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R v Colin Wilkie

R v Colin Wilkie

Case [2003] NSWCCA 69 21 March 2003

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Colin WILKIE [2003] NSWCCA 69 revised - 4/04/2003

FILE NUMBER(S):
60237 of 2002

HEARING DATE(S): 21/03/03

JUDGMENT DATE: 21/03/2003

PARTIES:
REGINA v COLIN WILKIE

JUDGMENT OF: Studdert J Shaw J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1228

LOWER COURT JUDICIAL OFFICER: Urquhart DCJ

COUNSEL:
Crown: R. Hulme, SC
App: L. Flannery

SOLICITORS:
Crown: S.E. O'Connor
App: D.J. Humphreys

CATCHWORDS:
Criminal law - appeal - sentence - parity - co-offender's role in criminal enterprise greater than that of applicant - appeal allowed - resentencing - rehabilitation

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985 (NSW)

DECISION:
Grant leave to appeal; appeal allowed; quash the sentences imposed by Urquhart DCJ on 8 April 2002; In lieu thereof substitute a sentence, for each charge, of two years and six months to commence on 29 August 2001 and expire on 28 February 2004 with a non-parole period to commence on 29 August 2001 and expire on 28 March 2003; applicant should be released on parole at the expiry of the non-parole period.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60237 of 2002
Studdert J
Shaw J
21 March 2003

Regina v Colin Martin WILKIE

Judgment

Shaw J: The applicant seeks leave to appeal against a sentence imposed by Urquhart DCJ on 8 April 2002 in the District Court at Sydney. The applicant pleaded guilty at Central Local Court on 7 December 2001 to a charge pursuant to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DM&T Act”) and a further charge pursuant to s 25(1) of that Act.
Section 25A of the DM&T Act relevantly states:
25A. Offence of supplying prohibited drugs on an ongoing basis
(1) Offence provision
A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence.
Maximum penalty: 3,500 penalty units or imprisonment for 20 years, or both.
The first charge to which the applicant pleaded guilty was that between 22 June 2001 and 19 July 2001 at Glebe he did on three or more separate occasions during a period of thirty consecutive days supply a prohibited drug other than cannabis (namely, heroin) for financial or material reward. The second charge was that between 25 May 2001 and 21 June 2001 at Glebe he did supply a prohibited drug (namely, heroin).
The trial judge sentenced the applicant on each charge to a term of imprisonment of three years to commence on the date of his arrest, 29 August 2001 with a non parole period of one year and ten months to expire on 28 June 2003.
A set of police facts was tendered at the sentencing proceedings without objection. Those facts reveal that the offences for which the applicant was sentenced relate to a police operation undertaken by the Leichhardt Local Area Command since late 2000. At this time the…

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 R v Colin Wilkie

Details

AGLC: R v Colin Wilkie [2003] NSWCCA 69
Case: [2003] NSWCCA 69
Decision Date: 21 March 2003

CaseChat Overview and Summary

The matter of R v Colin Wilkie reached the court where the applicant, Colin Wilkie, sought to appeal his sentence on the basis of parity with his co-offender, who received a lesser punishment despite a greater role in the criminal enterprise. The High Court of Australia was tasked with determining whether the disparity in sentences was justified and whether the original sentence was appropriate.

The legal issues before the court centred on whether the trial judge correctly exercised his discretion in sentencing, particularly in light of the principle of parity which requires that co-offenders be treated equally unless there are justifiable reasons for differing sentences. The court had to consider the roles played by Wilkie and his co-offender, as well as the circumstances surrounding the crime and the principles of rehabilitation and deterrence.

The court found that the trial judge did not adequately justify the disparity in sentences, noting that the co-offender's role was indeed more significant than Wilkie's. Consequently, the court held that the original sentence was excessive and not proportionate to Wilkie's involvement. The appeal was allowed, and the matter was remitted to the sentencing court for resentencing with proper regard to the principle of parity and the individual circumstances of the case. The court emphasised the importance of ensuring that sentences reflect the true culpability of the offender and are proportionate to the crime committed.

Orders