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10
Court of Criminal Appeal 26 July 2002

R v Parsons & Poore

[2002] NSWCCA 296

Assault & violenceTheft & propertyFirearms & weapons
SENTENCING CROWN APPEAL PERIODIC DETENTION FAILURE TO FIX NON

Citation: R v Parsons & Poore [2002] NSWCCA 296
Court: NSW Court of Criminal Appeal
Date: 26 July 2002
Judge(s): Handley JA, Sully J, Smart AJ

Background

The Crown appealed against sentences of two years periodic detention imposed by O'Reilly DCJ in the District Court on each of two men (referred to here as Parsons and Poore) following their guilty pleas to robbery whilst armed with an offensive weapon. The offence involved a carefully planned ambush of a pizza delivery driver, lured to an isolated location at night by a false order. The victim was confronted by a masked offender wielding a miniature sword, forced to the ground, and robbed of a bumbag containing approximately $200. The offenders then drove off in the victim's car, which was later found stripped of its stereo equipment.

Both men were in financial difficulty at the time. Each blamed the other for the physical confrontation with the victim in their police interviews. A co-offender who worked at the pizza store and assisted the pair after the robbery was dealt with separately.

The Crown argued the sentences were manifestly inadequate for offences of this seriousness. Parsons also brought his own application for leave to appeal, contending the sentencing judge had erred in failing to fix a non-parole period or give reasons for not doing so.

  • Whether sentences of two years periodic detention (with no custodial element) were manifestly inadequate for an armed robbery of this kind, which ordinarily attracts full-time imprisonment
  • Whether exceptional circumstances existed sufficient to justify a wholly non-custodial sentence
  • Whether a sentencing court is required, when imposing a sentence to be served by periodic detention, to fix a non-parole period or provide reasons for not doing so
  • What orders were appropriate given significant time had elapsed since the original sentences, including the subsequent revocation of Parsons' periodic detention order and his entry into full-time custody

Decision

Smart AJ, with whom Handley JA agreed, addressed the Crown's appeals against both respondents. Although accepting that armed robbery ordinarily warrants a custodial sentence, the Court ultimately dismissed both Crown appeals. The passage of time since sentencing, and the progress each man had made in the intervening period, made it unjust to intervene at that late stage.

On the non-parole period question, Smart AJ held that a sentencing court is required to fix a non-parole period even where a sentence is ordered to be served by way of periodic detention, or to give reasons for not doing so. The failure to take either step in Parsons' case constituted error. The Court granted Parsons leave to appeal against his own sentence and fixed a non-parole period of 18 months.

In determining the appropriate non-parole period for Parsons, Smart AJ acknowledged objective gravity warranting a two-year non-parole period, but reduced this to 18 months in light of Parsons' subjective circumstances, including his youth, psychiatric condition, prospects of rehabilitation, and the sentences imposed on his co-offenders. The Court noted that Parsons' periodic detention had already been revoked by the Parole Board in January 2002 and that he had been in full-time custody since then.

Sully J agreed with the proposed orders but expressed reservations. His Honour considered it wrong in principle to impose wholly non-custodial penalties for deliberate violence against a vulnerable victim, and would have corrected that error but for the time elapsed. Sully J also queried the practical value of requiring non-parole periods in periodic detention cases, given the administrative regime's capacity to reshape the practical effect of any sentence the court imposed.

Orders Made

  • Crown appeal against the sentence imposed on Robert James Poore dismissed
  • Crown appeal against the sentence imposed on Aaron John Parsons dismissed
  • Extension of time granted and leave to appeal granted to Aaron John Parsons against his sentence
  • Parsons' appeal against the two-year periodic detention sentence dismissed, but a non-parole period of 18 months fixed, commencing 23 November 2001 and ending 22 May 2003 (dates to be adjusted for subsequent events)
  • Court noted that Parsons' periodic detention had been revoked in January 2002, that he had been in custody since 24 January 2002, that his adjusted sentence expiry was 31 January 2004, and that his adjusted non-parole period expired 30 July 2003, on which date he was to be released on parole

Key Takeaways

  • A sentencing court imposing a sentence to be served by periodic detention is required either to fix a non-parole period or to give reasons for not doing so; omitting both steps constitutes legal error.
  • Armed robbery involving deliberate targeting of a vulnerable victim ordinarily warrants full-time imprisonment; the "exceptional circumstances" threshold for a non-custodial sentence in such cases remains a high one.
  • In dismissing the Crown appeals, the Court of Criminal Appeal treated the significant lapse of time between original sentencing and the appeal hearing as a material consideration weighing against intervention, even where the original sentences may have been inadequate.
  • Revocation of a periodic detention order by the Parole Board after sentencing is a subsequent event the appellate court must account for when framing any adjusted orders, including recalculating sentence and non-parole period expiry dates.
  • Sully J's observations flagged a broader concern: the administrative power to revoke periodic detention may effectively undercut whatever non-parole period a court fixes, a tension his Honour suggested warranted legislative attention.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Periodic Detention of Prisoners Act 1981 (NSW) (since repealed)
- Criminal Appeal Act (NSW)

Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Pham and Ly (1999) 55 A Crim R 129
- R v Blackman and Walters [2001] NSWCCA 121
- R v Kovacevic 111 A Crim R 131
- Yardley v Betts (1979) 22 SASR 108
- R v Sommerville (1995) 36 NSWLR 184
- Wilson v Dept of Corrective Services 93 A Crim R 301
- R v Moody (Court of Criminal Appeal (Vic), 21 June 1978)