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R v Parker

R v Parker

Case [2020] ACTSC 38 7 February 2020

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Parker
Citation:	[2020] ACTSC 38
Hearing Date:	7 February 2020
DecisionDate:	7 February 2020
Before:	Walker AJ
Decision:	36 months imprisonment from 29 September 2019 to 28 September 2022, fully suspended from 7 February 2020. Drug and Alcohol Treatment Order of 12 months. See [34]-[38].
Catchwords:	CRIMINAL LAW – SENTENCING – Drug and Alcohol Sentencing List – aggravated robbery – Drug and Alcohol Treatment Order – recognition of time served on remand in custody
Legislation Cited:	Criminal Code 2002 (ACT) ss 44, 310 Crimes (Sentencing) Act 2005 (ACT) ss 10, 12, 12A, 63 80O, 80S, 80T, 80Y
Cases Cited:	R v Slifkas [2019] ACTSC 40 Hall v R; Barker v R [2017] ACTCA 16 R v Ngerengere (No 3) [2016] ACTSC 299 R v Ingram [2016] ACTSC 199 R v Toohey[2019] NSWCCA 182 R v Henry (1995) [1999] NSWCCA 111; 46 NSWLR 346
Parties:	The Queen (Crown) Crystal Parker (Offender)
Representation:	Counsel M Dyason (Crown) J Campbell (Offender)
Solicitors ACT DPP (Crown) Legal Aid ACT (Offender)
File Number(s):	SCC 244 of 2019

WALKER AJ (ex tempore)

Summary of charges

Ms Parker is charged with attempted aggravated robbery, in contravention of s 310 of the Criminal Code 2002 (ACT) (the Criminal Code) by virtue of s 44 of the Criminal Code, on 20 May 2019 (CC2019/8707) and two counts of aggravated robbery, in contravention of s 310 of the Criminal Code, the first on 20 May 2019 (CC2019/8408), the second on 23 July 2019 (CC2019/8328). These charges attract a maximum sentence of up to 25 years imprisonment, a fine of up to $400,000 or a combination of both.

Evidence

For the purpose of sentencing, I have had available to me the statement of agreed facts, Ms Parker's criminal history New South Wales and Western Australia, Drug and Alcohol Treatment Order suitability assessment reports from Ms Leah Robinson, social worker from the Alcohol and Drug Service dated 23 January 2020, Ms Alex Durant, social worker from the Forensic Mental Health Service dated 22 January 2020 and Mr Andrew Cuthel a Community Corrections Officer of ACT Corrective Services dated 28 January 2020.

Factual circumstances

The offender is a mature woman. She has an eight year old son and a 20 year old daughter. In the last few years she became addicted to heroin, a habit which at the time of this offending was costing her approximately $150 a day. During that time, she was in a relationship with her son's father and held employment as a disability support worker. The relationship with her daughter from a previous violent relationship is complicated. Her daughter is the co-offender in relation to these matters.

On 20 May 2019 they went together to a private hospital at approximately 6.00 pm. The co-offender followed a staff member into an office whilst Ms Parker remained in the corridor. The co-offender rushed the woman, demanding money whilst brandishing a knife. She then lunged toward the…

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 [2020] ACTSC 38
Case: [2020] ACTSC 38
Decision Date: 7 February 2020

CaseChat Overview and Summary

The defendant, Parker, appeared before the court in relation to a charge of aggravated robbery. The case was heard in the Drug and Alcohol Sentencing List. Parker had pleaded guilty to the charge, and the court was required to determine an appropriate sentence.

The legal issues before the court included the nature and seriousness of the offence, Parker's criminal history, and his potential for rehabilitation. The court also needed to consider whether Parker had already served sufficient time in custody pending the outcome of the case.

In delivering the judgment, the court emphasised the seriousness of the offence, noting that it involved violence and the threat of violence. However, it also acknowledged Parker's guilty plea, his otherwise clean criminal record, and his potential for rehabilitation, particularly through a drug and alcohol treatment program. The court decided that a fully suspended sentence would be appropriate, with the condition that Parker complete a drug and alcohol treatment order. The court further ordered that Parker's time served on remand in custody be recognised in the sentencing process.

The final orders were that Parker be sentenced to 36 months imprisonment, fully suspended from 7 February 2020, and that he be subject to a drug and alcohol treatment order of 12 months. The sentence was to run from 29 September 2019 to 28 September 2022.

Orders

Orders of the court

36 months imprisonment from 29 September 2019 to 28 September 2022, fully suspended from 7 February 2020. Drug and Alcohol Treatment Order of 12 months. See [34]-[38].

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

AGLC Citation

R v Parker [2020] ACTSC 38

Most Recent Citation

R v Gray [2020] ACTSC 40

Cases citing this decision · 10 of 10 shown

DPP v Stewart
[2023] ACTSC 252

…[2020] ACTSC 15 R v Miller [2019] ACTCA 25 R v Mitchell [2016] ACTSC 85 R v Moore [2012] NSWCCA 3 R v Newby [2022] ACTCA 20; 367 FLR 122 R v Parker [2020] ACTSC 38 R v Pearce [2018] ACTSC 140 R v Rosewarne [2021] ACTSC 217 R v Slattery [2021] ACTSC 154 R v Snowden [2022] ACTSC 186 R v Toumo’ua [2017] ACTCA 9; 12 A…
R v Fleury (No 2)
[2022] ACTSC 293 Para 25

…the common law, as noted above. 106. Subsequently, however, Walker AJ had occasion to consider the issue in R v Parker [2020] ACTSC 38 at [25]- [33]. Her Honour was concerned with the potential unfairness flowing from the way in which pre-sentence custody would be dealt with. Her Honour noted that not to take it…
R v Williams
[2022] ACTSC 72 Para 1

…ATO ) under s 12A, which refers to the need to “fully suspend” any sentence of imprisonment: see R v McCallum [2020] ACTSC 15 at [81]; R v Parker [2020] ACTSC 38 at [25] – [33]; and R v Crawford (No 1) [2020] ACTSC 245 at [109] – [111].…
R v Dawson
[2022] ACTSC 64 Para 1

…of time in custody not being taken into account for a person sentenced to a DATO as opposed to an ordinary suspended sentence: see R v Parker [2020] ACTSC 38 at [25] – [33] per Walker AJ; Crawford (No 1) at [109] – [111].…
R v Parker (No 2)
[2022] ACTSC 13 Para 1

…a grocery store in Dickson (Count 3). On each occasion, the offender was in possession of a knife and was in company with her mother: see R v Parker [2020] ACTSC 38. At the time of the offences, the offender was 18 years old. She had experienced a troubled upbringing and had used significant quantities of illicit…
R v Weldon
[2021] ACTSC 348 Para 1

…owever, because the Court there considered that s 12A of the Sentencing Act precluded backdating. That approach has been rejected in R v Parker [2020] ACTSC 38 and R v Crawford (No 1) [2020] ACTSC 245, though each for somewhat different reasons. There is no reason to depart from that latter view. Indeed, not to do…
R v Po'oi (No 2)
[2021] ACTSC 340 Para 1

…ravated robbery, amongst other offences, which each attract a maximum penalty of 25 years imprisonment or a fine of $400,000, or both: see R v Parker [2020] ACTSC 38.…
R v Parker
[2021] ACTSC 57 Para 1

…ning the appropriate length of sentence, I will take into account her early plea of guilty. I also note the sentences that were imposed in R v Parker [2020] ACTSC 38 with respect to the accused's co-offender who is her mother, Crystal Parker. I take into account that she was in company with an offender, that being…
R v Crawford (No 1)
[2020] ACTSC 245 Para 1

…Subsequently, however, Walker AJ had occasion to consider the issue in R v Parker [2020] ACTSC 38 at [25]-[33]. Her Honour was concerned with the potential unfairness flowing from the way in which pre-sentence custody would be dealt with. Her Honour noted that not to take it into account would be unfair to the off…
R v Gray
[2020] ACTSC 40 Para 1

…if at all, when a drug and alcohol treatment order is imposed. I refer to the observations made earlier today in my sentencing remarks in R v Parker [2020] ACTSC 38 at [25] – [33] and adopt them. I take into account 124 days' presentence custody.…

View all 10 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Toohey
[2019] NSWCCA 182 Para 1

…f totality consistent with the decision in Pearce v R [1998] HCA 57 at [45] and Johnson v The Queen [2004] HCA 15; 205 ALR 346 at [26] and R v Toohey [2019] NSWCCA 182 at [56] noting that:…
Hall v The Queen; Barker v The Queen
[2017] ACTCA 16 Para 1

…regard to factors addressed in the guideline judgment of R v Henry (1995) 46 NSWLR 346 as applied in the ACT in the decisions of Hall v R; Barker v R [2017] ACTCA 16. Here, each of the robberies were of staff engaged in their employment who were alone at the time, rendering them vulnerable.…
R v Ngerengere (No 3)
[2016] ACTSC 299 Para 1

…Contrast the approach of Penfold J in R v Ingram [2016] ACTSC 199 and Refshauge J in R v Ngerengere (No 3) [2016] ACTSC 299. In both cases their Honours concluded that section 29(1)(b) of the Sentencing Act precluded them partially suspending a sentence of imprisonment in recognition of time served. Justice Refshau…
R v Ingram
[2016] ACTSC 199 Para 1

…Contrast the approach of Penfold J in R v Ingram [2016] ACTSC 199 and Refshauge J in R v Ngerengere (No 3) [2016] ACTSC 299. In both cases their Honours concluded that section 29(1)(b) of the Sentencing Act precluded them partially suspending a sentence of imprisonment in recognition of time served. Justice Refshau…
Pannowitz v R
[2016] NSWCCA 13 Para 40

…time and type to ascertain the extent to which the sentence for one offence can comprehend and reflect the criminality of the other: Pannowitz v R [2016] NSWCCA 13 at [40]. That calls for the identification and an evaluation of the relevant factors pertaining to the offences and will include the nature and serious…
Johnson v The Queen
[2004] HCA 15 Para 1

…tation. I have regard to and apply the principle of totality consistent with the decision in Pearce v R [1998] HCA 57 at [45] and Johnson v The Queen [2004] HCA 15; 205 ALR 346 at [26] and R v Toohey [2019] NSWCCA 182 at [56] noting that:…
R v Henry
[1999] NSWCCA 111

…Hall v R; Barker v R [2017] ACTCA 16 R v Ngerengere (No 3) [2016] ACTSC 299 R v Ingram [2016] ACTSC 199 R v Toohey [2019] NSWCCA 182 R v Henry (1995) [1999] NSWCCA 111; 46 NSWLR 346…
R v Henry
[1999] NSWCA 111

…R [2017] ACTCA 16 R v Ngerengere (No 3) [2016] ACTSC 299 R v Ingram [2016] ACTSC 199 R v Toohey [2019] NSWCCA 182 R v Henry (1995) [1999] NSWCCA 111; 46 NSWLR 346…
Pearce v The Queen
[1998] HCA 57 Para 1

…iminal history and good prospects for rehabilitation. I have regard to and apply the principle of totality consistent with the decision in Pearce v R [1998] HCA 57 at [45] and Johnson v The Queen [2004] HCA 15; 205 ALR 346 at [26] and R v Toohey [2019] NSWCCA 182 at [56] noting that:…
R v Slifkas
[2019] ACTSC 40 Para 1

…r under the Sentencing Act. There has been an inconsistent approach from this court as to how that is to be addressed. Justice Mossop, in R v Slifkas [2019] ACTSC 40, backdated an intensive correction order to take into account 286 days of presentence custody. Whilst not overtly stated, this was either in reliance…

Legislation cited in this decision · 1

Crimes (Sentencing) Act 2005 (ACT)
10, 12, 12A, 63, 80S, 80T, 80Y 8 mentions (from Para 1)