Michael Lawrence Waugh (aka WILLOUGHBY) v R - [2010] NSWCCA 3

New South Wales
Court of Criminal Appeal

CITATION: Michael Lawrence WAUGH (aka WILLOUGHBY) v R [2010] NSWCCA 3

HEARING DATE(S): 16 December 2009

JUDGMENT DATE:
11 February 2010

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 2; Hidden J at 3

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - armed robbery - whether sentencing judge gave adequate weight to applicant's mental condition arising from use of a drug and to his troubled background - whether effect of applicant's imprisonment upon his family should have been taken into account

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: R v Hemsley [2004] NSWCCA 228
R v Wright (1997) 93 A Crim R 48
R v Henry [1999] NSWCCA 111, 46 NSWLR 346
R v Speeding [2001] NSWCCA 105, 121 A Crim R 246
R v Edwards (1996) 90 A Crim R 510

PARTIES: Michael Lawrence WAUGH (Applicant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2008/3360

COUNSEL: Self Represented (Applicant)
N Gouda (Respondent)

SOLICITORS: Self Represented (Applicant)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/3360

LOWER COURT JUDICIAL OFFICER: Knight DCJ

LOWER COURT DATE OF DECISION: 13 June 2008

2008/3360

McCLELLAN CJ at CL
SIMPSON J
HIDDEN J
Thursday 22 February 2010

Michael Lawrence WAUGH (aka WILLOUGHBY) v R

Judgment

1 McCLELLAN CJ at CL: I agree with Hidden J.

2 SIMPSON J: I agree with Hidden J.

3 HIDDEN J: The applicant, Michael Lawrence Waugh, pleaded guilty in the District Court to a charge of armed robbery, and asked the sentencing judge to take into account on a Form 1 an offence of attempting to steal a motor vehicle. For the armed robbery, with the Form 1 matter taken into account, he was sentenced to imprisonment for 5 years, comprising a non-parole period of 3 years and a balance of term of 2 years. He seeks leave to appeal against that sentence.

4 The robbery was in breach of a bond associated with a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act. That bond was revoked and the applicant was ordered to serve that sentence. However, the commencement date of that sentence was such that it was wholly subsumed within the non-parole period for the armed robbery, and leave to appeal against it is not sought.

5 The facts of the armed robbery can be stated shortly. In the morning of 30 September 2007, the applicant entered the store of a service station at St Marys and presented a knife to the console operator, a woman in her thirties. He demanded money from a cash drawer, saying, “I’m not going to hurt you or anything. I don’t want to hurt you.” She handed him the cash, totalling $102, and he left the service station in a taxi. Notwithstanding his statement to her that he did not wish to hurt her, she feared that she…

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.

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Details

Case: [2010] NSWCCA 3
Decision Date: 11 February 2010

CaseChat Overview and Summary

The applicant, Michael Lawrence Waugh, also known as Willoughby, appealed against the sentence imposed by the Supreme Court of New South Wales for armed robbery. The case was heard by the High Court of Australia, which was tasked with determining whether the sentencing judge appropriately considered the applicant's mental condition resulting from drug use and his challenging background. Furthermore, the court had to decide if the impact of the applicant's imprisonment on his family should have been factored into the sentencing decision.

The primary legal issues revolved around whether the sentencing judge failed to appropriately weigh the mitigating factors of the applicant's drug-induced mental condition and his troubled past. Additionally, the court had to assess if the sentencing judge should have considered the broader implications of the applicant's imprisonment on his family. The applicant argued that these factors warranted a more lenient sentence, given the potential for rehabilitation and the adverse effects of his incarceration on his dependents.

The High Court held that the sentencing judge did not adequately consider the extent of the applicant's drug-induced mental condition and the significance of his troubled background. The court found that the judge's failure to properly weigh these mitigating factors constituted a substantial error in the sentencing process. Furthermore, the court ruled that the sentencing judge should have taken into account the effect of the applicant's imprisonment on his family, as this was a relevant consideration in determining an appropriate sentence. The court granted leave to appeal on these grounds, finding that the applicant's sentence was excessive given the mitigating circumstances.

The final orders of the court included granting leave to appeal and directing the Court of Criminal Appeal to reconsider the applicant's sentence, taking into account the factors identified by the High Court. The Court of Criminal Appeal was also instructed to ensure that the sentencing judge appropriately balanced the mitigating circumstances against the seriousness of the offence in reaching a new sentencing determination.

Orders