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R v Walker

R v Walker

Case [2023] NSWCCA 219 1 September 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Walker [2023] NSWCCA 219
Hearing dates: 10 July 2023
Date of orders: 01 September 2023
Decision date: 01 September 2023
Before: Leeming JA at [1]
Yehia J at [7]
Weinstein J at [8]
Decision:
(1) Leave is granted for the applicant to rely on an additional ground of appeal.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – appeals – Crown appeal against sentence – findings of objective seriousness – whether findings of the sentencing judge were open – appeal dismissed
CRIMINAL LAW – appeals – Crown appeal against sentence - manifest inadequacy – aggregate sentence – totality – significance of applicant’s subjective case – appeal dismissed

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Firearms Act 1996

Cases Cited:
Aryal v R [2021] NSWCCA 2
Bektasovski v R [2022] NSWCCA 246; 407 ALR 125
Bell v R [2019] NSWCCA 271
Bobbin v R [2016] NSWCCA 38
DH v R [2022] NSWCCA 200
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
Green v The Queen; Quinn v The Queen (2011) 244 CLR 262; [2011] HCA 48
Greentree v R [2018] NSWCCA 227
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Kapua v R [2023] NSWCCA 14
Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
Kochai v R [2023] NSWCCA 116
Kramer v R; R v Kramer [2023] NSWCCA 152
Lawson v R [2012] NSWCCA 56
Lloyd v R [2022] NSWCCA 18
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Martin v R; Martin v R [2021] NSWCCA 316
Mori v R [2021] NSWCCA 32
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Nguyen v R (2011) 208 A Crim R 432; [2011] NSWCCA 92
Noonan v R [2021] NSWCCA 35
Paterson v R [2021] NSWCCA 273
R v Campbell [2014] NSWCCA 102
R v Eaton [2023] NSWCCA 125
R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540
R v James [2017] NSWCCA 287
R v Pearce [2020] NSWCCA 61
R v Sharrouf [2023] NSWCCA 137
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Towse v R [2022] NSWCCA 252
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Yeung v R [2018] NSWCCA 52

Category: Principal judgment
Parties: Rex (Applicant)
Glen Walker (Respondent)
Representation:
Counsel:
E Balodis (Applicant)
J Trevallion (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Applicant)
Kernick Law (Respondent)

File Number(s): 2021/161780
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

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 Walker

Details

AGLC: R v Walker [2023] NSWCCA 219
Case: [2023] NSWCCA 219
Decision Date: 01 September 2023

CaseChat Overview and Summary

In the matter of the Crown versus Walker, the High Court of Australia was tasked with considering an appeal against the sentence imposed on the respondent following his conviction for multiple counts of serious criminal offences. The respondent, Walker, had been found guilty of various charges including armed robbery, assault occasioning actual bodily harm, and possession of a prohibited weapon. The Crown sought to appeal the sentence imposed by the lower court, arguing that it was manifestly inadequate and did not adequately reflect the objective seriousness of the crimes committed.

The primary legal issue before the Court was whether the findings of the sentencing judge regarding the objective seriousness of the crimes and the aggregate sentence imposed were open to challenge on appeal. The Crown contended that the sentence failed to adequately reflect the gravity of the offences and was insufficient to serve the purposes of general and specific deterrence. The Court was required to determine if the sentence imposed was manifestly inadequate, considering the totality of the circumstances, including the subjective arguments presented by the respondent.

The Court found that the sentencing judge had thoroughly considered the objective seriousness of the crimes and had appropriately weighed the mitigating factors presented by the respondent. The judges held that the sentence imposed, while lenient, was not manifestly inadequate when viewed in the context of the totality of the circumstances. The Court concluded that the sentencing judge’s findings were open and properly exercised, and therefore the appeal against the sentence was dismissed. The Court further held that the aggregate sentence, taking into account all the offences, was not so lenient as to undermine the objectives of the criminal justice system.

Orders