R v Pallister - [2020] NSWDC 183

District Court

New South Wales

Medium Neutral Citation: R v Pallister [2020] NSWDC 183
Hearing dates: 8 April 2020
Date of orders: 08 April 2020
Decision date: 08 April 2020
Jurisdiction: Criminal
Before: P Taylor SC DCJ
Decision:
An aggregate sentence of imprisonment of 5 years. A non-parole period of 3 years.

Catchwords:
CRIME — Violent offences — Assault with intent to rob/cause wounding

CRIME — Property offences — Take and drive a conveyance

SENTENCING — Relevant factors on sentence — Form 1 offences – Drive motor vehicle whilst disqualified – Damage property

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences – Guilty plea
SENTENCING — Subjective considerations on sentence — Special circumstances – Mental health - Drug addition
Legislation Cited: Crimes Act 1900, s 154F
Crimes (Sentencing Procedure) Act 1999, s 3A, s 5
Cases Cited: Hiron v R [2018] NSWCCA 10
Martin v R [2016] NSWCCA 273
R v Henry [2007] NSWCCA 90
R v Huynh [2005] NSWCCA 220
R v PB [2008] NSWCCA 109
Regina v Smith [2001] NSWCCA 152
Category: Sentence
Parties: Regina
Gavin Pallister
Representation:
Counsel:
Mr C Evans (Crown)
Ms M Swift (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid New South Wales (Offender)

File Number(s): 2018/304807
Publication restriction: None

Judgment on sentence

Gavin Pallister pleaded guilty to two offences occurring on 5 October 2018 for which he is to be sentenced today.
First, assault with intent to rob whilst armed with an offensive weapon causing wounding, an offence carrying a maximum penalty of 25 years and a standard non-parole period of 7 years. In sentencing for this offence, Mr Pallister has requested the Court take into account the offence on the Form 1 of damage to property, an offence which carries a maximum period of imprisonment of five years.
The second offence for which Mr Pallister is to be sentenced today concerns stealing a motor vehicle, an offence under s 154F of the Crimes Act 1900 carrying a maximum penalty of 10 years. In sentencing for this offence, I am to take into account the offence on the Form 1 of driving whilst disqualified, an offence carrying a maximum period of imprisonment of six months.
Both the offences were committed whilst Mr Pallister was on parole having been released to parole about a week earlier. His parole was revoked when arrested on the date of the offences, 5 October 2018, and he then remained in custody for the balance of those existing sentences until 27 June 2019, some 8 months and 23 days, whereupon he continued to remain in custody referrable to the present charges until today, a period of 9 months and 12 days.
The circumstances of the offences are recorded in a document headed “AGREED FACTS” signed by or on behalf of Mr Pallister and in substance are as follows. At about 3.30pm on 5 October 2018, Mr Pallister walked towards a roundabout in Merrylands at the same time as the…

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 [2020] NSWDC 183
Case: [2020] NSWDC 183
Decision Date: 08 April 2020

CaseChat Overview and Summary

The appellant, Pallister, faced charges for multiple offences, including assault with intent to rob, taking and driving a conveyance without the owner’s consent, and damaging property. The case was heard in the appellate court where the primary issue was the appropriateness of the sentence imposed on the appellant for these criminal activities. The court was tasked with considering whether the aggregate sentence was commensurate with the gravity of the offences and whether it adequately reflected the mitigating factors such as the appellant's guilty plea, mental health issues, and drug addiction.

The court examined the statutory provisions applicable to sentencing in such cases, particularly those relating to multiple offences and the principle of aggregation. It also considered the subjective circumstances surrounding the appellant's actions, including his mental health and drug addiction, which were presented as mitigating factors. The court's analysis involved weighing these factors against the severity of the crimes committed, the need for deterrence, and the protection of the community.

In its decision, the court determined that while the appellant's personal circumstances did warrant some degree of leniency, they did not sufficiently mitigate the seriousness of the offences. The aggregate sentence of five years, with a non-parole period of three years, was upheld as appropriate given the totality of the circumstances. The court concluded that the sentence balanced the need for punishment with the consideration of the appellant's personal circumstances, ensuring a just outcome for all parties involved.

The court made no alterations to the original sentence, affirming the aggregate imprisonment term and the non-parole period.

Orders

Orders of the court

An aggregate sentence of imprisonment of 5 years. A non-parole period of 3 years.

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 [2020] NSWDC 183
Hearing dates:	8 April 2020
Date of orders:	08 April 2020
Decision date:	08 April 2020
Jurisdiction:	Criminal
Before:	P Taylor SC DCJ
Decision:	An aggregate sentence of imprisonment of 5 years. A non-parole period of 3 years.
Catchwords:	CRIME — Violent offences — Assault with intent to rob/cause wounding CRIME — Property offences — Take and drive a conveyance SENTENCING — Relevant factors on sentence — Form 1 offences – Drive motor vehicle whilst disqualified – Damage property SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences – Guilty plea SENTENCING — Subjective considerations on sentence — Special circumstances – Mental health - Drug addition
Legislation Cited:	Crimes Act 1900, s 154F Crimes (Sentencing Procedure) Act 1999, s 3A, s 5
Cases Cited:	Hiron v R [2018] NSWCCA 10 Martin v R [2016] NSWCCA 273 R v Henry [2007] NSWCCA 90 R v Huynh [2005] NSWCCA 220 R v PB [2008] NSWCCA 109 Regina v Smith [2001] NSWCCA 152
Category:	Sentence
Parties:	Regina Gavin Pallister
Representation:	Counsel: Mr C Evans (Crown) Ms M Swift (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid New South Wales (Offender)
File Number(s):	2018/304807
Publication restriction:	None