R v Palmer - [1998] QCA 293

COURT OF APPEAL

[1998] QCA 293

THOMAS JA
MACKENZIE J

HELMAN J

CA No 181 of 1998
THE QUEEN
v.

PHILLIP FREDERICK PALMER

Applicant

BRISBANE
..DATE 06/08/98
060898 T17/BC22 M/T COA187/98
in these reasons. The phone call was indisputedly abusive and
probably threatening. It concerned a debt owed by another
person.

Mr Robertson contacted the police and complained. When he threatened to go around to the house he was warned by the police officer not to. However, subsequently the six men, including the applicant, went to the premises and forced their way in by smashing down a door.

The male occupant who had apparently picked up a machete was disarmed and beaten and kicked. He was hit once with a baseball bat by the applicant who had taken it with him to the house. It also appears not to be disputed that he also used the bat to smash a telephone as it was being used by a female occupant to dial triple 0.

The applicant's counsel said, and the sentencing Judge accepted, that the applicant had consumed a considerable amount of alcohol during the day. He was 37 years of age at the time of the incident and, as the matter was presented to the sentencing Judge, had only one previous conviction for which he was imprisoned in 1986, that being for a sexual offence.

Mr Smith, having become aware of a wider range of convictions, properly set in train events which resulted in a larger criminal history of the applicant being brought to our attention. It includes an offence of sexual assault and a 060898 T17/BC22 M/T COA187/98

penalty of five years imprisonment was shown to have been
imposed for that.

There was some discussion as to what use we should put this further information to. For my part I can dispose of the issues in the appeal without needing to have resort to the full details of that document. Suffice it to say that it appears that the information before the sentencing Judge that there had been a conviction for a sexual offence is corroborated by the information that has been put before us. The sentencing Judge said that the conviction, in any event, did not attract weight for sentencing purposes.

There was also some information put before the sentencing Judge that the applicant had been involved in a serious motor vehicle accident some years before and had sustained injuries.

It was said that he had problems with alcoholic dependence

and depression.

The sentencing Judge accepted that four years imprisonment should be the starting point for determining the effective sentences to be imposed.

He sentenced the applicant to three years imprisonment on the basis that he should get a 25 per cent discount for pleading guilty. The main complaint made today was that a recommendation for early release on parole should have been made. It was submitted that there was a disparity between the sentence received by the applicant and Peter Robertson who had 060898 T17/BC22 M/T…

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 [1998] QCA 293
Case: [1998] QCA 293
Decision Date: 6/08/1998

CaseChat Overview and Summary

The case of R v Palmer involved Phillip Frederick Palmer, who appealed against his sentence for charges including assault occasioning bodily harm and unlawful entry with intent. The Court of Appeal, comprising Thomas JA, MacKenzie J, and Helman J, reviewed the appeal against Palmer's sentence, which was deemed too severe in comparison to a co-accused who received a recommendation for early parole. The appeal centred on whether the sentencing judge erred in not recommending early parole for Palmer despite his guilty plea, given the disparity between his sentence and that of his co-accused. The court considered whether the sentencing judge had sufficient grounds to impose a sentence without parole recommendation, taking into account Palmer's criminal history and the nature of the offences.

The legal issues in this appeal revolved around the principles of sentencing disparity and the appropriate weight to give to factors such as guilty pleas, criminal history, and personal circumstances. The court examined whether the sentencing judge was correct in not imposing a recommendation for early parole on Palmer, given that his co-accused, who had no prior convictions and was younger, received such a recommendation. The court also assessed whether the sentence imposed on Palmer was within the appropriate range for the offences committed and whether the sentencing judge appropriately balanced the mitigating and aggravating factors. The court had to determine if the disparity in sentences between Palmer and his co-accused warranted any adjustment in Palmer's sentence.

The court concluded that the sentencing judge did not err in not recommending early parole for Palmer. The judge had considered Palmer's criminal history, including a previous sexual offence and a motor vehicle accident resulting in injuries, alongside his alcohol dependence and depression. The court found that the sentence imposed was within the appropriate range for the offences and that the disparity in sentences was justified by the differences in criminal history and personal circumstances between Palmer and his co-accused. The court emphasized that while Palmer's sentence did not include a parole recommendation, the effective length of his imprisonment was not significantly harsher than that of his co-accused, who had a shorter head sentence and a recommendation for parole after 12 months. The appeal was therefore dismissed, and the application for leave to appeal was refused.

Orders