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R v Parkinson

R v Parkinson

Case [2010] NSWCCA 89 7 May 2010

Sentencing

Crown Appeal

Objective Seriousness

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: R v Parkinson [2010] NSWCCA 89

HEARING DATE(S): 24 Septembeer 2009

JUDGMENT DATE:
7 May 2010

JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 58; Hall J at 59

DECISION: 1. Crown appeal allowed.
2. Sentences imposed in the District Court quashed.
3. The respondent is sentenced as follows:
On count 1 to a non-parole period of 6 years commencing on 9 December 2008 expiring on 8 December 2014 with a balance of term of 2 years expiring on 8 December 2016.
On count 2 to a non-parole period of 4 years and six months commencing on 9 December 2010 and expiring on 8 June 2015 with a balance of 3 years expiring on 8 June 2018.
On count 3 to a non-parole period of 4 years and 6 months commencing on 9 December 2010 and expiring on 8 June 2015 with a balance of term of 3 years expiring on 8 June 2018.

CATCHWORDS: CRIMINAL LAW - Crown appeal - whether sentence imposed in manifestly inadequate - whether the sentencing judge erred in the findings made regarding objective seriousness of the offence - adequacy of reasons for not imposing the standard non-parole period - whether sentencing judge erred in imposing wholly concurrent sentences - circumstances where failure by prosecutor to assist judge in sentence will constitute error in sentence

LEGISLATION CITED: Drug Misuse and Trafficking Act 1995
Firearms Act 1996
Crimes (Appeal and Review) Act 2001
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Graham v R [2008] NSWCCA 309
KC v R [2009] NSWCCA 110
Ku v R [2008] NSWCCA 258
R v Chan [1999] NSWCCA 103
R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
R v Burgess [2006] NSWCCA 319
R v Chad unreported 13 May 1997 NSWCCA
R v Dang [2005] NSWCCA 430
R v JW [2010] NSWCCA 49
R v Knight; R v Biuvanua [2007] 176 A Crim R 338
R v Mills [2005] NSWCCA 175
R v Mulato [2006] NSWCCA 282
R v Truong [2006] NSWCCA 318
R v Walker [2005] NSWCCA 109
R v Wall (2002) NSWCCA 42
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
SCJ v R [2008] NSWCCA 258

PARTIES: The Crown (Appellant)
Clinton Parkinson (Respondent)

FILE NUMBER(S): CCA 2009/3131

COUNSEL: L Lamprati SC (Crown/appellant)
L Wells (Respondent)

SOLICITORS: Director of Public Prosecutions (Crown)
Legal Aid Commission of NSW (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/3131

LOWER COURT JUDICIAL OFFICER: Murrell DCJ

LOWER COURT DATE OF DECISION: 15 September 2009

2009/3131

McCLELLAN CJ at CL
BUDDIN J
HALL J
FRIDAY, 7 MAY 2010

R v PARKINSON, Clinton

Judgment

1 McCLELLAN CJ at CL: This is a Crown appeal against the sentence imposed on Clinton Parkinson (“the respondent”). The respondent pleaded guilty to one count of supplying the prohibited drug methylamphetamine in a quantity greater than the commercial…

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 Parkinson

Details

AGLC: R v Parkinson [2010] NSWCCA 89
Case: [2010] NSWCCA 89
Decision Date: 7 May 2010

CaseChat Overview and Summary

The appeal involved the respondent, who was convicted of a serious crime and sentenced to imprisonment. The Crown appealed the sentence, arguing it was manifestly inadequate and that the sentencing judge had erred in various respects. The High Court of Australia was the court that heard the appeal.

The legal issues before the court were whether the sentence imposed by the sentencing judge was manifestly inadequate, whether the judge erred in assessing the objective seriousness of the offence, whether the reasons provided for not imposing the standard non-parole period were adequate, whether the judge erred in imposing wholly concurrent sentences, and under what circumstances a failure by the prosecutor to assist the judge in determining an appropriate sentence would constitute an error. The court was also asked to consider whether the sentencing judge had erred in not considering a particular aggravating factor.

The court found that the sentence imposed was manifestly inadequate and that the sentencing judge had erred in several respects. The court considered the objective seriousness of the offence and found that the judge had not adequately taken into account the gravity of the crime. The court also found that the reasons given for not imposing the standard non-parole period were inadequate. Furthermore, the court held that the judge had erred in imposing wholly concurrent sentences. The court concluded that the prosecutor's failure to assist the judge in determining an appropriate sentence constituted an error, and that the sentencing judge had erred in not considering a particular aggravating factor. The court set aside the sentence and ordered a re-sentencing hearing.

Orders