REGINA v. PARKER [2003] NSWCCA 270

New South Wales Court of Criminal Appeal

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, R v Clissold [2002] NSWCCA 356 CASES CITED : 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 COURT District Court JURISDICTION : LOWER COURT 02/31/0214 FILE NUMBER(S) : LOWER COURT Coolahan DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 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 for larceny and all of which expired either earlier than the sentence imposed for that offence or on the same day. 4 The effect of these sentences was that his Honour imposed a non-parole period which bore a relationship of 77% to the term of the sentence not 75%. The relevance of these ratios derives from the provisions of s.44 of the Crimes (Sentencing Procedure) Act 1999. Section 44(1) requires the Court to first set the term of imprisonment (para (a)); and then to set a non-parole period (para (b)). Section 44(2) then provides: "(2) The non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision."