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R v Palmer

R v Palmer

Case [2018] NSWDC 50 13 February 2018

Criminal Liability

Sentencing

Victim Impact Statement

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District Court

New South Wales

Medium Neutral Citation: R v Palmer [2018] NSWDC 50
Hearing dates: Sentence Hearing (3 November 2017, 24 November 2017, 14 December 2017 and 13 February 2018)
Date of orders: 13 February 2018
Decision date: 13 February 2018
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
1. On Count 2 on the indictment to which the offender was found guilty, the offender is convicted and sentenced to a term of 3 years imprisonment to date from today’s date, expiring on 12 February 2021.
2. Pursuant to section 44 of the 1999 Act, I set a non-parole period of eighteen months to commence from today, expiring on 12 August 2019, and a balance of term of eighteen months thereafter to expire on 12 February 2021.
3. Pursuant to s 50(1) of the 1999 Act, I direct the release of the offender at the expiration of the non-parole period to serve the remainder of his sentence on parole.
4. The earliest release date is 12 August 2019.

Catchwords:
CRIMINAL LAW – SENTENCE – One Count of Sexual Intercourse without Consent – objective seriousness – victim impact statement – sentencing statistics of limited utility – De Simoni principle

SENTENCING – Mitigating factors – Good character – no previous record of convictions – good character – good prospects of rehabilitation – Adjustment Disorder with mixed anxiety and depressed mood
SENTENCING – Subjective considerations on sentence – Special circumstances
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5(1), 12, 16, 21A, 28, 44(2), 50(1)
Crimes Act 1900 (NSW) ss 61I, 66L
Cases Cited: R v De Simoni (1981) 147 CLR 383
Artery v R [2017] NSWCCA 259
R v Hibberd [2009] NSWCCA 20
Baines v R [2016] NSWCCA 132
R v Hartikainen (unreported, NSWCCA, 8 June 1993, 60095 of 1993)
R v Qin [2008] NSWCCA 189
Salmond v R [2010] NSWCCA 141
Jiang v R [2010] NSWCCA 277
MC v R [2017] NSWCCA 316
Category: Sentence
Parties: Mr G Palmer (accused)
Regina (Crown)
Representation: Ms F Sullivan (accused)
Mr D Randle (Crown)

File Number(s): 2015/00314482
Publication restriction: Pursuant to s 578A Crimes Act 1900, nothing may be published that identifies the complainant except where authorised in accordance with the Section.The complainant is referred to in these remarks as GL.

Remarks on Sentence

The Offender, George Michael Palmer was tried between 26 September 2017 and 11 October 2017 in relation two counts of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) and one Count of Sexual Intercourse without Consent contrary to s 61I. All three charges related to events on 20 September 2015 at Seven Hills against GL
On 11 October 2017, the jury found the Offender Not Guilty of Counts 1 and 3, being charges of Indecent Assault, but Guilty of Count 2, being that:-

“On the 20th day of September 2015 in Seven Hills in the State of New South Wales that George Michael Palmer did have sexual intercourse with GL without consent of GL knowing she…

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 [2018] NSWDC 50
Case: [2018] NSWDC 50
Decision Date: 13 February 2018

CaseChat Overview and Summary

In the case of R v Palmer, the appellant was convicted of one count of sexual intercourse without consent. The appeal against sentence was heard in the Court of Appeal. The legal issues that the court was required to decide included the objective seriousness of the offence, the impact on the victim, the mitigating factors presented by the defence, and any special circumstances that might influence the sentence. The court was also required to consider the sentencing statistics and the principles laid out in De Simoni.

The court considered the objective seriousness of the offence, taking into account the impact on the victim as expressed in the victim impact statement. The court found that the statistics of limited utility did not assist in determining the appropriate sentence, and instead relied on the principles outlined in De Simoni. The court also considered the mitigating factors presented by the defence, including the appellant’s good character, no previous record of convictions, and prospects of rehabilitation. The court further considered the appellant’s adjustment disorder with mixed anxiety and depressed mood, and the special circumstances of the case.

The court determined that the appropriate sentence for the offence was a term of imprisonment of 3 years, with a non-parole period of 18 months. The court set the balance of the term to expire on 12 February 2021. The court also directed the release of the offender at the expiration of the non-parole period to serve the remainder of his sentence on parole, with the earliest release date being 12 August 2019. The court considered the mitigating factors and special circumstances of the case in determining the appropriate sentence.

Orders

Orders of the court

1. On Count 2 on the indictment to which the offender was found guilty, the offender is convicted and sentenced to a term of 3 years imprisonment to date from today’s date, expiring on 12 February 2021.

2. Pursuant to section 44 of the 1999 Act, I set a non-parole period of eighteen months to commence from today, expiring on 12 August 2019, and a balance of term of eighteen months thereafter to expire on 12 February 2021.

3. Pursuant to s 50(1) of the 1999 Act, I direct the release of the offender at the expiration of the non-parole period to serve the remainder of his sentence on parole.

4. The earliest release date is 12 August 2019.

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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Citations

R v Palmer [2018] NSWDC 50

Most Recent Citation

Palmer v R [2018] NSWCCA 205

Cases Citing This Decision

Palmer v R [2018] NSWCCA 205
Citation 1 (Para 1)

…bail on that day pending determination of a proposed appeal. As a result, he has served no time in custody referable to the conviction. 1. R v Palmer [2018] NSWDC 50.…

See all citing cases →

Cases Cited

MC v R [2017] NSWCCA 316
Citation 1

…8 June 1993, 60095 of 1993) R v Qin [2008] NSWCCA 189 Salmond v R [2010] NSWCCA 141 Jiang v R [2010] NSWCCA 277 MC v R [2017] NSWCCA 316 Category: Sentence Parties: Mr G Palmer (accused) Regina (Crown) Representation: Ms F Sullivan (accused) Mr D Randle (Crown) File Number(s): 2015/00314482 Publication restriction:…
Artery v R [2017] NSWCCA 259
Citation 2

…2, 16, 21A, 28, 44(2), 50(1) Crimes Act 1900 (NSW) ss 61I, 66L Cases Cited: R v De Simoni (1981) 147 CLR 383 Artery v R [2017] NSWCCA 259 R v Hibberd [2009] NSWCCA 20 Baines v R [2016] NSWCCA 132 R v Hartikainen (unreported, NSWCCA, 8 June 1993, 60095 of 1993) R v Qin [2008] NSWCCA 189 Salmond v R [2010] NSWCCA 141…
Baines v R [2016] NSWCCA 132
Citation 3 (Para 51)

…nce for which he has been convicted, I must take into account the surrounding circumstances consistent with what was said in Baines v R. [24] 24. [2016] NSWCCA 132…
Jiang v R [2010] NSWCCA 277
Citation 4 (Para 43)

…ies recognised that. [20] Those limitations were specifically recognised in R v Qin and Jiang v R; [21] cases I will come to shortly. 20. T 20.30 21. [2010] NSWCCA 277 at [78]; [2008] NSWCCA 189…
Salmond v R [2010] NSWCCA 141
Citation 5

…2016] NSWCCA 132 R v Hartikainen (unreported, NSWCCA, 8 June 1993, 60095 of 1993) R v Qin [2008] NSWCCA 189 Salmond v R [2010] NSWCCA 141 Jiang v R [2010] NSWCCA 277 MC v R [2017] NSWCCA 316 Category: Sentence Parties: Mr G Palmer (accused) Regina (Crown) Representation: Ms F Sullivan (accused) Mr D Randle (Crown) F…
R v Li [2010] NSWCCA 125
Citation 6

…applicant. Reference to a single case does not provide a reason to conclude that the sentence in the present case was manifestly excessive. In R v Li [2010] NSWCCA 125, Barr AJ, with the agreement of Allsop P, Basten JA, McClellan CJ at CL and Simpson J, said:- [40] ... Moreover, unless there are co-Offenders, one m…
R v Hibberd [2009] NSWCCA 20
Citation 7

…rimes Act 1900 (NSW) ss 61I, 66L Cases Cited: R v De Simoni (1981) 147 CLR 383 Artery v R [2017] NSWCCA 259 R v Hibberd [2009] NSWCCA 20 Baines v R [2016] NSWCCA 132 R v Hartikainen (unreported, NSWCCA, 8 June 1993, 60095 of 1993) R v Qin [2008] NSWCCA 189 Salmond v R [2010] NSWCCA 141 Jiang v R [2010] NSWCCA 277 M…
R v Qin [2008] NSWCCA 189
Citation 8 (Para 40)

…During the course of argument, the Defence drew attention to the case of R v Qin . [17] 17. [2008] NSWCCA 189…
Mulato v R [2006] NSWCCA 282
Citation 9

…ve seriousness of the sexual intercourse offences as that made in Qin, it is appropriate to refer to the judgment of Spigelman CJ in Mulato v R [2006] NSWCCA 282 in which, with the “emphatic” agreement of Simpson J, he said:- [37] Characterisation of the degree of objective seriousness of an offence is classically w…
R v George [2004] NSWCCA 247
Citation 10 (Para 48)

…d result of a single case in order to show that the case under consideration is within or outside a proper range of sentencing discretion: R v George [2004] NSWCCA 247 per the Court at [48] – [49]. [78] As to the suggestion that the judge “ought to have” made the same assessment of the objective seriousness of the s…
MFA v The Queen [2002] HCA 53
Citation 11

…did not find the complainant credible, particularly where a Guilty verdict has been returned on another count. In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Gleeson CJ, Hayne and Callinan JJ said at [34]: “In the case of sexual offences, of which there may be no objective evidence, some, or all, of the m…
R v De Simoni [1981] HCA 31
Citation 12 (Para 7)

…e Offender should be sentenced for the act of sexual intercourse without consent in its context as found to have occurred beyond reasonable doubt. 1. (1981) 147 CLR 383…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 12, 16, 21A, 21A(3)(e), 28, 44(2), 5(1),...
8 mentions (from Para 44)
Crimes Act 1900 (ACT) 61I, 66L
3 mentions (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 94)

Medium Neutral Citation:	R v Palmer [2018] NSWDC 50
Hearing dates:	Sentence Hearing (3 November 2017, 24 November 2017, 14 December 2017 and 13 February 2018)
Date of orders:	13 February 2018
Decision date:	13 February 2018
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	1. On Count 2 on the indictment to which the offender was found guilty, the offender is convicted and sentenced to a term of 3 years imprisonment to date from today’s date, expiring on 12 February 2021. 2. Pursuant to section 44 of the 1999 Act, I set a non-parole period of eighteen months to commence from today, expiring on 12 August 2019, and a balance of term of eighteen months thereafter to expire on 12 February 2021. 3. Pursuant to s 50(1) of the 1999 Act, I direct the release of the offender at the expiration of the non-parole period to serve the remainder of his sentence on parole. 4. The earliest release date is 12 August 2019.
Catchwords:	CRIMINAL LAW – SENTENCE – One Count of Sexual Intercourse without Consent – objective seriousness – victim impact statement – sentencing statistics of limited utility – De Simoni principle SENTENCING – Mitigating factors – Good character – no previous record of convictions – good character – good prospects of rehabilitation – Adjustment Disorder with mixed anxiety and depressed mood SENTENCING – Subjective considerations on sentence – Special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5(1), 12, 16, 21A, 28, 44(2), 50(1) Crimes Act 1900 (NSW) ss 61I, 66L
Cases Cited:	R v De Simoni (1981) 147 CLR 383 Artery v R [2017] NSWCCA 259 R v Hibberd [2009] NSWCCA 20 Baines v R [2016] NSWCCA 132 R v Hartikainen (unreported, NSWCCA, 8 June 1993, 60095 of 1993) R v Qin [2008] NSWCCA 189 Salmond v R [2010] NSWCCA 141 Jiang v R [2010] NSWCCA 277 MC v R [2017] NSWCCA 316
Category:	Sentence
Parties:	Mr G Palmer (accused) Regina (Crown)
Representation:	Ms F Sullivan (accused) Mr D Randle (Crown)
File Number(s):	2015/00314482
Publication restriction:	Pursuant to s 578A Crimes Act 1900, nothing may be published that identifies the complainant except where authorised in accordance with the Section.The complainant is referred to in these remarks as GL.