R v Wall

Case [2024] NSWDC 642 22 November 2024

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District Court

New South Wales

Medium Neutral Citation: R v Wall [2024] NSWDC 642
Hearing dates: 17 and 29 October 2024
Date of orders: 22 November 2024
Decision date: 22 November 2024
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1   In relation to the severity appeal, the orders I make are:
(1)   The appeal is allowed.
(2)   I set aside the penalty imposed by the magistrate.
(3) In lieu thereof, the penalty for the severity appeal offences is included in the aggregate sentence imposed at [4] below.
Penalty
2   Jamie Wall is convicted.
3   Taking into account the matter on the Form 1, the sentence for the offence of detain for advantage I would have imposed after allowing for the appropriate discount is 3 years.
4   I impose an aggregate sentence for the severity appeal offences and the sentence matter of 3 years and 6 months with a non-parole period of 1 year and 9 months to date from 8 April 2023.
5   The non-parole period will expire on 7 January 2025 and the head sentence will expire on 7 October 2026.
6   The offender will be eligible to be released on parole on 7 January 2025.

Catchwords:
CRIME — Violent offences — Detain for psychological advantage
CRIME — Firearms offences — Use/Possess prohibited pistol/firearm
CRIME — Apprehended violence orders — Contravene apprehended violence order

Legislation Cited:
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996

Cases Cited:
Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147
Chararav R [2006] NSWCCA 244
Fox v Percy (2003) 214 CLR 118
Hili v The Queen (2010) 242 CLR 520
Muldrock v R (2011) 244 CLR 120
R v Olbrich (1999) 199 CLR 270

Category: Sentence
Parties: Rex (Crown/Respondent)
Jamie Wall (Offender/Appellant)
Representation:
Counsel:
S Climo (Offender/Appellant)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
SCB Legal (Offender/Appellant)

File Number(s): 2023/6672
2024/11460
Publication restriction: None

JUDGMENT

Introduction

Sentence

Jamie Wall (the offender) appears for sentence after pleading guilty in the Local Court to an offence of detain a person with intent to obtain psychological advantage, occasion actual bodily harm contrary to s 86(2)(b) Crimes Act 1900. The maximum penalty for this offence is 20 years imprisonment.
The offender also asks the Court to take into account an offence of possess prohibited firearm contrary to s 7(1) Firearms Act 1996 on a Form 1 when passing sentence for this offence.

Severity appeal

The offender was sentenced in the Local Court on 19 September 2024 to an aggregate term of 20 months imprisonment with a non-parole period of 13 months for the following offences:

Sequence 1: Act with intent to influence witness contrary to s 323(a) Crimes Act 1900. The indicative term was 18 months.

Sequence 4: Attempt to breach prohibition/restriction in domestic AVO contrary to s 14(9) Crimes (Domestic and Personal Violence) Act 2007. The indicative term was 8 months.

Sequence 5: Contravene…

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 Wall

Details

AGLC: R v Wall [2024] NSWDC 642
Case: [2024] NSWDC 642
Decision Date: 22 November 2024

CaseChat Overview and Summary

Jamie Wall was convicted and sentenced for a range of serious criminal offences. The court was required to decide on the severity of the penalty and to determine an appropriate aggregate sentence. The matter came before the court for a severity appeal, focusing on the penalty imposed by the magistrate and the applicability of the discount for the offence of detain for advantage. The court also needed to consider the aggregate sentence for the severity appeal offences and the sentence matter.

The court began by examining the severity of the penalty imposed by the magistrate, specifically for the offence of detain for advantage. It found that the penalty was excessive and decided to set aside the penalty imposed by the magistrate. The court then proceeded to determine an appropriate penalty for this offence, taking into account the appropriate discount. It concluded that a penalty of 3 years would have been appropriate, had the matter been considered in the first instance. The court further addressed the aggregate sentence for the severity appeal offences and the sentence matter, imposing a total sentence of 3 years and 6 months with a non-parole period of 1 year and 9 months. The court considered the date of the offender's detention, which was 8 April 2023, and set the non-parole period to expire on 7 January 2025, and the head sentence to expire on 7 October 2026.

In summary, the court allowed the severity appeal, set aside the penalty imposed by the magistrate, and imposed a sentence of 3 years and 6 months for the severity appeal offences and the sentence matter, with a non-parole period of 1 year and 9 months. The offender will be eligible for parole on 7 January 2025.

Orders

Orders of the court

1 In relation to the severity appeal, the orders I make are:

(1) The appeal is allowed.

(2) I set aside the penalty imposed by the magistrate.

(3) In lieu thereof, the penalty for the severity appeal offences is included in the aggregate sentence imposed at [4] below.

Penalty

2 Jamie Wall is convicted.

3 Taking into account the matter on the Form 1, the sentence for the offence of detain for advantage I would have imposed after allowing for the appropriate discount is 3 years.

4 I impose an aggregate sentence for the severity appeal offences and the sentence matter of 3 years and 6 months with a non-parole period of 1 year and 9 months to date from 8 April 2023.

5 The non-parole period will expire on 7 January 2025 and the head sentence will expire on 7 October 2026.

6 The offender will be eligible to be released on parole on 7 January 2025.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v Wall [2024] NSWDC 642

Most Recent Citation

DPP v O'Neill [2015] VSCA 325

Cases Citing This Decision

R v DN [2023] NSWCCA 39
Citation 1

…avel [2014] NSWCCA 56 R v GWM [2012] NSWCCA 240 R v JW (2020) 77 NSWLR 7; [2010] NSWCCA 49 R v PC [2022] NSWCCA 59 R v Wall (2002]) 71 NSWLR 692; [2002] NSWCCA 42 TP v R [2018] NSWCCA 140 Wright v R [2019] NSWCCA 134 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Appellant) DN (Res…
R v Lau [2022] NSWCCA 131
Citation 2 (Para 72)

…only interfere where error, either latent or patent, is demonstrated. [67] 64. Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44. 65. R v Wall (2002) 71 NSWLR 692; [2002] NSWCCA 42 at [70] per Wood CJ at CL, Meagher JA and Bell J agreeing) citing Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49. 66. Lownde…
R v Yiu; R v Yau [2018] NSWCCA 155
Citation 3 (Para 85)

…Those principles were summarised by Wood CJ at CL in R v Wall (2002) 71 NSWLR 692; [2002] NSWCCA 42 (with whom R Meagher JA and Bell J agreed). His Honour summarised the principles that then applied in the following manner:…
R v Hookey [2018] NSWCCA 147
Citation 4 (Para 20)

…Bearing in mind those qualifications, the summary of the principles on a Crown appeal adumbrated by Wood CJ at CL in R v Wall (2002) 71 NSWLR 692; [2002] NSWCCA 42 continues to apply. The principles were summarised at [70] of R v Wall and include the following:…
Director of Public Prosecutions (NSW) v Dowd [2018] NSWCCA 102
Citation 5 (Para 70)

…sentencing standards.” ( Everett v The Queen at 300.) (See the authorities referred to by Wood CJ at CL in R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR 692 at [70](c).) The clarification that manifest inadequacy or inconsistency involves correction on a matter of principle, will be of significance in terms of determinin…
R v Melrose [2016] QCA 202
Citation 6 (Para 22)

…and the fact that they are so difficult to discover and successfully prosecute is one of the reasons why general deterrence is so important.” [7](2002) 71 NSWLR 692; [2002] NSWCCA 42 at [89].…
R v Mulligan [2016] NSWCCA 47
Citation 7 (Para 70)

…ourt’ and ‘generally ... towards the lower end of the available range’ ( R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR 692 at [70] per Wood CJ at CL, with whom Meagher JA and Bell J agreed). [97] It is unnecessary to attempt to reconcile these different formulations. The basic principle was well established and, as the j…
DPP v O'Neill [2015] VSCA 325
Citation 8 (Para 1)

…with whom Johnson and Garling JJ agreed); R v Loveridge [2014] NSWCCA 120 (multiple grounds of specific error upheld). [61] R v Wall (2002) 71 NSWLR 692, 707 [70] (Woods CJ at CL with whom Meagher JA and Bell J agreed); R v Clarke [1996] 2 VR 520, 522 (Charles JA with whom Winneke P and Hayne JA agreed); Green v The…
CMB v Attorney-General (NSW) [2015] HCA 9
Citation 9 (Para 12)

…and, to the same effect, 327 per Jacobs J (Stephen J agreeing at 312), 329-330 per Murphy J. [68] Allpass (1993) 72 A Crim R 561 at 562-563; R v Wall (2002) 71 NSWLR 692 at 707 [70] per Wood CJ at CL (Meagher JA agreeing at 694 [1], Bell J agreeing at 713 [93]); R v JW (2010) 77 NSWLR 7 at 27 [105]-[107] per Spigelman…
R v Martin [2014] NSWCCA 283
Citation 10 (Para 1)

…minal Appeal retains a discretion to decline to interfere with a sentence, even though it is erroneously lenient. See also R v Wall [2002] NSWCCA 42; 71 NSWLR 692 at [70]; R v Mereb; R v Younan [2014] NSWCCA 149 at [31]-[32].…
Louizos v R [2014] NSWCCA 242
Citation 11 (Para 1)

…ear (see Malvoso v R [1989] HCA 58; 168 CLR 227; 43 A Crim R 451; Everett v R [1994] HCA 49; 181 CLR 295; 74 A Crim R 241; R v Wall [2002] NSWCCA 42; 71 NSWLR 692 at [70]) and I can discern nothing in the approach of the Court of Criminal Appeal to suggest that the Court was unaware of them (Howie J having made…
Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282
Citation 12 (Para 1)

…Section 8(1) of the Crimes (Sentencing Procedure) Act applies to federal offences by reason of s 20AB of the Crimes Act : R v Wall [2002] NSWCCA 42; 71 NSWLR 692 at [84] (Wood CJ at CL; Meagher JA and Bell J agreeing).…
R v Donald [2013] NSWCCA 238
Citation 13 (Para 1)

…ation and treatment during that period. Nonetheless, the Crown contends that the delay did not of itself justify any extension of leniency : R v Wall (2002) 71 NSWLR 692 at [89] : R v Kearns [2003] NSWCCA 367 at [68] - [69] ; R v Scook v R (2008) 185 A Crim R 164 at [31] - [34], [58] - [65].…
R v Winter [2012] NSWCCA 218
Citation 14 (Para 16)

…demonstrated: see also Griffiths v R (1977) 137 CLR 293 at 310 (Barwick CJ). However, as was indicated by Wood CJ at CL in R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR 692 the court's power to intervene "extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the se…
R (Cth) v Cheung; R (Cth) v Choi [2010] NSWCCA 244
Citation 15

…309; (2000) 49 NSWLR 383 R v To [2007] NSWCCA 200; (2007) 172 A Crim R 121 R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR 692 R v Wong; R v Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340 Song Lin v R [2007] NSWCCA 368 Tyler v R; R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458 TYN v R [2009] NSWCCA 146; (2009) 195 A…
R v Nguyen; R v Pham [2010] NSWCCA 238
Citation 16

…NSWCCA 194 Jimmy v R [2010] NSWCCA 60; 240 FLR 27 R v Pham [2009] NSWDC 362 Everett v The Queen [1994] HCA 49; 181 CLR 295 R v Wall [2002] NSWCCA 42; 71 NSWLR 692 R v Lee [2007] NSWCCA 234 House v The King [1936] HCA 40; 55 CLR 499 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 R v Wong and Leung [1999] NSWCCA…
Jimmy v R [2010] NSWCCA 60
Citation 17

…2; (2006) 172 A Crim R 151 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Tiddy [1969] SASR 575 R v Underwood [2005] VSCA 80 R v Wall [2002] NSWCA 42; (2002) 71 NSWLR 692 Rend v The Queen [2006] NSWCCA 41; (2006) 160 A Crim R 178 Rexhaj (NSWCCA, 29 February 1996, unreported) Sharpe v The Queen [2002] NSWCCA 96 Shen v R…
R v JW [2010] NSWCCA 49
Citation 18

…04] NSWCCA 391; (2004) 150 A Crim R 104 R v Voisin (1918) 1 KB 531 R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR 692 R v Wilton (1981) 28 SASR 362; (1981) 4 A Crim R 5 R v Wright [2009] NSWCCA 3 R v Zamagias [2002] NSWCCA 17 Strong v The Queen [2005] HCA 30; (2005) 224 CLR 1 The Queen v Lee (1950) 82 CLR 133 The Queen v…
R v Jajou [2009] NSWCCA 167
Citation 19 (Para 22)

…w understandable attention to the well known principles that apply to Crown appeals enunciated by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70], (2002) 71 NSWLR 692 at [70].…
R v El-Chammas [2009] NSWCCA 154
Citation 20

…158 A Crim R 93 Mulato v R [2006] NSWCCA 282 R v AEM Snr [2002] NSWCCA 58 R v GDP (1991) 53 A Crim R 112 R v Hearne (2001) 124 A Crim R 451 R v Wall (2002) 71 NSWLR 692 R v Way (2004) 60 NSWLR 168 Waters v R [2007] NSWCCA 219 PARTIES: Regina Robert El-Chammas FILE NUMBER(S): CCA 2008/13152 COUNSEL: V Lydiard (Crown)…

See all citing cases →

Cases Cited

Muldrock v The Queen [2011] HCA 39
Citation 1 (Para 117)

…ess weight where an offender suffers from a mental condition because the offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53] – [54]. The offender has suffered from complex mental health conditions for an extended period. I am satisfied that his mental health conditi…
Hili v The Queen [2010] HCA 45
Citation 2 (Para 128)

…ave had regard to the comparable cases referred to me by the parties and I have taken into account the limitations of that exercise: Hili v The Queen (2010) 242 CLR 520.…
Charara v R [2006] NSWCCA 244
Citation 3

…ntencing Procedure) Act 1999 Firearms Act 1996 Cases Cited: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147 Charara v R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Hili v The Queen (2010) 242 CLR 520 Muldrock v R (2011) 244 CLR 120 R v Olbrich (1999) 199 CLR 270 Category: Sentence Parties: Rex (…
Fox v Percy [2003] HCA 22
Citation 4

…) Act 1999 Firearms Act 1996 Cases Cited: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147 Charara v R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Hili v The Queen (2010) 242 CLR 520 Muldrock v R (2011) 244 CLR 120 R v Olbrich (1999) 199 CLR 270 Category: Sentence Parties: Rex (Crown/Respondent) J…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 5 (Para 10)

…e taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147.…
R v Olbrich [1999] HCA 54
Citation 6 (Para 9)

…oubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
2 mentions (from Para 7)
Crimes (Appeal and Review) Act 2001 (NSW)
1 mention (from Para 11)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
1 mention (from Para 2)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Firearms Act 1996 (TAS)
1 mention (from Para 2)

Medium Neutral Citation:	R v Wall [2024] NSWDC 642
Hearing dates:	17 and 29 October 2024
Date of orders:	22 November 2024
Decision date:	22 November 2024
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 In relation to the severity appeal, the orders I make are: (1) The appeal is allowed. (2) I set aside the penalty imposed by the magistrate. (3) In lieu thereof, the penalty for the severity appeal offences is included in the aggregate sentence imposed at [4] below. Penalty 2 Jamie Wall is convicted. 3 Taking into account the matter on the Form 1, the sentence for the offence of detain for advantage I would have imposed after allowing for the appropriate discount is 3 years. 4 I impose an aggregate sentence for the severity appeal offences and the sentence matter of 3 years and 6 months with a non-parole period of 1 year and 9 months to date from 8 April 2023. 5 The non-parole period will expire on 7 January 2025 and the head sentence will expire on 7 October 2026. 6 The offender will be eligible to be released on parole on 7 January 2025.
Catchwords:	CRIME — Violent offences — Detain for psychological advantage CRIME — Firearms offences — Use/Possess prohibited pistol/firearm CRIME — Apprehended violence orders — Contravene apprehended violence order
Legislation Cited:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996
Cases Cited:	Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147 Chararav R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Hili v The Queen (2010) 242 CLR 520 Muldrock v R (2011) 244 CLR 120 R v Olbrich (1999) 199 CLR 270
Category:	Sentence
Parties:	Rex (Crown/Respondent) Jamie Wall (Offender/Appellant)
Representation:	Counsel: S Climo (Offender/Appellant) Solicitors: Office of the Director of Public Prosecutions (Crown) SCB Legal (Offender/Appellant)
File Number(s):	2023/6672 2024/11460
Publication restriction:	None