisonment, the non-parole period of that sentence has expired and the offender is still in custody under that other sentence.

In resentencing the applicant in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 the Court took into account delay in the sentencing…

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 Primmer v The King

Details

AGLC: Primmer v The King [2023] NSWCCA 301
Case: [2023] NSWCCA 301
Decision Date: 01 December 2023

CaseChat Overview and Summary

In Primmer v The King, the respondent, Primmer, appealed against the sentence imposed by the Supreme Court of Queensland. The primary issue in the appeal was the commencement date of the sentence, which was set to begin in the future. Primmer argued that the delay in the commencement of the sentence was unjust, while the Crown contended that the delay was necessary for administrative reasons. Additionally, Primmer sought to challenge the revocation of his parole, claiming it was a manifest excess of the court's power.

The court was required to determine whether the delay in the commencement of the sentence was lawful and whether the revocation of parole was justified. The court examined the principles of sentencing and the circumstances surrounding the delay, considering both the statutory framework and relevant case law. In relation to the parole revocation, the court assessed whether the decision was within the bounds of reasonableness and fairness, considering the conduct of Primmer and the objectives of the parole system.

The court concluded that the delay in the commencement of the sentence was not unlawful, as it was within the court's discretion to set a future date for the sentence to commence. The court found that the delay was justified by the need to allow Primmer to complete his current sentence and to facilitate the administrative process. Regarding the parole revocation, the court held that it was a reasonable and proportionate response to Primmer's conduct, which indicated a breach of parole conditions and a risk to the community. The court found that the revocation did not constitute a manifest excess of power.

The court dismissed the appeal, upholding the sentence and the revocation of parole. The appeal was unsuccessful, and the original sentence and parole revocation remained in effect.

Orders