AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 18 July 2013

Parkes v R

[2013] NSWCCA 167

Assault & violenceFirearms & weapons
CRIMINAL LAW APPEAL ON SENTENCE FIREARMS OFFENCES RECKLESSLY CAUSING GRIEVOUS BODILY HARM CROWN CONCESSION SENTENCE

Citation: Parkes v R [2013] NSWCCA 167
Court: NSW Court of Criminal Appeal
Date: 18 July 2013
Judge(s): Emmett JA, Price J, Schmidt J

Background

The appellant was sentenced in the District Court on five offences: two counts of possessing a prohibited firearm, two counts of selling a prohibited firearm, and one count of recklessly causing grievous bodily harm. The firearms offences involved the sale of two non-commercially manufactured 9mm submachine guns, fitted with large-capacity magazines and sound suppressors, to an undercover police officer for $15,000 each. The assault offence involved an unprovoked punch that caused serious facial injuries, including a fracture, permanent nerve damage, partial vision loss, and broken teeth.

The total effective sentence imposed by the sentencing judge (Syme DCJ) was nine years, structured as a non-parole period of six years and six months and a balance of term of two years and six months. That structure produces a ratio of approximately 72 per cent of the total sentence served before parole eligibility.

During sentencing, the judge found special circumstances based on the appellant's youth and his need for substantial supervision and guidance after release. The appellant argued on appeal that the sentence structure did not reflect that finding, because the statutory ratio had been adjusted by only three months.

  • Whether the sentencing judge erred by failing to give meaningful effect to her own finding of special circumstances when structuring the non-parole period relative to the total sentence.

Decision

Under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, the balance of term must not exceed one-third of the non-parole period unless special circumstances are found. Where special circumstances are found, the size of any adjustment to that statutory ratio is a matter of judicial discretion, and the Court of Criminal Appeal will generally be slow to intervene. However, intervention is warranted where the structure of the overall effective sentence has demonstrably failed to give effect to the judge's own finding.

The Crown conceded the error. Both the Crown and the Court accepted that the adjustment of only three months from the default ratio appeared to result from a mathematical miscalculation rather than a deliberate exercise of discretion. The Crown did not contend that a non-parole period below six years and six months would fail to reflect the seriousness of the offending.

Price J, with whom Emmett JA and Schmidt J agreed, noted that the principal basis for the special circumstances finding was the appellant's need for post-release supervision. The maximum supervision period available under clause 228 of the Crimes (Administration of Sentences) Regulation 2008 is three years, which informed the appropriate balance of term. The Court reduced the non-parole period to six years, producing a balance of term of three years and a ratio of approximately 67 per cent.

Orders Made

  • Appeal upheld.
  • The sentence for selling a prohibited firearm on 2 September 2010 was quashed and replaced with a non-parole period of four years and six months commencing 13 April 2012 and expiring 12 October 2016, with a balance of term of three years expiring 12 October 2019.
  • All other sentences confirmed.
  • Earliest parole eligibility date: 13 October 2016.

Key Takeaways

  • A finding of special circumstances obligates the sentencing court to give that finding genuine structural effect in the ratio between the non-parole period and the total sentence; a nominal or token adjustment will not suffice.
  • The Court of Criminal Appeal confirmed the principle from Stoeski v R that, while the size of any special circumstances adjustment is largely discretionary, appellate intervention is appropriate where the effective non-parole period demonstrably fails to reflect a judge's stated finding.
  • Under R v Simpson, an ultimate constraint on any special circumstances adjustment remains that the non-parole period must still appropriately reflect the criminality involved in the offending.
  • The maximum three-year supervision period under clause 228 of the Crimes (Administration of Sentences) Regulation 2008 is a relevant practical constraint when calibrating the balance of term to meet a rehabilitation and supervision rationale.
  • A Crown concession that a mathematical error occurred did not automatically determine the re-sentence; the Court still assessed the appropriate structure against the seriousness of the offences and the appellant's circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2)
- Crimes (Administration of Sentences) Regulation 2008 (NSW) cl 228
- Firearms Act 1996 (NSW) ss 7(1), 51(1A)(a)

Cases
- Stoeski v R [2008] NSWCCA 230
- Regina v Cramp [2004] NSWCCA 264
- R v Fidow [2004] NSWCCA 172
- Cicekdag v Regina
- R v Simpson (2001) 53 NSWLR 704