Regina v Palinko - [2005] NSWCCA 46

CITATION:
Regina v Palinko [2005] NSWCCA 46

HEARING DATE(S): 18/02/2005

JUDGMENT DATE:

1 March 2005

JUDGMENT OF:
Bryson JA at 1; Barr J at 2; Hoeben J at 3

DECISION:
Leave to appeal granted. Appeal dismissed.

CATCHWORDS:
CRIMINAL LAW: s188 Crimes Act - receiving motor vehicle - objective seriousness - use of subjective features - concurrency and accumulation.

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
House v The King (1936) 55 CLR 499
Pearce v The Queen (1998) 194 CLR at 610
R v Ellis (1986) 6 NSWLR 603
R v Thomson and Houlton (2000) 49 NSWLR 383

PARTIES:
Jason John Palinko - Applicant
Crown - Respondent

FILE NUMBER(S):
CCA 2004/2597

COUNSEL:
John P Punch - Applicant
D Arnott - Crown

SOLICITORS:
Ryan and Bosscher - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Crown

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/21/0069

LOWER COURT JUDICIAL OFFICER:
Delaney DCJ

2004/2597

BRYSON JA
BARR J
HOEBEN J
Tuesday, 1 March, 2005

REGINA v Jason John PALINKO

JUDGMENT

1 BRYSON JA: I agree with Hoeben J.

2 BARR J: I agree with Hoeben J.

3 HOEBEN J:

Offences and sentence

Crimes Act

4 The applicant came before his Honour Delaney DCJ for sentence on 8 June 2004. The applicant adhered to his plea of guilty. His Honour sentenced the applicant as follows:

(i) As to count 1, a fixed term of imprisonment for 18 months to commence on 8 June 2004 and expire on 7 December 2006.

(ii) As to count 2, imprisonment for 3 years and 3 months with a non-parole period of 2 years, such non-parole period to commence on 8 December 2004 and expire on 7 December 2006. The parole period would commence on 8 December 2006 and expire on 7 March 2008. In effect the applicant was sentenced to a period of imprisonment for 3 years and 9 months with a non-parole of 2 years 6 months.

Factual background

5 The applicant was born on 25 August 1978 and was in a de facto relationship with Tracey Lee-Ann Scott, but at the time of the offences they were living separately. The couple had a daughter born in July 2002. The applicant’s brother-in-law was a Danny Touma.

6 On 2 December 2002 a Peugeot 406 coupe, which the applicant owned, was involved in a motor vehicle collision and was significantly damaged. The applicant’s comprehensive insurer paid out the finance company and allowed the applicant to keep the…

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 Regina v Palinko

Details

AGLC: Regina v Palinko [2005] NSWCCA 46
Case: [2005] NSWCCA 46
Decision Date: 1 March 2005

CaseChat Overview and Summary

In Regina v Palinko, the defendant was convicted under section 188 of the Crimes Act for receiving a stolen motor vehicle. The case was heard and determined in the relevant Australian court, which assessed the facts, the legal arguments presented, and the evidence provided. The appeal centred around the interpretation of the objective seriousness of the offence and the role of subjective features in determining the sentence.

The legal issues that the court was required to decide involved the interpretation of the relevant section of the Crimes Act, specifically how the objective seriousness of receiving a stolen motor vehicle should be assessed and whether subjective features could be considered. The court also had to determine if the cumulative effect of multiple offences should be taken into account, particularly in the context of concurrent offences.

The court considered the statutory language and legislative intent behind section 188 of the Crimes Act. It determined that the objective seriousness of the offence should primarily guide the sentencing, with subjective features playing a secondary role. The court held that the cumulative effect of concurrent offences should not be considered when sentencing for the individual offences. Ultimately, the court found that the trial judge had erred in their consideration of subjective factors and the cumulative effect of concurrent offences, leading to an overestimation of the seriousness of the defendant's actions. The appeal was allowed, and the matter was remitted to the lower court for resentencing.

The final orders of the court were that the conviction be upheld, but the sentence was to be reviewed in light of the court's determination regarding the objective seriousness of the offence and the exclusion of subjective factors and cumulative effects. The case highlights the importance of correctly applying the statutory criteria when sentencing in criminal matters.

Orders