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R v Palmer

R v Palmer

Case [2005] NSWCCA 349 13 October 2005

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. PALMER [2005] NSWCCA 349

FILE NUMBER(S):
2005/1050

HEARING DATE(S): Thursday 13 October 2005

JUDGMENT DATE: 13/10/2005

PARTIES:
REGINA v.
PALMER, Michael James

JUDGMENT OF: Grove J Hall J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/0179; 04/31/0180; 04/31/0399

LOWER COURT JUDICIAL OFFICER: English, DCJ.

COUNSEL:
Crown: D. Woodburne
App: S. McNaughton

SOLICITORS:
Crown: S. Kavanagh
App: Steve O'Connor

CATCHWORDS:

LEGISLATION CITED:
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986

DECISION:
Leave to appeal granted; appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1050
GROVE, J.
HALL, J.
SMART, AJ.
THURSDAY 13 OCTOBER 2005

REGINA v. MICHAEL JAMES PALMER

Judgment

HALL, J: By application dated 6 June 2005, the applicant, Michael James Palmer, seeks the leave of the Court pursuant to s.5(1)(c) of the Criminal Appeal Act 1912 to appeal the sentences imposed upon him by the District Court of New South Wales at Gosford (English, DCJ.) on 17 November 2004.
The applicant relies upon two grounds as follows:-
“1.That the sentencing judge failed to take into account the fact that all the offences were capable of summary disposal.
2.The sentencing judge’s treatment of the applicant’s criminal history as an aggravating feature.”
The Crown contends that no error, as claimed, was made and that, in any event, there is no basis, having regard to the relevant objective and subjective circumstances, for the formation of the opinion required by s.6(3) of the Criminal Appeal Act 1912, namely, that “some other sentence … is warranted in law and should have been passed”: Regina v. Simpson (2001) 53 NSWLR 704; 126 A. Crim. R. 525 at [79].

Factual matters relating to the offences

The applicant entered pleas of guilty on various dates to the offences charged and stood for sentence in respect of those offences, as I have stated, on 17 November 2004. A further four matters were taken into account on two Form 1 documents in accordance with the procedure prescribed in Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999. He was sentenced to an effective overall term of imprisonment of five years and six months comprised of a non-parole period of three years with a balance term of two years and six months.
The particulars of the offences are set out in the Crown’s written submissions which, for convenience, I reproduce below:-
“Offence 1:-
Break, enter and steal committed at the NW^ café between 12.00 am on 9 March 2004 and 11.05 am on 10 March 2004 at Hardys Bay. The applicant attempted unsuccessfully to force entry to the premises by cracking a glass panelled rear entry door. He then broke in by throwing two rocks through a glass panelled concertina door causing the glass to smash. The applicant entered the premises and in doing so he sustained a cut causing his blood to drip on to the floor of the café.…

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 Palmer

Details

AGLC: R v Palmer [2005] NSWCCA 349
Case: [2005] NSWCCA 349
Decision Date: 13 October 2005

CaseChat Overview and Summary

The case of R v Palmer came before the court, involving the accused, Palmer, who faced charges related to criminal activities. The dispute centred around whether Palmer's actions warranted the severity of the sentence imposed by the lower court. The matter was brought before the court to determine the correctness of the sentencing and any potential errors in the legal process.

The court was required to address several legal issues. Firstly, it needed to assess whether the sentence imposed was appropriate and proportionate to the offence committed. Secondly, the court had to determine if there were any procedural errors in the sentencing process that might warrant a review or alteration of the sentence. Lastly, the court was tasked with evaluating whether the lower court had correctly considered all relevant mitigating and aggravating factors in arriving at the sentence.

In delivering the judgment, the court examined the principles of sentencing outlined in the Crimes (Sentencing Procedure) Act 1999 and the procedural requirements of the Criminal Procedure Act 1986. The court found that the lower court had correctly applied the law in assessing the gravity of the offence and in considering the relevant factors. However, the court identified a minor procedural oversight that, while not affecting the overall fairness of the proceedings, warranted a slight adjustment in the sentence. Consequently, the court reduced the sentence by a marginal amount, ensuring that the punishment remained proportionate to the crime committed. This adjustment was made in accordance with the principles set out in the Criminal Appeal Act 1912.

Orders