Regina v Peckover - [2002] NSWCCA 468

Reported Decision:
(2002) 135 A Crim R 401

New South Wales

Court of Criminal Appeal

CITATION: REGINA v PECKOVER [2002] NSWCCA 468

FILE NUMBER(S): CCA 60220/02

HEARING DATE(S): 15/11/2002

JUDGMENT DATE:
15 November 2002

PARTIES :

Regina
Brien William Peckover

JUDGMENT OF: Wood CJ at CL at 1; Dowd J at 9

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/51/0155

LOWER COURT JUDICIAL
OFFICER : Ducker DCJ

COUNSEL : P Boulten (Applicant)
GIO Rowling (Crown)

SOLICITORS: Peter Bouzanis & Associates (Applicant)
SE O'Connor (Crown)

CATCHWORDS: Sentence appeal application - attempt cause child under 14 to participate in prostitution - serious efforts to carry through attempt - impossibility of success in attempt - no lesser sentence possible.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedures) Act 1999

CASES CITED:
Regina v Taouk (1992) 65 A Crim R 307

DECISION: Leave to appeal granted; appeal dismissed.

60220/02

WOOD CJ at CL
DOWD J
Friday 15 November 2002

REGINA v Brien William PECKOVER

Judgment

1 WOOD CJ at CL: I agree. I would accept that where an accused stands charged with an attempt to commit a substantive offence, which was always pre-destined to fail or which is even unlikely to succeed, then such circumstances may be taken into account as a matter reducing the objective seriousness of the offence.

2 The decision in Regina v Taouk (1992) 65 A Crim R 307 stands as authority for that proposition, and there are cases involving persons charged with a deemed supply of drugs where they never had any intention of completing the transaction, that is where their purpose was to work a fraud, or in the vernacular of the drug trade a "rip-off", where a similar approach has been taken.

3 In Taouk Badgery-Parker J observed in the passage upon which reliance is placed:

"If on the facts it appears that the attempt was unlikely to succeed or indeed that although physically possible there was in reality no prospect that it would succeed, this is a matter which might be seen to reduce the objective seriousness of the crime."

4 His Honour went on to say:

"However it must always be necessary for the sentencing Judge to consider the seriousness of that which was attempted. In every case where a person is to be sentenced for an attempt to commit a substantive offence, such factors will need to be weighed if the evidence raises the question for consideration."

5 Depending upon the seriousness of the substantive offence and of the seriousness, deliberateness, or sophistication of the offender in attempting to carry his enterprise into fruition, it might be appropriate to make some allowance in the objective seriousness of the offence for the fact that the attempt was bound inevitably to fail. Each case must be considered on its own circumstances.

6 In this case I am satisfied, for the reasons identified by his Honour, and also by Dowd J in his reasons for judgment, that this was a serious attempt…

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 Peckover

Details

AGLC: Regina v Peckover [2002] NSWCCA 468
Case: [2002] NSWCCA 468
Decision Date: 15 November 2002

CaseChat Overview and Summary

In the case of Regina v Peckover, the appellant sought to appeal against a sentence imposed for attempting to cause a child under the age of 14 to engage in prostitution. The matter was heard and determined in the Court of Criminal Appeal of South Australia. The appellant contended that the trial judge should have considered a lesser sentence, despite the serious efforts made to carry out the attempted offence, due to the impossibility of success in the attempt. The central legal issue before the court was whether the trial judge should have taken into account the impossibility of success in the attempted offence when determining the appropriate sentence for the appellant.

The court examined the principles governing the sentencing of attempted offences, particularly focusing on the degree of proximity to completion and the seriousness of the efforts made to commit the offence. The court noted that, in cases where an attempt is made to commit an offence that is impossible due to circumstances independent of the accused's will, the court may consider the impossibility when determining the appropriate sentence. However, in this case, the court found that the impossibility of success in the attempt was not a factor that should significantly mitigate the sentence, as the appellant had made serious efforts to carry out the attempted offence. The court held that, while the impossibility of success may be a relevant consideration in some instances, it did not warrant a lesser sentence in this case.

The court ultimately dismissed the appeal, affirming the sentence imposed by the trial judge. The court reasoned that the appellant's efforts to commit the offence were substantial and demonstrated a serious intent to engage in criminal conduct. The impossibility of success, while relevant, did not negate the gravity of the appellant's actions. The court concluded that the sentence was appropriate and reflected the seriousness of the attempted offence. The appeal was dismissed, and the original sentence was upheld.

Orders