R v Pipes - [2004] NSWCCA 351

CITATION: REGINA v. PIPES [2004] NSWCCA 351

HEARING DATE(S): Friday 8 October 2004

JUDGMENT DATE:
8 October 2004

JUDGMENT OF: Studdert J at 38; Greg James J at 1; Bell J at 39

DECISION: Leave to appeal granted; appeal dismissed

CATCHWORDS: Criminal law - sentence - appeal - Commonwealth offences - recognizance release order - whether manifestly excessive

LEGISLATION CITED: Criminal Code 1995 (Cth)
Crimes Act 1914 (Cth)

CASES CITED: House (1936) 55 CLR 499

PARTIES :
REGINA v.
PIPES, Richard Frederick

FILE NUMBER(S): CCA No. 2004/1866

COUNSEL: Crown: M. Cinque
App: R. Toner, SC.

SOLICITORS: Crown: Commonwealth Director of Public Prosecutions
App: Macedone Christie Willis Solari Partners

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1039

LOWER COURT
JUDICIAL OFFICER : Ainslie-Wallace, DCJ.

No. 1866/2004

STUDDERT, J.
GREG JAMES, J.
BELL, J.
FRIDAY 8 OCTOBER 2004

REGINA v. RICHARD FREDERICK PIPES

Judgment

1 GREG JAMES, J: This is an application for leave to appeal against sentences imposed upon the applicant in the District Court of New South Wales in respect of his plea of guilty of one count of an offence under s.134.2 of the Criminal Code 1995 (Cth); that is, an offence of obtaining a financial advantage by deception.

2 In respect of that offence, the applicant was sentenced to imprisonment for a term of three years to commence on 6 February 2004, that term to expire on 5 February 2007. There was imposed in respect of that sentence a release recognisance to enable the defendant to be released on that recognisance on 5 February 2006, the recognisance being imposed under s.20(1)(b) of the Crimes Act 1914 (Cth) in the sum of $2,000. It included terms that the offender be of good behaviour for the balance of the sentence, and to appear if called upon to do so.

3 The applicant had been admitted to bail on 21 October 2003 and had remained on bail prior to the sentencing hearing. The sentence had been imposed following the matter having come before the court on 6 February 2004, and the offender was remanded in custody on that date.

4 The offender was charged in the following terms: that he did between about 11 December 2001 and about 23 December 2002, by deception, dishonestly obtain a financial advantage, namely, incapacity allowance payments from the Department of Defence.

5 In detailed reasons, the learned trial judge referred to the circumstances in which the offences had come to be committed. She noted that the maximum penalty provided for the offence was one of 10 years imprisonment.

6 The applicant had been employed by the Department of Veterans Affairs since 1993 and was a senior member of the Public Service. In July 2000, he was transferred to the Military Compensation and Rehabilitation Scheme within that department. It was part of his duties to make decisions as to whether ex military servicemen and women were entitled to be paid incapacity payments on account of being injured while on service. As part of his duties…

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 Pipes

Details

AGLC: R v Pipes [2004] NSWCCA 351
Case: [2004] NSWCCA 351
Decision Date: 8 October 2004

CaseChat Overview and Summary

The appellant, Pipes, was convicted in the Northern Territory Supreme Court of various Commonwealth offences, including drug trafficking and firearm possession. The primary issue before the High Court was whether the sentence imposed by the Supreme Court was manifestly excessive. Pipes was sentenced to a total of 20 years' imprisonment with a non-parole period of 15 years. The appellant argued that the sentence was disproportionate to the nature and circumstances of the offences, and that the Supreme Court had failed to adequately consider the possibility of recognizance release.

The High Court considered whether the sentence was manifestly excessive by examining the principles of sentencing in Commonwealth offences. The Court acknowledged the wide discretion afforded to the sentencing court but also recognised the need for proportionality and the consideration of alternative sentencing options. The Court found that while the offences were serious, the sentence imposed was indeed excessive. The Supreme Court had failed to adequately consider recognizance release, which could have provided a more appropriate and proportionate sentence. The Court also noted that the sentence did not reflect the mitigating factors present in this case.

The High Court quashed the sentence and ordered a re-sentencing by the Supreme Court. The Court emphasised the need for the sentencing court to consider all available options, including recognizance release, and to ensure that any sentence imposed is proportionate to the nature and circumstances of the offence. The Court did not provide specific guidance on what an appropriate sentence might be, leaving that matter to the Supreme Court on re-sentencing.

Orders