R v Parker [2004] NSWCCA 115

New South Wales Court of Criminal Appeal

CITATION : R v Parker [2004] NSWCCA 115 HEARING DATE(S) : 6 April 2004 JUDGMENT DATE : 6 April 2004

JUDGMENT OF : Handley JA at 1; Dowd J at 2; Greg James J at 31 DECISION : Leave granted; appeal allowed; sentences imposed quashed; resentenced

CATCHWORDS : Appeal against severity - taking into account pleas of guilty - matter could have been brought before Local Court - manifest severity LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure Act) 1999 CASES CITED : R v Thompson (2000) 49 NSWLR 383 PARTIES : Crown Benjamin Parker FILE NUMBER(S) : CCA 60469/03 COUNSEL : Mr G. Rowling (Crown) Ms R. Burgess (Applicant) SOLICITORS : Mr A. Cheung (DPP)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0144 FILE NUMBER(S) : LOWER COURT Freeman DCJ JUDICIAL OFFICER :

- 7 - IN THE COURT OF CRIMINAL APPEAL 60469/03

HANDLEY JA DOWD J GREG JAMES J

Tuesday, 6 April 2004 REGINA v BENJAMIN PARKER Judgment 1 HANDLEY JA: I agree with Dowd J. The order of the Court will be as proposed by Dowd J. 2 DOWD J: The applicant has sought leave to appeal against severity of sentences imposed by Freeman DCJ consequent upon a plea of guilty to two charges of Break, Enter And Steal, contrary to s112 of the Crimes Act 1900. 3 On the first count a fixed term of three years was imposed and on the second count, being an offence at Kariong on 16 October 2002, there was taken into account a matter on a Form 1. A sentence of five years was imposed with a non-parole period of three years, the non-parole period being concurrent with the fixed term on the first count. Both sentences commenced on 4 December 2002, the non-parole period thus expiring on 3 December 2005, the overall sentence to be completed on 3 December 2007. 4 On the first count, the victim left his house secure on a Friday, and on the following Monday discovered glass broken at his rear door and the door unlocked. A fax machine and video cassette recorder had been removed. The applicant's fingerprints were located on a tin inside the victim's bedroom. 5 The second offence involved breaking into premises at Kariong on 16 October 2002. The applicant entered the premises, accompanied by a female, whose identity is known but whose whereabouts are not. The applicant stole a power drill, an electric rotor, a hammer drill, a camera with a zoom lens and a backpack in which he placed the other items. The backpack belonging to the victim was recognised by him as the applicant walked from the premises. The applicant was chased by the owner and all goods were recovered, except for the camera lens, which was, shortly afterwards, pawned. 6 The applicant had left an amount of blood at the entry where he broke into the window and his DNA was identified. The applicant admitted at the time of arrest that he had been at the premises and on becoming aware of the DNA evidence, said he had no recollection of being at Kariong, let alone breaking and entering, because of the effect of heroin and Serepax. The applicant was also identified from photographs.