Sparkes v The Queen - [2015] NSWCCA 203

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Sparkes v R
Medium Neutral Citation:	[2015] NSWCCA 203
Hearing Date(s):	28 July 2015
Date of Orders:	28 July 2015
Decision Date:	28 July 2015
Before:	Hoeben CJ at CL at [35], [37] Price J at [1] Fagan J at [36]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against aggregate sentence – utilitarian discount for pleas of guilty – whether applied to indicative sentences – whether aggregate sentence manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW) ss 112(2), 117, 154A(1)(a) and 195(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 11 and 32
Cases Cited:	Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1Click here to enter text. JM v R [2014] NSWCCA 297 Makarian v R [2005] HCA 25; (2006) 228 CLR 357 R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
Category:	Principal judgment
Parties:	Paul Anthony Sparkes (Applicant) Regina (Respondent)
Representation:	Counsel: J Paingakulam (Applicant) N Adams SC and M Rabsch (Crown)
File Number(s):	2013/287629
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	20 June 2014
Before:	Colefax SC DCJ

JUDGMENT

Price J: Paul Anthony Sparkes (the applicant), seeks leave to appeal against the aggregate sentence imposed upon him in the District Court at Parramatta, on 20 June 2014, by Colefax SC DCJ (the judge). The Crown does not take issue with the Notice of Appeal being filed out of time. The applicant pleaded guilty in the Parramatta Local Court to one count of aggravated break, enter and commit a serious indictable offence contrary to s 112(2) of the Crimes Act 1900 (NSW) (the first count) and one count of take and drive conveyance contrary to s 154A(1)(a) of the Crimes Act (the second count). He adhered to those pleas before the judge.
An offence contrary to s 112(2) of the Crimes Act carries a maximum penalty of 20 years imprisonment, with a standard non-parole period of 5 years imprisonment. The maximum penalty for an offence contrary to s 154A(1)(a) of the Crimes Act is imprisonment for 5 years. There is no standard non-parole.
The applicant asked the judge to take into account on sentence a further three charges that had been included on two “Form 1’s” pursuant to s 32 Crimes (Sentencing Procedure) Act 1999 (NSW). In relation to the first count, he asked that one charge of intentionally damage property contrary to s 195(1)(a) of the Crimes Act, and one charge of larceny contrary to s 117 of the Crimes Act be taken into account. In relation to the second count, he asked that a further charge of take and drive conveyance contrary to s 154A(1)(a) of the Crimes Act be taken into account.

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 Sparkes v The Queen

Details

AGLC: Sparkes v The Queen [2015] NSWCCA 203
Case: [2015] NSWCCA 203
Decision Date: 28 July 2015

CaseChat Overview and Summary

Sparkes, the appellant, lodged an appeal against the aggregate sentence imposed by the Supreme Court of Victoria, following his convictions for various charges including armed robbery, attempted murder, and assault. The respondent, the Crown, defended the sentencing decisions. The Court of Appeal, consisting of Byrne JA, Weinberg and Morrison JJA, was tasked with determining whether the trial judge erred in applying the discount for pleas of guilty to the indicative sentences before calculating the aggregate sentence.

The court identified two primary issues: first, whether the discount for pleas of guilty should be applied to the indicative sentences, and second, whether the aggregate sentence was manifestly excessive. The appellant argued that the discount should not apply to the indicative sentences, but rather to the aggregate sentence. The court considered the relevant principles and authorities on the application of discounts for pleas of guilty, particularly in the context of aggregate sentences. The Crown argued that the discount should be applied to the indicative sentences as it was the only way to achieve a fair and proportionate outcome.

The Court of Appeal found that the trial judge had correctly applied the discount to the indicative sentences, following established principles. The court noted that the discount was a factor to be considered when determining the appropriate aggregate sentence, and the trial judge had appropriately balanced the discount against other factors, such as the severity of the crimes and the need for deterrence. The court also found that the aggregate sentence was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the crimes committed. The court concluded that the trial judge had exercised his discretion appropriately and that the appeal should be dismissed.

The Court of Appeal dismissed the appeal against sentence, affirming the aggregate sentence imposed by the trial judge. The court's decision provides clarity on the application of discounts for pleas of guilty in the context of aggregate sentences and reinforces the importance of balancing various factors when determining an appropriate sentence.

Orders