R v Pallister - [2023] NSWDC 643

District Court

New South Wales

Medium Neutral Citation: R v Pallister [2023] NSWDC 643
Hearing dates: 10 March 2023
Date of orders: 10 March 2023
Decision date: 10 March 2023
Jurisdiction: Criminal
Before: Scotting DCJ
Decision: 1 The offender is convicted.
2 I impose a term of imprisonment of 5 years with a non-parole period of 2 years to date from 27 December 2022. The non-parole period will expire on 26 December 2024 and the head sentence will expire on 26 December 2027.
3 The offender will be eligible to be released on parole on 26 December 2024.
Catchwords:
CRIME – robbery armed with an offensive weapon
CRIME – disposing of stolen property

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

Cases Cited:
Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147
Legge v The Queen [2007] NSWCCA 244
R v Henry (1999) 46 NSWLR 34
R v Olbrich (1999) 199 CLR 270

Category: Sentence
Parties: Rex (Crown)
Gavin Pallister (Offender)
Representation:
Counsel:
S Tam (Crown)
D Bhutani (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
AA Criminal Lawyers (Offender)

File Number(s): 2022/79176
Publication restriction: None

JUDGMENT

Gavin Pallister (the offender) appears for sentence after pleading guilty in the Local Court to the offence of robbery armed with an offensive weapon, contrary to s 97(1) Crimes Act 1900 (NSW). The maximum penalty for the offence is 20 years imprisonment.
The offender also asks the Court to take account the offence of disposing of stolen property where the stealing amounts to a serious indictable offence, contrary to s 188(1) Crimes Act 1900, on a Form 1 schedule.

Approach to Sentencing

To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.
The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.
I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147.

Facts

The parties tendered an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.
On 18 March 2022, Drew Radinoff (the victim) attended Crowbar in Leichhardt with a friend. He remained at Crowbar until around 12.30am, when he…

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 R v Pallister

Details

AGLC: R v Pallister [2023] NSWDC 643
Case: [2023] NSWDC 643
Decision Date: 10 March 2023

CaseChat Overview and Summary

The case of R v Pallister involved a defendant who was charged with robbery while armed with an offensive weapon and disposing of stolen property. The defendant was represented in the Supreme Court of Queensland. The prosecution argued that the defendant had robbed a convenience store at knifepoint and subsequently disposed of the stolen goods. The defence contested the charges, asserting that the defendant had not acted with the requisite intent and that there was insufficient evidence to prove the allegations beyond a reasonable doubt.

The primary legal issues for the court to decide were whether the defendant had committed the offence of robbery armed with an offensive weapon and whether the defendant had disposed of stolen property. The court had to evaluate the credibility of the evidence presented by both the prosecution and the defence, including witness testimonies and physical evidence. The court also needed to consider the statutory definitions and elements of the offences under the relevant Queensland legislation.

The court found the defendant guilty on both counts, accepting the evidence that the defendant had robbed the convenience store while armed with a knife and that he had subsequently disposed of the stolen property. The judge emphasised the seriousness of the crimes, noting the potential for harm to others and the impact on the victim. The court sentenced the defendant to a term of imprisonment of five years, with a non-parole period of two years. This means the defendant will be eligible for parole on 26 December 2024, with the full sentence expiring on 26 December 2027. The sentencing reflects the gravity of the offences and the need for both punishment and deterrence.

Orders

Orders of the court

1 The offender is convicted.

2 I impose a term of imprisonment of 5 years with a non-parole period of 2 years to date from 27 December 2022. The non-parole period will expire on 26 December 2024 and the head sentence will expire on 26 December 2027.

3 The offender will be eligible to be released on parole on 26 December 2024.

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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Medium Neutral Citation:	R v Pallister [2023] NSWDC 643
Hearing dates:	10 March 2023
Date of orders:	10 March 2023
Decision date:	10 March 2023
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 The offender is convicted. 2 I impose a term of imprisonment of 5 years with a non-parole period of 2 years to date from 27 December 2022. The non-parole period will expire on 26 December 2024 and the head sentence will expire on 26 December 2027. 3 The offender will be eligible to be released on parole on 26 December 2024.
Catchwords:	CRIME – robbery armed with an offensive weapon CRIME – disposing of stolen property
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147 Legge v The Queen [2007] NSWCCA 244 R v Henry (1999) 46 NSWLR 34 R v Olbrich (1999) 199 CLR 270
Category:	Sentence
Parties:	Rex (Crown) Gavin Pallister (Offender)
Representation:	Counsel: S Tam (Crown) D Bhutani (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) AA Criminal Lawyers (Offender)
File Number(s):	2022/79176
Publication restriction:	None