R v Wallace

Case [2007] NSWCCA 63

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v Wallace [2007]  NSWCCA 63

FILE NUMBER(S):
2006/2208

HEARING DATE(S):               27 February 2007

JUDGMENT DATE: 14 March 2007

PARTIES:
Regina
Michael Anthony Wallace

JUDGMENT OF:       Sully J Bell J Hoeben J   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):          2006/623

LOWER COURT JUDICIAL OFFICER:     James J

LOWER COURT DATE OF DECISION:    8 September 2006

COUNSEL:
D. Arnott SC - Crown
S. Odgers SC - Responent

SOLICITORS:
S. Kavanagh - Crown
S. O'Connor - Respondent

CATCHWORDS:

LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

CASES CITED:
R v Way (2004) 60 NSWLR 168
Chaplin v The Queen (2006) 160 A Crim R 85

DECISION:
Crown appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/2208

SULLY J
BELL J
HOEBEN J

14 March 2007

Judgment

REGINA  v  Michael Anthony WALLACE

SULLY J:             

Introduction

  1. This is a Crown Appeal brought pursuant to section 5D of the Criminal Appeal Act 1912 (NSW). The appeal concerns a sentence of imprisonment passed upon the respondent, Mr. Wallace, by James J of this Court on 8 September 2006.

  2. Between 20 March 2006 and 5 April 2006 the respondent stood trial before James J and a jury of twelve upon an indictment charging that on or about 19 November 2003 he had murdered one Zoe Zou. The statutory maximum penalty upon conviction of the crime of murder is one of imprisonment for life.

  3. On 20 March 2006 the respondent, having been duly indicted, pleaded not guilty of the crime of murder but guilty of the crime of manslaughter. The Crown refused to accept the plea to manslaughter and the respondent was tried, accordingly, on the charge of murder.

  4. It was not controversial at the trial that the respondent had shot Zoe Zou; and that at the time of his having shot her he had the intent either to kill her or to inflict upon her grievous bodily harm. The only live issue at the trial was one of provocation.

  5. The jury found the respondent guilty as charged. It must follow that the jury was satisfied that the Crown had eliminated any reasonable possibility of provocative conduct on the part of the victim such as would justify reducing the criminal culpability of the respondent from the level appropriate to the crime of murder to the level appropriate to the crime of manslaughter.

  6. In due course James J sentenced the respondent to imprisonment for a non-parole period of 14 years with a balance of term of 6 years. It is this sentence against which the Crown now appeals upon the basis that the sentence is manifestly inadequate.

The Relevant Facts

  1. It is convenient to take these, at least initially, from the written submissions of the Crown. The relevant material will be found at paragraphs 5 through 19 of the written submissions:

    “5.The deceased lived in an apartment block called Quay Apartments. In 1998 she met Mr. Timothy Titheradge, a wealthy man who had…

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AGLC
R v Wallace [2007] NSWCCA 63
Case
[2007] NSWCCA 63
Decision Date

CaseChat Overview and Summary

In the case of R v Wallace, the respondent, who had been convicted of murder, appealed against the sentence imposed by the Supreme Court of Victoria. The primary issue in the appeal was whether the sentence, which included a non-parole period of 14 years, constituted an appellable error given the nature of the crime and the conditions of the respondent’s imprisonment. The court had to determine whether the significant reduction in the non-parole period from the standard 20 years was justified, considering the cold-blooded nature of the murder and the harsh conditions of the respondent's imprisonment.

The court considered the principle that a sentence should reflect both the culpability of the crime and the conditions under which the offender will serve their sentence. It found that the jury’s findings regarding the nature of the murder were well-supported and that the respondent’s prospects of serious physical violence were indeed severe. Given these conditions, the court held that the sentencing judge was entitled to reduce the non-parole period to 14 years, thereby striking a balance between appropriate punishment and the harsh realities of the respondent’s life in prison.

The appeal court concluded that while there were aspects of the sentencing judge’s reasoning that could be questioned, the overall sentence did not manifest an appellable error. The court emphasised that the sentence did not confuse vindication with vindictiveness, and thus upheld the original sentence. All judges agreed that the appeal should be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SULLY J
James J gave effect to that proposition by reducing the respondent’s non-parole period from the standard non-parole level of 20 years to 14 years. I am unpersuaded that such measure of departure from the standard non-parole period manifests appellable error. The killing itself must surely be regarded, especially given the findings of the jury on the only live issue at trial, as having been cold-blooded and, therefore, of high objective culpability. I think, however, that the respondent’s conditions of imprisonment, as established by clear and convincing evidence placed before James J, are so harsh, and the threat of serious physical violence is so real and constant, that James J was entitled to take the view that a non-parole period of 14 years and a balance of term of 6 years, struck a sentencing balance which did not make the mistake, not infrequently encountered in public discourse on the topic of sentencing in criminal cases, of confusing vindication with vindictiveness.Conclusions and Orders As I have explained earlier herein, I am of the opinion that there are aspects of James J’s reasoning which are, as I respectfully think, incorrect. I am, however, unpersuaded that the end result at which his Honour arrived manifests, in the sense and to the degree that the relevant law requires, appellable error. In my opinion the Crown appeal should be dismissed. BELL J: I agree with Sully J. HOEBEN J: I agree with Sully J.

Ratio Decidendi

Legal Principle Established

Established by: SULLY J

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