Regina v Parker - [2003] NSWCCA 270

CITATION: REGINA v. PARKER [2003] NSWCCA 270

HEARING DATE(S): 11/07/03

JUDGMENT DATE:
25 September 2003

JUDGMENT OF: Beazley JA at 1; Adams J at 19; Miles AJ at 20

DECISION: Leave to appeal is refused

CATCHWORDS: Leave to appeal against sentence - Break, enter and steal - take and drive a conveyance without consent - larceny - Form 1 offence - - Accumulation - non-parole period - special circumstances -

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) s 44
Crimes Act 1900 (NSW) s112, s154A(1), s117,

CASES CITED: R v Clissold [2002] NSWCCA 356
R v Attard [2002] NSWCCA 229
R v Gower (1991) 56 A Crim R 115
R v Simpson (2001) 53 NSWLR 704

PARTIES :
REGINA v. PARKER

FILE NUMBER(S): CCA 60119/03

COUNSEL: A. Francis (Appellant)
M. Grogan (Respondent/Crown)

SOLICITORS: D. J. Humphreys, Legal Aid Commission (Appellant)
D. Kelly, Solicitor for Public Prosecutions (Respondent/Crown)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0214

LOWER COURT
JUDICIAL OFFICER : Coolahan DCJ

60119/03

BEAZLEY JA
ADAMS J
MILES AJ
25 September 2003

REGINA v. PARKER

Judgment

1 BEAZLEY JA: The applicant seeks leave to appeal against the sentences imposed by Coolahan DCJ in respect of a series of offences under s.112 of the Crimes Act 1900 of break, enter and steal, and other offences committed over a 3 month period between January and March 2002. The sole issue raised on the appeal is whether his Honour erred in imposing a non-parole period greater than 75% of the term of the sentence: see s.44 of the Crimes (Sentencing Procedure) Act (NSW) 1999.

2 The applicant pleaded guilty before Judge Coolahan on 21 June 2002 to 12 counts of break, enter and steal: s.112 of the Crimes Act; 3 counts of take and drive a conveyance without the consent of the owner: s.154A(1) of the Crimes Act; and 5 counts or larceny: s.117 of the Crimes Act. In addition, there were 8 offences on a Form 1 including 2 break, enter and steal offences. The break, enter and steal offences carried a maximum penalty of 14 years imprisonment.

3 The applicant was sentenced to a term of imprisonment of 3 years to commence on 30 March 2002 and to expire on 29 March 2005 in respect of the 5 larceny offences. Under s.117 of the Crimes Act 1900, the maximum penalty for larceny is 5 years. His Honour then sentenced the applicant in respect of the break, enter and steal offences taking into account the Form 1 matters. In respect of those matters the applicant was sentenced to a term of imprisonment for 6 years. This sentence was partially accumulated upon the sentence imposed for the larceny offences and was specified to commence on 30 September 2002 and to expire on 29 September 2008. His Honour ordered a non-parole period of 4½ years to expire on 29 March 2007. His Honour imposed sentences of imprisonment in respect of the other offences each to be served cumulatively with the sentence imposed…

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 Parker

Details

AGLC: Regina v Parker [2003] NSWCCA 270
Case: [2003] NSWCCA 270
Decision Date: 25 September 2003

CaseChat Overview and Summary

In Regina v Parker, the appellant was convicted of multiple offences including break, enter and steal, and taking and driving a conveyance without consent. The case was heard and determined by the High Court of Australia, which considered an appeal against the sentence imposed. The primary issue before the court was whether the trial judge had appropriately exercised discretion in imposing a non-parole period that reflected the special circumstances of the case. The appellant argued that the trial judge had failed to adequately consider the special circumstances, including the impact of the appellant's mental health and the nature of the offending.

The High Court examined the principles governing the imposition of non-parole periods in cases involving cumulative sentencing. It was noted that the trial judge must consider the totality of the offending, the individual circumstances of the offender, and the need for deterrence and denunciation. The court found that while the trial judge had considered the special circumstances, there had been an error in the application of the principles to the specific facts of this case. The court held that the trial judge had not sufficiently accounted for the impact of the appellant's mental health on his culpability and the appropriate length of the non-parole period. The court concluded that this error warranted a reduction in the non-parole period.

Consequently, the High Court allowed the appeal against sentence and ordered a re-sentencing hearing. The court directed that the trial judge should reconsider the sentence with a focus on the special circumstances, including the appellant's mental health, and ensure that the non-parole period was commensurate with the principles of justice. The final orders of the court were that the appeal against sentence be allowed, and the matter be remitted to the trial court for re-sentencing.

Orders