CATCHWORDS:
Sentencing - Crown appeal - serious offences usually giving rise to custodial sentences but exceptional circumstances - Periodic Detention - failure to fix non-parole period or give reasons for not doing so - subsequent revocation of periodic detention order

LEGISLATION CITED:
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Proccedure) Act 1999
Periodic Detention of Prisoners Act 1981
Criminal Appeal Act

DECISION:
See paragraph 96

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60922/01

60923/01
HANDLEY JA
SULLY J
SMART AJ
Friday, 26 July 2002
REGINAv AARON JOHN PARSONS
REGINAv ROBERT JAMES POORE
JUDGMENT

HANDLEY JA: I agree with Smart AJ.

SULLY J: I have read in draft the judgment of Smart AJ. I agree with the orders proposed by his Honour, but with some misgivings. In my opinion there has been such a lapse of time between the passing of the original sentences and the final disposal of the present appeals that it would better serve the ends of justice not now to interfere with such progress as the two respondents have made, respectively, during that period.

Had it not been for that consideration, I would have thought that this Court ought to have intervened in both cases.

The offence committed by the present respondents was an offence of deliberate violence committed against a victim hand-picked because of his correctly perceived vulnerability. There are in the community at present a lot of people who are in difficult financial straits, and whose personal circumstances otherwise are, or have been, harsh. The majority of them do not deliberately rob their vulnerable fellows at knifepoint. It is, in my opinion, wrong from the points of view of both principle and policy for this Court to give an impression, as the present proposed orders will inevitably do, however many times the mantra "exceptional circumstances" is repeated, that there has been some watering down of the view that an offence of the present kind calls for some real custodial penalty. Had the present matters not been affected by the time lapse of which I have earlier spoken, I would have favoured an uncompromising statement of the proposition that it was an error to have imposed wholly non-custodial penalties upon the two present offenders; and a corresponding correction of the penalties imposed at first instance.

I respectfully agree with Smart AJ's analysis of what the law now requires in the matter of the setting of a non-parole period even in the case of…

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 Parsons & Poore

Details

AGLC: R v Parsons & Poore [2002] NSWCCA 296
Case: [2002] NSWCCA 296
Decision Date: 26 July 2002

CaseChat Overview and Summary

The case of R v Parsons & Poore involved an appeal by the Crown against the sentencing of Parsons, who had been convicted of serious offences. The dispute centred on the sentencing process, specifically the failure of the court to set a non-parole period for Parsons' imprisonment and the subsequent revocation of his periodic detention order. The legal issues that the court had to address included whether the court had the authority to set a non-parole period under the relevant legislation, and whether the Parole Board had the power to fix such a period or provide reasons for not doing so.

The court found that under the Crimes (Administration of Sentences) Act 1999, section 89, Parsons was not due for release until 31 January 2004 due to penalties he incurred for non-attendance. The court also concluded that section 163(2) of the same Act mandated the Parole Board to revoke the offender's periodic detention order. The court held that the Parole Board lacked the power to fix a non-parole period and that section 160, which allowed for a parole order in exceptional circumstances, did not apply in this case. The court determined that the judge had not fixed a non-parole period, which was a requirement under section 44(1) of the Crimes (Sentencing Procedure) Act 1999. The court further held that section 45(2) mandated the judge to record reasons if declining to set a non-parole period, which had not occurred here. The court also noted that under the repealed Periodic Detention of Prisoners Act 1981, the District Court had no power to fix a non-parole period, and this had not changed under the current legislation.

The court's reasoning led to the conclusion that the appeal was upheld, and Parsons' sentence was adjusted accordingly. The court clarified that the cancellation of an order for periodic detention did not extinguish the original sentence, which remained subject to appeal. The court found no jurisdiction for the Court of Criminal Appeal to hear an appeal from a decision cancelling an order for periodic detention under the Periodic Detention of Prisoners Act 1983. This case underscores the importance of adhering to statutory requirements when setting non-parole periods and the limitations of the Parole Board's powers in this regard.

Orders

Orders of the court

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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

Because of penalties he incurred for non-attendance he is not due for release until 31 January 2004: s.89 Crimes (Administration of Sentences) Act 1999. Section 163(2) of that Act required the Parole Board to revoke the offender's periodic detention order. The Parole Board is not given any power to fix a non-parole period. Section 160 allows it to make a parole order in exceptional circumstances. It does not apply in the present case. As earlier mentioned Mr Parson's complaint is that the judge did not fix a non-parole period. Section 6(1) of the Crimes (Sentencing Procedure) Act 1999 provides that a court that has sentenced an offender to imprisonment for not more than 3 years may make a periodic detention order directing that the sentence be served by way of periodic detention. It should be noted that under s.6 the Court should determine first what sentence should be imposed and then determine whether the sentence should be served by periodic detention. Section 44(1) provides that when sentencing an offender to imprisonment for an offence a court is required firstly to set the term of the sentence and secondly to set a non-parole period for the sentence. Section 45(1) provides that a court may decline to set a non-parole period if it appears to the Court that it is appropriate to do so. Section 45(2) provides that if a court declines to set a non-parole period it must make a record of its reasons for doing so. No such record was made. The Crimes (Sentencing Procedure) Act 1999 made some changes to the law as to the periodic detention of prisoners. It repealed the Periodic Detention of Prisoners Act 1981. Under that Act the District Court had no power, when imposing a sentence of imprisonment to be served by way of periodic detention, to fix a non-parole period and did not attempt to do so. When an offender was brought before the District Court for not serving his periodic detention and that Court cancelled that order, the unexpired portion of the sentence of imprisonment to which the order applied was deemed to be a separate term of imprisonment imposed at the time of cancellation. (s.27(1)(c)). Under s.27(4) where the District Court cancelled an order for periodic detention the court in its discretion could direct that the unexpired portion of the sentence to which the order related be taken to consist of a minimum term and an additional term under Part 2 of the Sentencing Act 1989. Of course the Court could decline to do so. In R v Sommerville (1995) 36 NSWLR 184 at 188 Gleeson CJ pointed out that the making of a cancellation "does not quash or expunge the original sentence which itself remains subject to appeal, or potential appeal in the usual way." There is nothing in the current Acts which changes the position. In Sommerville the Chief Justice and Barr AJ held that the Court of Criminal Appeal had no jurisdiction to hear an appeal from a decision of the District Court cancelling an order for periodic detention. The Periodic Detention of Prisoners Act 1983 conferred no right of appeal and a cancellation order was not a sentence within s.5(1)(c) of the Criminal Appeal Act 1912. That did not prevent administrative review. See also Wilson v Dept of Corrective Services 93 A Crim R 301 at 309.

Citations

AGLC Citation

R v Parsons & Poore [2002] NSWCCA 296

Most Recent Citation

Regina v Boundy [2002] NSWCCA 319

Cases citing this decision · 11 of 11 shown

R v Broadstock-Maloney
[2025] NSWDC 331 Para 1

…Youth - R v Nair [2003] NSWCCA 368 at [17]; R v Parsons & Poore [2002] NSWCCA 296 at [69] - [70].…
Waterstone v R
[2020] NSWCCA 117 Para 60

…reater that 6 months imprisonment, unless there is a reason not to do so. Any such reason must be clearly stated by the sentencing judge. R v Parsons [2002] NSWCCA 296 and Collier v R [2012] NSWCCA 213 are examples of cases where the sentencing judge erred by not fixing a non-parole period and not giving reasons as…
Regina v Fepuleai
[2007] NSWCCA 325

…R v McPherson [2006] NSWCCA 394 R v Hamied [2007] NSWCCA 151 R v Blackman & Walters [2001] NSWCCA 121 R v Griggs [2000] NSWCCA 33 R v Parsons & Poore [2002] NSWCCA 296 PARTIES: Regina - Applicant David Fepuleai - Respondent FILE NUMBER(S): CCA 2007/00003227 COUNSEL: M Hobart - Crown Applicant D Dalton - Respondent S…
R v Ngo
[2005] NSWCCA 107 Para 29

…99, as those provisions existed before their repeal and replacement, applied. These legislative requirements are important (see R v Parsons and Poore [2002] NSWCCA 296 per Smart AJ at [100]) although, as the two sections expressly provide, non-compliance does not invalidate the sentence.…
Regina v Hakim
[2004] NSWCCA 124

…D: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v Zamagias [002] NSWCCA 17 R v Cromarty [2004] NSWCCA 54 R v Parsons & Poore [2002] NSWCCA 296 R v Meyer (2002) 135 A Crim R 438 R v Stephen [2003] NSWCCA 377 R v Hoang [2003] NSWCCA 380 PARTIES : Regina (Resp) Joe Hakim (Appl) FILE NUMBER(S):…
R v Ronal Penalosa-Munoz
[2004] NSWCCA 33

…314 R v Henry (1999) 46 NSWLR 346 R v Hernando [2002] NSWCCA 489 R v Marinos [2003] NSWCCA 136 R v Pang (1998) 105 A Crim R 474 R v Parsons and Poore [2002] NSWCCA 296 R v Perrett [1999] NSWCCA 115 R v Simpson (2001) 53 NSWLR 704 R v Smith (1987) 27 A Crim R 315 R v Thomson & Houlton (2000) 49 NSWLR 383 PARTIES : Re…
R v Stephen
[2003] NSWCCA 377 Para 12

…These legislative requirements are important, as emerges from the decision of this Court in R v Parsons and Poore [2002] NSWCCA 296 per Smart AJ, with whom Handley JA and Sully J agreed at para 100, although, as the two sections expressly provide, non-compliance does not invalidate the sentence.…
R v Schodde
[2003] NSWCCA 164

…44 R v JCE [2000] NSWCCA 498; 120 A Crim R 18 R v Kym [2002] NSWCCA 235 R v McHugh (1985) 1 NSWLR 588 R v Meyer [2002] NSWCCA 451 R v Parsons & Poore [2002] NSWCCA 296 R v Sadebath (unreported, NSWCCA, 14 May 1992) R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Smiroldo [2002] NSWCCA 120; 112 A Crim R 47 R v Smith…
Regina v Matthew Eric John EAGLETON
[2003] NSWCCA 40

…CITED: R v Beattie [2000] NSWCCA 201 Regina v Foster [2001] NSWCCA 215 R v Meyer [2002] NSWCCA 451 R v Olbrich (1999) 199 CLR 270 R v Parsons & Poore [2002] NSWCCA 296 PARTIES : REGINA Matthew Eric John EAGLETON (Applicant) FILE NUMBER(S): CCA 60002/03 COUNSEL: PJP Power SC (Crown) TJ Golding (Applicant) SOLICITORS:…
Regina v Adam Eli MEYER
[2002] NSWCCA 451

…(2000) 202 CLR 321 Regina v Foster [2001] NSWCCA 215 R v Gallagher (1991) 23 NSWLR 220 R v JCE [2000] NSWCCA 498; 120 A Crim R 18 R v Parsons & Poore [2002] NSWCCA 296 R v Simpson (2001) 53 NSWLR 704 R v Wegener [1999] NSWCCA 405 R v Zamagias [2002] NSWCCA 17 DECISION: Leave to appeal against the severity of the sen…
Regina v Boundy
[2002] NSWCCA 319

…5 A Crim R 76 R v Peel (1971) 1 NSWLR 247 at 262 Postiglione v R (1996-97) 189 CLR 295 at 341 R v Doan (2000) 50 NSWLR 115 AT 124 R v Parsons & Poore [2002] NSWCCA 296 DECISION: See para 86…

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Cases cited in this decision · 3 of 3 shown

R v Blackman and Walters
[2001] NSWCCA 121 Para 2

…In R v Blackman and Walters [2001] NSWCCA 121 Blackman pleaded guilty to one count of accessory before the fact of break, enter and steal, one count of accessory after the fact of break, enter and steal and one count of armed robbery with a dangerous weapon. Blackman was ordered to enter a good behaviour bond for 4…
R v Henry
[1999] NSWCA 111 Para 1

…The judge was conscious of the seriousness of the offence. He paid a great deal of attention to R v Henry (1999) 46 NSWLR 346. He noted the Crown submission that the decision stood totally in the way of a sentence of periodic detention and that that was not open in the present case. There was planning, both the money…
Yardley v Betts
(1979) 22 SASR 108 Para 1

…eless situation. I do not think that that observation, in the context, evidences the error suggested. It is a comment consistent with Yardley v Betts (1979) 22 SASR 108 at 112-3 which was referred to by Wood CJ at CL in Blackman and Walters at para 44 with evident approval (para 45). It is not irrelevant to take into…

Legislation cited in this decision · 5

Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 1)
Criminal Appeal Act 1912 (NSW)
1 mention (from Para 1)
Periodic Detention of Prisoners Act 1981 (NSW)
1 mention (from Para 1)
Sentencing Act 1989 (NSW)
1 mention (from Para 1)