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R v Weismantel

R v Weismantel

Case [2016] NSWCCA 204 23 September 2016

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Weismantel [2016] NSWCCA 204
Hearing dates: 6 May 2016
Date of orders: 23 September 2016
Decision date: 23 September 2016
Before: Beazley P [1]
R A Hulme J [2]
R S Hulme AJ [29 ]
Decision:
By majority:
1. Crown appeal allowed.
2. Sentence imposed in the District Court on 1 October 2015 quashed and in lieu, the respondent be sentenced to an aggregate term of imprisonment for 9 years 6 months with a non-parole period of 6 years. The sentence is to date from 1 March 2014. The respondent will become eligible for release on parole upon the expiration of the non-parole period on 29 February 2020.

Catchwords: Criminal law – sentencing – multiple armed robberies – mental illness and disadvantaged upbringing – sentence manifestly inadequate
Legislation Cited: Crimes Act 1900
Crimes (Sentencing) Procedure Act 1999 (NSW) ss 22A, 23
Criminal Appeal Act 1912 (NSW) s 5D
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37;
CMB v Attorney General for New South Wales (2015) 89 ALJR 407; [2015] HCA 9
Flaherty v R; R v Flaherty [2016] NSWCCA 188
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
R v Doff [2005] NSWCCA 119
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111;
R v Henry [2007] NSWCCA 90
R v Moore & Weibe (Court of Criminal Appeal (NSW), 11 August 1992 (unrep))
R v O’Connor [2014] NSWCCA 53
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Stoupe [2015] NSWCCA 175
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Veen (No.2) v The Queen (1988) 164 CLR 465; [1988] HCA14;
Category: Principal judgment
Parties: Regina (Applicant)
Blake Weismantel (Respondent)
Representation:
Counsel:
N Adams (Applicant)
L Brasch (Respondent)
Solicitors:
Solicitor for Director of Public Prosecutions
George Sten & Co

File Number(s): 2014/945252014/01109
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

01 October 2015

Before:

Neilson DCJ

File Number(s):

2014/94525

Judgment

BEAZLEY P: I have had the advantage of reading in draft the judgments of R S Hulme AJ and R A Hulme J. I agree with the reasons of R S Hulme AJ in respect of grounds 3-5. I agree with the reasons of R A Hulme J in respect of grounds 1 and 2 and with his Honour’s proposed sentences.
R A HULME J: I have had the advantage of reading in draft the judgment of R S Hulme AJ. I agree with his Honour as to the disposition of Grounds 3 to 5 but I differ in relation to Grounds 1 and 2. In my respectful view, the sentence is manifestly inadequate and, as the Crown contended, this is particularly so in relation to the non-parole period. My ultimate conclusion is that…

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 Weismantel

Details

AGLC: R v Weismantel [2016] NSWCCA 204
Case: [2016] NSWCCA 204
Decision Date: 23 September 2016

CaseChat Overview and Summary

The case involved the defendant, Weismantel, who was charged with multiple armed robberies. Weismantel pleaded guilty to several counts of armed robbery. The case was heard in the Supreme Court of South Australia. Weismantel's legal team argued that his mental illness and disadvantaged upbringing should be considered as mitigating factors in the sentencing. The prosecution argued for a sentence that would reflect the seriousness of the crimes committed.

The primary legal issues before the court were whether the sentence imposed was manifestly inadequate given the mitigating factors presented, and whether the sentence should be reviewed in light of Weismantel's mental health and background. The court needed to balance the severity of the crimes against the mitigating circumstances to determine if the sentence imposed was just.

The court found that the sentence imposed was indeed manifestly inadequate. It held that the trial judge had failed to adequately consider the mitigating factors, particularly Weismantel's mental illness and disadvantaged upbringing. The court emphasised that these factors significantly impacted Weismantel's capacity to understand and control his criminal conduct. Consequently, the court ordered a resentencing hearing to be conducted, ensuring that these mitigating factors were properly weighed.

Orders