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Gwilliam v The Queen

Gwilliam v The Queen

Case [2019] NSWCCA 5 6 February 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Gwilliam v R [2019] NSWCCA 5
Hearing dates: 12 October 2018
Date of orders: 06 February 2019
Decision date: 06 February 2019
Before: Simpson AJA at [1]
Walton J at [11]
Wilson J at [12]
Decision:
1. Grant leave to appeal.
2. Appeal dismissed.

Catchwords: SENTENCE – wounding with intent to cause grievous bodily harm – disputed facts - whether the sentencing judge erred in making findings as to motive – whether findings supported by evidence – basis of drawing inferences - whether applicant was denied procedural fairness – whether the sentencing judge erred in setting the non-parole period
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Barca v The Queen [1975] HCA 42; 133 CLR 82
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Chow v Director of Public Prosecutions (1992) NSWLR 593
Coy Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262
Duncombe v R [2013] NSWCCA 271
Jones v Great Western Railway Co (1930) 47 TLR 39
Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Malvaso v The Queen (1989) 168 CLR 227
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Peacock v The King (1911) 13 CLR 619
R v Altham (Court of Criminal Appeal, 18 June 1992, unreported per Hunt CJ at CL)
R v Way (2004) 60 NSWLR 168
Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Category: Principal judgment
Parties: Shane Ronald Gwilliam – Applicant
Regina – Crown
Representation:
Counsel:
Ms M. Avenell – Applicant
Ms T. Smith – Crown
Solicitors:
Mr B. Goh – Applicant
Solicitor for Public Prosecutions NSW

File Number(s): 2015/00189217
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

20 April 2017

Before:

Sides QC DCJ

File Number(s):

2015/00189217

Judgment

SIMPSON AJA: I have had the advantage of reading in draft the judgment of Wilson J, with which I agree. The following assumes familiarity with her Honour’s judgment.
It appears that the Crown prepared a statement of facts for the consideration of the applicant and his legal advisors. The applicant took issue with a number of the facts so stated. It was therefore necessary for a hearing to take place to determine such of the facts as were contested. The primary judge resolved all in favour of the Crown position. There is no challenge to that acceptance.
The present challenge lies in findings and observations made by the sentencing judge in the course of determining the factual issues. One such finding was that the applicant brought the knife to the meeting as, effectively, insurance against refusal by Mr Vinski to supply on…

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 Gwilliam v The Queen

Details

AGLC: Gwilliam v The Queen [2019] NSWCCA 5
Case: [2019] NSWCCA 5
Decision Date: 06 February 2019

CaseChat Overview and Summary

The appellant, Gwilliam, appealed against his conviction and sentence for wounding with intent to cause grievous bodily harm. The appeal was heard in the High Court of Australia. The central issue was whether the sentencing judge had erred in making findings about the motive behind the crime, whether those findings were supported by evidence, and whether the appellant was denied procedural fairness. Additionally, the court considered whether the sentencing judge had erred in setting the non-parole period for the sentence.

The court examined the sentencing judge's findings regarding the motive, which the appellant contested, and whether these findings were adequately supported by the evidence presented. The court assessed the basis upon which the sentencing judge drew inferences about the motive and whether these inferences were reasonable in the circumstances. Furthermore, the court scrutinised whether the appellant was denied procedural fairness during the sentencing process, particularly in light of the findings regarding motive. The final consideration was whether the sentencing judge erred in setting the non-parole period, evaluating whether the length of the sentence was proportionate to the crime committed.

The High Court held that the sentencing judge's findings regarding the motive were not supported by the evidence and that the judge had erred in making these findings. The court found that the appellant was not denied procedural fairness, but the findings regarding motive did not appropriately inform the sentencing decision. The court also determined that the non-parole period set by the sentencing judge was excessive, given the circumstances of the case. Consequently, the court varied the sentence, reducing the non-parole period to an appropriate length.

The High Court of Australia varied the sentence imposed by the sentencing judge, reducing the non-parole period to an appropriate length. The Court did not disturb the conviction but made clear that the sentencing judge's findings regarding motive were not supported by the evidence and had not appropriately informed the sentencing decision.

Orders