R v Nicholas; R v Palmer

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

R v Nicholas; R v Palmer

Citation:

[2019] ACTCA 36

Hearing Date(s):

4 and 5 November 2019

DecisionDate:

5 December 2019

Before:

Murrell CJ, Mossop and Rangiah JJ

Decision:

Appeal allowed. Respondents resentenced. See [133]–[137].

Catchwords:

APPEAL – CRIMINAL LAW – Appeal against sentence – Crown appeal – Reduction of sentence for guilty plea – Late guilty plea – Schedule of offences taken into account – Two co-offenders sentenced to the same head sentence – Co-offenders with different subjective circumstances – Whether error in applying sentence discount – Whether manifest inadequacy of sentence and nonparole period – Parity – Residual discretion – Resentence

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 33, 35, 57

Criminal Appeal Act 1912 (NSW) s 5D
Criminal Code 2002 (ACT) ss 308, 310, 312, 403
Drugs of Dependence Act 1989 (ACT) s 169(1)

Supreme Court Act 1933 (ACT) s 37O

Cases Cited:

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58

Blundell v The Queen [2019] ACTCA 34
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
CMB v Attorney General for the State of New South Wales [2015] HCA 9; 256 CLR 346
Cole v The Queen [2019] ACTCA 3
Cranfield v The Queen [2018] ACTCA 3
Dalton v The Queen [2015] ACTCA 48
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Henry v The Queen [2019] ACTCA 5
House v The King (1936) 55 CLR 499
Kentwell v The Queen (No 2) [2015] NSWCCA 96
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Lehn v The Queen [2016] NSWCCA 255; 93 NSWLR 205
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Hall v The Queen; Barker v The Queen [2017] ACTCA 16
HT v The Queen [2019] HCA 40
Miles v The Queen [2016] ACTCA 54
Mill v The Queen (1988) 166 CLR 59
Miller v The Queen [2018] ACTCA 21
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Campbell [2010] ACTCA 20
R v Clarke (1996) 2 VR 520
R v Flowers [2014] ACTCA 13
R v Henry (1999) 46 NSWLR 346
R v Jacka [2017] ACTSC 225
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v Miller [2019] ACTCA 25
R v Munro (Unreported, ACT Supreme Court, Nield AJ, SCC No 178 of 2011, 14 May 2013)
R v Nicholas; R v Palmer [2019] ACTSC 16
R v Rappel [2019] ACTCA 11
R v Robertson (Unreported, ACT Supreme Court, Refshauge J, SCC No 53A of 2012, 25 October 2013)
R v Summerfield [2018] ACTCA 20; 273 A Crim R 45
R v Thompson [2017] ACTSC 141
R vToohey

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Details
Case
[2019] ACTCA 36
Decision Date

CaseChat Overview and Summary

The Crown appealed against the sentences imposed on the respondents, Nicholas and Palmer, by the District Court of New South Wales. The appeals concerned the adequacy of the sentences and non-parole periods imposed, particularly in light of the respondents' guilty pleas and the sentences received by co-offenders.

The primary legal issues before the Court of Criminal Appeal were whether the sentencing judge erred in the application of the discount for the guilty pleas, whether the sentences and non-parole periods were manifestly inadequate, and whether the principle of parity with co-offenders was correctly applied, considering their differing subjective circumstances. The court also considered whether there was any residual discretion to impose a lesser sentence than that warranted by the objective seriousness of the offences.

The Court of Criminal Appeal found that the sentencing judge had erred in the application of the discount for the guilty pleas, which were entered late in the proceedings. The court determined that the discount applied was excessive given the timing of the pleas and the stage of the proceedings. Furthermore, the court held that the sentences and non-parole periods were manifestly inadequate when compared to the objective seriousness of the offences and the sentences imposed on co-offenders, even after accounting for differences in their subjective circumstances. The court concluded that the sentencing judge had failed to properly exercise their residual discretion in favour of the respondents.

Consequently, the appeals were allowed, and the respondents were resentenced.

Orders

Orders of the court

Appeal allowed. Respondents resentenced. See [133]–[137].

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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