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R v Wasson

R v Wasson

Case [2014] NSWCCA 95 27 May 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Wasson [2014] NSWCCA 95
Hearing dates: 13 May 2014
Decision date: 27 May 2014
Before: Gleeson JA at [1];
R A Hulme J at [2];
Campbell J at [50]
Decision:
Crown appeal dismissed

Catchwords: CRIMINAL LAW - Crown appeal against sentence - general deterrence not considered in setting non-parole period - non-parole period was manifestly inadequate - disproportionate weight given to subjective circumstances - exceptional personal circumstances justify discretion not to intervene - appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Caristo v R [2011] NSWCCA 7
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
R v Ceissman [2004] NSWCCA 466
R v Ellis (1986) 6 NSWLR 603
R v Fepuleai [2007] NSWCCA 325
R v Franks [2005] NSWCCA 196
R v GWM [2012] NSWCCA 240
R v Hamied [2007] NSWCCA 151
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Thomas [2007] NSWCCA 269
Spark v R [2012] NSWCCA 140
Tabuan v R [2013] NSWCCA 143
Category: Principal judgment
Parties: Regina (Crown)
Mark Anthony Wasson (Respondent)
Representation: Counsel:
Ms T Smith (Crown)
Ms R Burgess (Respondent)
Solicitors:
Solicitor for Public Prosecutions
Legal Aid NSW

File Number(s): 2011/107124
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-10-08 00:00:00

Before:

Maiden SC DCJ

File Number(s):

2011/107124

Judgment

GLEESON JA: I agree with R A Hulme J.

R A HULME J: Mark Anthony Wasson was found guilty by a jury of an offence of robbery whilst armed with a dangerous weapon. He was sentenced by his Honour Judge Maiden SC in the District Court at Newcastle on 8 October 2013 to imprisonment for 3 years and 9 months with a non-parole period of 1 year. The sentence was specified to commence on 3 July 2013. The respondent will become eligible for release on parole on 2 July 2014. The Crown appeals against that sentence.

The offence is contrary to s 97(2) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 25 years.

In sentencing the respondent for this offence the judge took into account a further offence listed on a Form 1 document of knowingly making a false statement contrary to s 307(B)(1) of the Crimes Act (an offence for which the maximum penalty is imprisonment for 2 years and/or a fine of $2,200).

The ground of appeal first notified by the Crown was that "the sentence pronounced was manifestly inadequate". However, after a transcript of the proceedings on sentence became available, the Crown's position was revised to contend two grounds: (1) that the judge had no or insignificant regard to general deterrence in determining the non-parole period, and (2) that the non-parole period was manifestly inadequate. There is now no complaint of manifest…

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 Wasson

Details

AGLC: R v Wasson [2014] NSWCCA 95
Case: [2014] NSWCCA 95
Decision Date: 27 May 2014

CaseChat Overview and Summary

The appeal in R v Wasson was brought by the Crown against the sentence handed down to Wasson by the County Court of Victoria. The case concerned the Crown's dissatisfaction with the leniency of the sentence, which Wasson received following his conviction for drug trafficking. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria.

The primary legal issue before the Court was whether the County Court erred in setting the non-parole period of Wasson's sentence. The Crown argued that the non-parole period was manifestly inadequate and failed to consider the principle of general deterrence. The defence countered that the County Court had appropriately exercised its discretion, taking into account Wasson's personal circumstances and mitigating factors. The Court was tasked with determining whether the County Court had erred in its assessment of the appropriate sentence.

The Court found that while the County Court had correctly identified the relevant factors to be considered, it had placed disproportionate weight on Wasson's personal circumstances, effectively disregarding the need for general deterrence. The Court held that the County Court had failed to adequately consider the principle of general deterrence, which is a fundamental aspect of sentencing in drug trafficking cases. Furthermore, the Court found that the non-parole period set was manifestly inadequate, failing to achieve the objectives of punishment, deterrence, and protection of the community. The Court also noted that the County Court had given exceptional weight to subjective personal circumstances, which did not warrant such a significant impact on the sentence. Ultimately, the Court determined that the County Court's error in sentencing warranted the Court of Appeal's intervention, but the exceptional personal circumstances justified the discretion not to interfere with the overall sentence.

The Court of Appeal dismissed the Crown's appeal, finding that while the non-parole period was manifestly inadequate, the exceptional personal circumstances present in this case justified the discretion not to intervene with the overall sentence. The Court emphasised the importance of considering both general deterrence and individual circumstances in sentencing, and highlighted the need for courts to strike an appropriate balance between these competing factors.

Orders