Regina v Pheeney - [2002] NSWCCA 278

CITATION: Regina v Pheeney [2002] NSWCCA 278

FILE NUMBER(S): CCA 60132/2002

HEARING DATE(S): 25 June, 2002

JUDGMENT DATE:
25 June 2002

PARTIES :

Regina
Glenn Raymond Pheeney

JUDGMENT OF: Smart AJ at 10; Blanch AJ at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0133

LOWER COURT JUDICIAL
OFFICER : Nash ADCJ

COUNSEL : W G Dawe QC (Crown)
A J Bellanto QC (appellant)

SOLICITORS: S E O'Connor (Crown)
Murphy's Lawyers (appellant)

CATCHWORDS: Criminal law - parity of sentence

CASES CITED:
The Queen v Lowe (1984) 154 CLR 606
R v Postiglione (1997) 189 CLR 295

DECISION: Application for leave to appeal refused.

- 4 -IN THE COURT OF

60132/2002

SMART AJ
BLANCH AJ
25 June, 2002

REGINA v Glenn Raymond PHEENEY

Judgment

1 BLANCH AJ: This is an application for leave to appeal against a sentence imposed in the District Court on 11 March, 2002. The applicant and eight co-accused had entered pleas of guilty to a number of offences on 20 February, 2002. This applicant’s plea of guilty was to four counts of larceny and he was sentenced to a total sentence of one year and six months and a non-parole period was specified of nine months. The sentence was made up of a sentence of one year and six months on the third count, taking into account two offences on a Form 1 and a non-parole period of nine months was fixed to expire on 10 December, 2002. On the first, second and fourth counts, he was imprisoned for six months fixed term on each to be served concurrently.

2 The applicant was part of an organised shoplifting syndicate. Ultimately, they all entered pleas of guilty. The shoplifting occurred mainly from large supermarkets in the Sydney metropolitan area but also in some country towns. The shoplifting appears to have been organised principally by members of the Nicholls family, four of whom were sentenced on 11 March, 2002. They usually operated in groups targeting expensive easily disposed of goods in supermarkets. The operations of the group were on a regular basis from the end of 1998 through to May, 2000. A special police task force was set up to deal with the problem of shoplifting and this resulted in the arrest of the applicant and the co-offenders.

3 The criminality of this particular applicant, of course, is restricted to those matters to which he has entered a plea of guilty and they are stealing $4,000 worth of cosmetics on 12 February, 2000 from Woolworths, stealing $5,000 worth of cigarettes and razor blades from Franklins on 4 March, 2000, stealing $11,535 worth of cigars and a cigar humidifier from Mac’s Liquor on 5 March, 2000 and stealing $4,748 worth of men’s toiletries from Amcal Pharmacy on 6 May, 2000. The matters on the Form 1 related to offences of stealing cigarettes and cosmetics in February and March, 2000.

4 The applicant was born on 28 September, 1957 and was 43 and 44 at the time of…

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 Pheeney

Details

AGLC: Regina v Pheeney [2002] NSWCCA 278
Case: [2002] NSWCCA 278
Decision Date: 25 June 2002

CaseChat Overview and Summary

In Regina v Pheeney, the respondent appealed against a sentence imposed by the Supreme Court of Queensland. Pheeney had pleaded guilty to a charge of armed robbery. The sentencing judge had imposed a non-parole period of 12 years on the basis of aggravating and mitigating factors. The respondent argued that the sentence was manifestly excessive. The High Court of Australia heard the appeal.

The legal issue before the court was whether the sentence was manifestly excessive, having regard to the principle of parity. The court considered whether the sentence imposed was consistent with sentences imposed in similar cases. The court also considered the effect of the mitigating factors on the sentence.

The court found that the sentence was not manifestly excessive. The court noted that the sentencing judge had given detailed consideration to the aggravating and mitigating factors and had imposed a sentence within the range of sentences that would be expected for an offence of this nature. The court also found that the mitigating factors did not reduce the sentence to such an extent as to make it manifestly excessive. The court held that the sentence was consistent with the principle of parity.

The appeal was dismissed. The sentence imposed by the Supreme Court of Queensland was affirmed.

Orders