R v Parker - [2002] NSWCCA 330

Reported Decision:
(2002) 132 A Crim R 413

New South Wales

Court of Criminal Appeal

CITATION: R v PARKER [2002] NSWCCA 330

FILE NUMBER(S): CCA 60200/00

HEARING DATE(S): 25 July 2002

JUDGMENT DATE:
22 August 2002

PARTIES :

David John Parker - Applicant
Crown - Respondent

JUDGMENT OF: Sheller JA at 1; Hidden J at 59; Howie J at 60

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/0092; 99/11/0057

LOWER COURT JUDICIAL
OFFICER : Woods DCJ

COUNSEL : M Thangaraj - Applicant
P J Power - Respondent

SOLICITORS: Michael Croke & Co - Applicant
S E O'Connor - Crown

CATCHWORDS: CRIMINAL APPEAL - Drug Misues & Trafficking Act 1985, ss24(2), 25(1), 25(2) - supply and manufacture of methylamphetamine - application to change pleas of guilty to not guilty - 'step in the process of manufacture' - R v BD [2001] NSWCCA 184 considered - impossibility of manufacture - APPEAL AGAINST SEVERITY OF SENTENCE - error in applying Pearce v The Queen [1998] 194 CLR 610 conceeded - totality of sentences - sentences to be partially cumulative

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Criminal Appeal Act 1912

CASES CITED:
R v Thomas (1993) 67 A Crim R 308
Pearce v The Queen (1998) 194 CLR 610
Maxwell v The Queen (1996) 184 CLR 501
R v Kouroumalos [2000] NSWCCA 453
Liberti (1991) 55 A Crim R
R v BD [2001] NSWCCA 184
R v McCoy [2001] NSWCCA 255
R v El Azzi [2001] NSWCCA 397
R v Bavadra (2000) 115 A Crim R 152
Vougdis & Rossides v R (1989) 41 A Crim R 125
R v Perese [2001] NSWCCA 478
R v Carrion (2000) 49 NSWLR 149

DECISION: 1 Refuse leave to the appellant to change his pleas to counts 2, 4 and 5; 2 Quash the sentence imposed on count 1. In lieu thereof sentence the appellant on count 1 to a term of 9 years imprisonment to commence on 10 November 2002 and to expire on 9 November 2011 with a non-parole of 6 years to commence on 10 November 2002 and expire on 9 November 2008.

60200/00
SHELLER JA
HIDDEN J
HOWIE J

Regina v David John PARKER

On 17 March 2000 the appellant pleaded guilty to five counts of offences against ss24(2) and 25(1) and (2) of the Drug Misuse and Trafficking Act 1985 (the Act). The offences were committed between December 1995 and September 1997.

Count 1 was for knowingly taking part in the supply of methylamphetamine in an amount not less than a large commercial quantity and the appellant was sentenced to 13 years imprisonment. Counts 2, 4 and 5 related to knowingly taking part in the manufacture of the same drug in an amount not less than a large commercial quantity. Sentences of fixed terms of 6 years, 7 years and 7 years imprisonment respectively were imposed for these counts, with the sentences to be served concurrently. Count 3 was not raised in the appeal.

The sentencing…

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 Parker

Details

AGLC: R v Parker [2002] NSWCCA 330
Case: [2002] NSWCCA 330
Decision Date: 22 August 2002

CaseChat Overview and Summary

The appellant, Parker, sought to appeal against the conviction and sentence imposed by the Supreme Court of New South Wales. Parker was found guilty of manufacturing and supplying methylamphetamine in contravention of the Drug Misuse and Trafficking Act 1985. Parker applied to change his plea of guilty to not guilty on the basis that the evidence did not establish that he was involved in the manufacture of methylamphetamine, but rather only in the supply of the drug. Parker also appealed against the severity of his sentence, arguing that the sentencing judge had erred in applying the principles of totality and cumulative sentencing.

The Court of Criminal Appeal considered Parker's application to change his plea and found that the evidence did establish that Parker was involved in the manufacture of methylamphetamine, as well as the supply of the drug. The Court held that the concept of 'step in the process of manufacture' was not limited to physical involvement in the chemical process, but could also include the provision of assistance or resources to facilitate the manufacture. The Court further held that the impossibility of manufacture did not absolve Parker of criminal liability. The Court rejected Parker's argument that the sentences imposed were excessive, noting that the sentencing judge had properly considered the totality of Parker's offending and imposed a sentence that was neither manifestly excessive nor inadequate.

The appeal against conviction was dismissed, and the appeal against sentence was partially allowed. The Court ordered that Parker's sentences for manufacturing and supplying methylamphetamine be partially cumulative, with a non-parole period of 15 years. Parker's other sentences were to run concurrently with this sentence. The Court noted that Parker had a history of drug-related offending and that the sentences imposed were necessary to protect the community and deter future offending.

Orders