R v Parker - [2009] VSCA 19

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 719 of 2007

THE QUEEN
	v
JASON PARKER

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JUDGES:	NEAVE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 February 2009
DATE OF JUDGMENT:	27 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 19

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Criminal law – Sentencing – Consideration by sentencing judge of ‘speculative’ matters when sentencing appellant – Whether appellant entitled to lesser sentence because use of methamphetamine caused him to behave out of character – Sentence well within range – Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S M Cooper	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr P J Doyle	Revill & Papa Lawyers

NEAVE JA
WEINBERG JA:

The appellant pleaded guilty to one count of armed robbery in the County Court, at Melbourne. On 26 July 2007, he was sentenced to a term of four years’ imprisonment. The sentencing judge fixed a non-parole period of two years. On 30 May 2008, he was granted leave to appeal pursuant to s 582 of the Crimes Act 1958.

The facts may be briefly stated. At about 1 pm on 12 July 2006, the appellant entered the Aldi supermarket at Westwood Drive, Burnside, wearing a pair of sunglasses. He approached Roxana Pereyra, a cashier, and asked her to show him where the chewing gum was located. She did so and then returned to serving other customers.

About 15 minutes later, the appellant returned to Ms Pereyra’s cash register and presented her with a packet of chewing gum, apparently for purchase. Ms Pereyra, who was seated behind a counter, opened the till. The appellant then leaned towards her and said: ‘While you have the till open, back off honey. It’s full of AIDS, it’s full of AIDS.’

Ms Pereyra looked up to see the appellant holding a syringe. She stepped back, pressing the emergency alarm button while doing so. The appellant snatched $1006 in cash from the till. He then ran from the store towards Ballarat Road. The entire incident was caught on surveillance footage which was provided to police.

On 17 August 2006, the appellant was arrested and questioned by police. He told them that he could recall bits and pieces of the events of 12 July. He said that he and others had been on ‘speed’ all night, and were ‘coming down’. He decided to wait at the shops whilst the others went to obtain more speed.

Thinking that they had left him, he went a nearby shopping centre where he filled a syringe with blood in the shopping centre toilets. He then walked into Aldi, asked for some chewing gum and then ‘held up the check-out lady’. He subsequently discarded a somewhat distinctive jumper that he had worn during the commission of the offence.

The appellant told the police that he had spent the money that he had obtained from the robbery on speed. When asked about his thought processes at the time, he indicated that he had…

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 [2009] VSCA 19
Case: [2009] VSCA 19
Decision Date: 27 February 2009

CaseChat Overview and Summary

The matter before the court involved a conviction for criminal conduct and the subsequent sentencing of the appellant, Parker. The dispute centred on whether the sentencing judge had erred by considering certain speculative matters during the sentencing process. Parker argued that the use of methamphetamine had caused him to act out of character, justifying a lesser sentence. The High Court of Australia was tasked with reviewing the appeal against the sentence imposed.

The court was required to determine whether the sentencing judge had improperly considered speculative factors when determining Parker's sentence. Specifically, the court needed to assess whether Parker's use of methamphetamine, which he claimed caused him to behave out of character, should have been a mitigating factor in his sentencing. The court also had to consider whether the sentence imposed was within the appropriate range for the offence committed.

In its decision, the court found that the sentencing judge had not erred in considering speculative matters when determining Parker's sentence. The court held that the judge was entitled to take into account all relevant factors, including speculative ones, when deciding the appropriate punishment. The court further determined that the sentence imposed was well within the range for the offence and did not constitute an error of law. Consequently, the appeal was dismissed.

Orders