R v Wigney - [2004] NSWCCA 171

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Wigney [2004] NSWCCA 171

FILE NUMBER(S):
60509/03

HEARING DATE(S): Monday 3 May 2004

JUDGMENT DATE: 02/06/2004

PARTIES:
Regina v Shane John Wigney

JUDGMENT OF: Grove J Dunford J Howie J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70064/02

LOWER COURT JUDICIAL OFFICER: Adams J

COUNSEL:
E. Wilkins (Crown/Applicant)
P. Byrne SC (Respondent)

SOLICITORS:
S. Kavanagh (Crown)
S. O'Connor (Respondent)

CATCHWORDS:
CRIMINAL LAW
SENTENCE
MURDER AND OTHER UNRELATED OFFENCES
CROWN APPEAL
INADEQUACY

LEGISLATION CITED:

DECISION:
APPEAL ALLOWED
RESPONDENT RESENTENCED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60509/03
GROVE J
DUNFORD J
HOWIE J
Wednesday 2 June 2004

REGINA v SHANE JOHN WIGNEY

Judgment

GROVE J: This is a Crown appeal asserting the inadequacy of sentences imposed by Adams J on 3 December 2003. Notice of appeal was filed and served on the respondent on 10 December 2003. For a series of crimes an effective overall sentence of sixteen years eight months with a non parole period of eleven years six months was imposed.
The chronicle of the respondent’s offences commenced on 7 May 2001 when he broke and entered house premises at Ashbury by smashing an entry door. He stole electric and electronic equipment valued at $6,300. He apparently injured himself in gaining entry and later a blood deposit was found to match DNA database information concerning him. Arising out of this an offence of breaking, entering and stealing was sought to be, and was taken into account in the sentencing proceedings in respect of which this appeal is concerned by the respondent’s completion of an appropriate Form 1.
At the time of this and all other relevant offences, the respondent was on parole following conviction for other offences of breaking, entering and stealing at Sydney District Court on 10 February 2000. His parole expiry date was scheduled for 28 January 2002.
On 29 June 2001 the respondent broke into premises at Ryde by using a jemmy on the front door. The whole premises were ransacked and electrical, camera and house entertainment items valued at approximately $20,000 were stolen. Also taken was a bank access card. Later that day the respondent’s image was captured on an ATM surveillance video as he withdrew $1,500 by use of the stolen card. Offences of breaking, entering and stealing and dishonestly obtaining money by deception were included on the Form 1 which the respondent signed.
On 11 July 2001 in company with another male the respondent, whilst armed with a .45 calibre colt pistol, robbed jewellery and money from shop premises at Hurlstone Park. Whilst making an escape, the respondent fired a shot into the air from his pistol. A charge of robbery whilst armed with a dangerous weapon was the second count in the indictment presented against the respondent.
At 2.20 am on Thursday 19 July 2001 the respondent, again in company with another male, entered the Taverner’s Hotel at Leichhardt. The respondent was armed with a .45 calibre colt pistol (subsequently…

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 Wigney

Details

AGLC: R v Wigney [2004] NSWCCA 171
Case: [2004] NSWCCA 171
Decision Date: 2 June 2004

CaseChat Overview and Summary

The case of R v Wigney was brought before the court as an appeal by the Crown against the sentencing of the respondent, Wigney, who had been found guilty of murder and other unrelated offences. The Crown argued that the sentence imposed on Wigney was inadequate, and sought a more severe penalty. The court was required to consider whether the original sentence was indeed inadequate and, if so, what the appropriate sentence should be.

The primary legal issue before the court was whether the original sentence imposed on Wigney was inadequate in light of the gravity of the crimes committed. The court had to consider the principles of sentencing in relation to murder, as well as the principles of totality and proportionality. The court also had to consider whether the other unrelated offences warranted a harsher sentence, and whether the cumulative effect of all the offences should be taken into account.

The court held that the original sentence was inadequate, taking into account the gravity of the murder offence, as well as the other unrelated offences. The court emphasised the need for sentences to reflect the seriousness of the crimes committed, and to act as a deterrent to others. The court found that the sentence imposed did not adequately reflect the culpability of Wigney, and that a more severe penalty was warranted. The court then proceeded to impose a new sentence, taking into account all the relevant factors. The court also noted that the sentence should be proportionate to the crimes committed, and should not be excessive.

The final orders of the court were that the original sentence imposed on Wigney be set aside, and that a new sentence be imposed in its place. The new sentence was to reflect the seriousness of the crimes committed, and to act as a deterrent to others. The court emphasised the need for sentences to be proportionate, and to reflect the culpability of the offender. The court also noted that the sentence should take into account all the relevant factors, including the cumulative effect of all the offences.

Orders