R v Peter James Day - [2010] NSWDC 40

CITATION: R v Peter James DAY [2010] NSWDC 40

HEARING DATE(S): 1 -2 February 2010
5 February 2010

JUDGMENT DATE:
5 February 2010

JURISDICTION: District Court Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: The offender is sentenced to imprisonment. It is to date from 20 November 2010. I set a non-parole period of five months with a period of eligibility for parole of sixteen months making a total sentence of twenty-one months. The offender is to be released to parole on 19 April 2011.

CATCHWORDS: CRIMINAL LAW - Sentence - Recruit a child to carry out criminal activity

LEGISLATION CITED: Crimes Act 1900
Crimes Amendment (Gang and Vehicle Related Offences) Bill
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Day [2009] NSWDC 359

PARTIES: The Crown
Peter James Day

FILE NUMBER(S): DC 2007/16033

COUNSEL: Mr E Balodis - Crown
Mr W Flynn - Offender

SOLICITORS: Director of Public Prosecution
Matouk Joyner Lawyers - Offender

SENTENCE

1 HIS HONOUR: Peter James Day appears for sentence today after having pleaded guilty, only a few days ago, to an offence that between 1 May 2004 and 15 August 2004 he recruited a man by the name of AC to carry out criminal activity. The indictment alleges that AC was then a child. That is accurate because he was at the time only seventeen years of age.

2 The circumstances of that offence are very closely related to the circumstances of another offence committed by Mr Day some time after the offence for which he is to be sentenced today. That later offence was the subject of a trial before me earlier last year. Mr Day was convicted of an offence of breaking and entering in company with intent to commit a serious indictable offence; namely to intimidate a man by the name of SA. It was the intended terrorising and assault of SA which led to Mr Day recruiting Mr AC.

3 When sentencing Mr Day for the other matter, I made a number of findings of fact both as to Mr Day’s subjective circumstances and the role of various people in the later offence. It is agreed by the Crown and Mr Flynn who now appears for the accused that there is before me no material to indicate that I should not make similar findings of fact today. Thus it is not necessary for me to repeat my conclusions and the reasons for them. But anyone reading these remarks on sentence will need to read my earlier remarks on sentence in order to understand the reasons for the sentence I am about to impose. Those earlier remarks on sentence are to be found on the Internet on the Caselaw website at Rv Day [2009] NSWDC 359.

4 With these preliminary matters out of the way let me turn to the facts of the present matter. The offender met a woman by the name of RM. She was a person who was prepared to manipulate the offender for her own…

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 Peter James Day

Details

AGLC: R v Peter James Day [2010] NSWDC 40
Case: [2010] NSWDC 40
Decision Date: 5 February 2010

CaseChat Overview and Summary

The matter of R v Peter James Day involved the defendant being charged with recruiting a child to carry out criminal activity. The case was heard in the relevant court of criminal jurisdiction. The defendant was found guilty, and the court proceeded to determine the appropriate sentence for his criminal conduct.

The primary legal issue before the court was to determine the appropriate sentence for the defendant’s actions. This required the court to consider various factors, including the nature of the offence, the defendant's criminal history, and the principles of sentencing in relation to offences involving the recruitment of a child for criminal activity. The court needed to balance the need for punishment and deterrence with the possibility of rehabilitation.

The court considered the defendant's background, noting his prior criminal history, which included various offences. It also considered the nature of the offence, which involved significant criminal conduct that exploited a child. In determining the sentence, the court emphasised the importance of deterring such behaviour and protecting children from being involved in criminal activities. The court set a non-parole period of five months and a total sentence of twenty-one months, with the defendant being eligible for parole after sixteen months. This decision aimed to ensure that the sentence was proportionate to the offence while also providing an opportunity for rehabilitation.

The final orders of the court mandated that the defendant be released on parole on 19 April 2011, with the sentence to date from 20 November 2010.

Orders

Orders of the court

The offender is sentenced to imprisonment. It is to date from 20 November 2010. I set a non-parole period of five months with a period of eligibility for parole of sixteen months making a total sentence of twenty-one months. The offender is to be released to parole on 19 April 2011.

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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CITATION:	R v Peter James DAY [2010] NSWDC 40
HEARING DATE(S):	1 -2 February 2010 5 February 2010
JUDGMENT DATE:	5 February 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment. It is to date from 20 November 2010. I set a non-parole period of five months with a period of eligibility for parole of sixteen months making a total sentence of twenty-one months. The offender is to be released to parole on 19 April 2011.
CATCHWORDS:	CRIMINAL LAW - Sentence - Recruit a child to carry out criminal activity
LEGISLATION CITED:	Crimes Act 1900 Crimes Amendment (Gang and Vehicle Related Offences) Bill Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Day [2009] NSWDC 359
PARTIES:	The Crown Peter James Day
FILE NUMBER(S):	DC 2007/16033
COUNSEL:	Mr E Balodis - Crown Mr W Flynn - Offender
SOLICITORS:	Director of Public Prosecution Matouk Joyner Lawyers - Offender