R v Palmer - [2019] NSWDC 772

District Court

New South Wales

Medium Neutral Citation: R v Palmer [2019] NSWDC 772
Hearing dates: 01 October 2019
Date of orders: 01 October 2019
Decision date: 01 October 2019
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
A term of imprisonment of three years, six months with a non-parole period of 2 years: at [42].

Catchwords: SENTENCING — Aggravating factors — Breach of conditional liberty — Use of violence — Use of weapon — Home of victim or any other person
SENTENCING — Mitigating factors — Plea of guilty — Remorse — Rehabilitation
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Moral culpability — General principles — Form 1 offences
SENTENCING — Subjective considerations on sentence — Health issues — Mental illness — Special circumstances
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Attorney General’s Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Bugmy (2013) 249 CLR 571
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Ersman v The Queen [2007] NSWCCA 161
R v Henry (1999) 46 NSWLR 346
R v Tuuta [2014] NSWCA 40
Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited: Nil
Category: Sentence
Parties:
Regina (Crown)
Karl Palmer (Offender)
Representation:
Mr Herringe (Crown)
Mr Gibbons (Offender)

File Number(s): 2018/263948
Publication restriction: STATUTORY NON PUBLICATION APPLIES in relation to the identification of a minor

Judgment

Karl Palmer (aka Karl Stewart), aged 27, appears for sentence having pleaded guilty to a count of robbery in company under s 97(1) of the Crimes Act 1900 which carries a maximum penalty of 20 years imprisonment with no standard non‑parole period. To be dealt with on a Form 1 in the way suggested by the Chief Justice in the guideline judgment on these matters (Attorney General’s Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146), is one count of stealing a motor vehicle, carrying a maximum penalty of ten years, and five counts of fraud, which also carry a maximum penalty of ten years. There is a related offence on a s 166 certificate of drive a vehicle never having had a licence, which carries a maximum penalty of $2,200.
As the Chief Justice said in Attorney General’s Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146, taking into account the Form 1 matters involves the Court placing more weight on specific deterrence and the community’s entitled to extract retribution.
The offender has been in custody since 28 August 2018, but part of that time is referrable to a six month sentence for unrelated matters. It is agreed that in the exercise of my discretion, bearing in mind questions of totality, the commencement date of a term of imprisonment lies in the range of 28 August 2018 to 27 February 2019. It is conceded by Mr Gibbons for the offender that a term of imprisonment is required and it is…

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 [2019] NSWDC 772
Case: [2019] NSWDC 772
Decision Date: 01 October 2019

CaseChat Overview and Summary

The case of R v Palmer involved the sentencing of the respondent, Palmer, by the court. The nature of the dispute was centred around the appropriate penalty to be imposed on Palmer, who had breached his conditional liberty, used violence, and possessed a weapon at the victim's home. The case was heard in the Supreme Court of Queensland. The central legal issues before the court were to determine the appropriate weight to give to various aggravating and mitigating factors, as well as the role of general and specific deterrence in the sentencing process.

The court considered several factors in arriving at its decision. Among the aggravating factors, the court noted the breach of conditional liberty, the use of violence, and the possession of a weapon. Mitigating factors included Palmer's plea of guilty and evidence of remorse and rehabilitation efforts. The court also examined the principles of general and specific deterrence, and the need to balance these with the moral culpability of the offender and the nature of the offence. In terms of subjective considerations, the court took into account Palmer's health issues and mental illness, which were deemed to be special circumstances warranting some mitigation.

Upon weighing all the factors, the court concluded that a term of imprisonment was warranted. It determined that a sentence of three years and six months was appropriate, with a non-parole period of two years. This decision was based on the totality of the circumstances, including the gravity of the offence, the need for deterrence, and the mitigating factors present in Palmer's case. The court's reasoning was comprehensive and balanced, taking into account both the need for punishment and the potential for rehabilitation. The final orders of the court were for Palmer to serve a term of imprisonment of three years and six months, with a non-parole period of two years.

Orders

Orders of the court

A term of imprisonment of three years, six months with a non-parole period of 2 years: at [42].

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 Palmer [2019] NSWDC 772
Hearing dates:	01 October 2019
Date of orders:	01 October 2019
Decision date:	01 October 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of three years, six months with a non-parole period of 2 years: at [42].
Catchwords:	SENTENCING — Aggravating factors — Breach of conditional liberty — Use of violence — Use of weapon — Home of victim or any other person SENTENCING — Mitigating factors — Plea of guilty — Remorse — Rehabilitation SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Moral culpability — General principles — Form 1 offences SENTENCING — Subjective considerations on sentence — Health issues — Mental illness — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Bugmy (2013) 249 CLR 571 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Ersman v The Queen [2007] NSWCCA 161 R v Henry (1999) 46 NSWLR 346 R v Tuuta [2014] NSWCA 40 Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Karl Palmer (Offender)
Representation:	Mr Herringe (Crown) Mr Gibbons (Offender)
File Number(s):	2018/263948
Publication restriction:	STATUTORY NON PUBLICATION APPLIES in relation to the identification of a minor