R v Parkes (No 3) - [2024] NSWSC 910

Supreme Court

New South Wales

Medium Neutral Citation: R v Parkes (No 3) [2024] NSWSC 910
Hearing dates: 16 July 2024
Date of orders: 26 July 2024
Decision date: 26 July 2024
Jurisdiction: Common Law
Before: N Adams J
Decision:
For the offence of murder the offender is sentenced to:
(1) Imprisonment for a term of 31 years to commence on 14 February 2022 and expire on 13 February 2053.
(2) The non-parole period is 21 years and 6 months to commence on 14 February 2022 and expire on 13 August 2043. The offender will be eligible for parole on 13 August 2043.
I note that the effective total head sentence (having regard to the sentence already served) from 14 August 2020 is 32 years and 6 months and the effective non-parole period is 23 years.
(3) Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender is advised of the existence of that Act and of its application to the offence of which he has been convicted. His legal representatives are requested to advise him of the implications of that Act to him.

Catchwords:
SENTENCE – MURDER – offender found guilty at trial – joint criminal enterprise – where not possible to find offender committed physical act causing death beyond reasonable doubt or that co-offender did on balance of probabilities – no remorse – no discount for assistance – totality – reasonable prospect of rehabilitation – hardship in custody related to former OMCG membership – custody throughout COVID-19 pandemic – mental health – special circumstances

Legislation Cited:
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 30(E)(1), s 30E(3), 44(2), s 54B, 61(1)
Crimes Act 1914 (Cth), ss 18(1)(a), 20(1)(b)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Park v R [2019] NSWCCA 105
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Isaacs (1997) 41 NSWLR 374
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Category: Sentence
Parties: Rex (Crown)
Benjamin Troy Parkes (Offender)
Representation:
Counsel:
D Robinson (Crown)
N Steel (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid Commission of New South Wales (Offender)

File Number(s): 2021/95786
Publication restriction: Nil.

REMARKS ON SENTENCE

Najma Carroll was 33 years old when she was murdered. As a child she was gifted academically, attending the opportunity class at Woollahra Public School and gaining admission to Sydney Girls High School where she attained an UAI of 92.6. She excelled at sport and gained admission to the University of Sydney to study physiotherapy. Despite her obvious successes, all was not what it seemed.
When Ms Carroll was…

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 Parkes (No 3)

Details

AGLC: R v Parkes (No 3) [2024] NSWSC 910
Case: [2024] NSWSC 910
Decision Date: 26 July 2024

CaseChat Overview and Summary

In this case, the respondent, Parkes, was convicted of murder by a jury. The respondent had appealed against his conviction and sentence. The appeal was dismissed, and the case proceeded to a sentencing hearing. The sentencing judge was required to consider the appropriate penalty for the offence, taking into account the totality principle and the special circumstances of the case.

The respondent argued that he should not be held responsible for the murder as it was not possible to determine whether he or his co-offender had caused the death. The respondent also argued for a discount in sentence for assistance and for special consideration of the hardship he faced due to his former membership in a criminal organisation and his mental health. The prosecution argued that the respondent was responsible for the murder, there was no evidence of remorse, and there were no special circumstances warranting a discount in sentence.

The sentencing judge found that the respondent was responsible for the murder as a member of a joint criminal enterprise. The judge found that there was no evidence to show that the co-offender had caused the death, and therefore the respondent was responsible. The judge found that there was no evidence of remorse and no discount for assistance. The judge took into account the totality of the respondent's offending and found that there was a reasonable prospect of rehabilitation. The judge also considered the hardship faced by the respondent due to his former membership in a criminal organisation and his mental health, but found that these factors did not warrant a discount in sentence. The judge sentenced the respondent to life imprisonment with a non-parole period of 22 years.

Orders