R v Wilkinson - [2004] NSWCCA 468

CITATION: R v Wilkinson [2004] NSWCCA 468

HEARING DATE(S): 06/05/2004

JUDGMENT DATE:
20 December 2004

JUDGMENT OF: McColl JA at 1; Levine J at 2; Hidden J at 3

DECISION: Appeal allowed: sentenced to imprisonment for twelve years, non-parole period nine years, from 9 October 2002.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - aggravated sexual intercourse without consent - two matters on Form 1 - whether judge had regard to standard non-parole period, not applicable to the case - whether proper approach to Form 1 matters - whether adequate weight given to plea of guilty, co-operation, poor health, protection

LEGISLATION CITED: Crimes Act
Crimes (Sentencing Procedure) Act
Criminal Appeal Act

CASES CITED: R v Wilkinson (CCA, unreported, 6 October 1983)
R v Ohar [2004] NSWCCA 83
Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 14
R v McCarroll [1999] NSWCCA 237
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Ellis (1986) 6 NSWLR 603
R v L (CCA, unreported, 17 June 1996)
R v Kain [2004] NSWCCA
Veen v The Queen [No 2] (1988) 164 CLR 465

PARTIES :
Regina (respondent)
Ernest John Wilkinson (applicant)

FILE NUMBER(S): CCA 60013/04

COUNSEL: R Hulme SC (applicant)
G Rowling (Crown)

SOLICITORS: S O'Connor (applicant)
S Kavanagh (respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3029

LOWER COURT
JUDICIAL OFFICER : Maguire DCJ

60013/04

MCCOLL JA
LEVINE J
HIDDEN J
Monday 20 December 2004

Regina v Ernest John Wilkinson

Judgment

1 MCCOLL JA: I agree with Hidden J.

2 LEVINE J: I agree with Hidden J.

3 HIDDEN J: The applicant, Ernest John Wilkinson, pleaded guilty in the District Court to a charge of sexual intercourse without consent in circumstances of aggravation, an offence under s61J of the Crimes Act which carries a maximum sentence of twenty years imprisonment. There were two further charges under the same provision on a Form 1. He was sentenced to imprisonment for eighteen years, to date from the day of his arrest, 9 October 2002, with a non-parole period of thirteen and a half years. He seeks leave to appeal against that sentence.

Facts

4 The three offences were committed over a period between April 2001 and September 2002, when the complainant was between thirteen and fourteen years old. The circumstance of aggravation in each case was that she was under the age of sixteen: s61J(2)(d). She also suffered from a mild intellectual disability, having a mental age of eight to nine years. The applicant knew her because he had previously had a relationship with her mother. The three offences, together with several other incidents of a similar nature, occurred on occasions when she was staying at the applicant’s home.

5 The first of the three offences occurred in the later part of 2001, the second in June 2002, and the third towards the end of September 2002. It is unnecessary to recite the detail of the offences except…

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 Wilkinson

Details

AGLC: R v Wilkinson [2004] NSWCCA 468
Case: [2004] NSWCCA 468
Decision Date: 20 December 2004

CaseChat Overview and Summary

In this matter, the appellant, Wilkinson, appealed against his sentence in relation to two counts of aggravated sexual intercourse without consent. The case was heard in the Court of Criminal Appeal. The primary issue before the court was whether the primary judge had properly considered the standard non-parole period in relation to the sentences imposed for the two offences. Additionally, the court had to determine whether the primary judge had properly approached the sentencing process for the Form 1 matters, considering factors such as Wilkinson's plea of guilty, his co-operation with the authorities, his poor health, and the need for protection.

The court examined the sentencing remarks of the primary judge and noted that while the judge had considered the standard non-parole period, there was no specific discussion on the relevance of the standard non-parole period in this case. The court found that the judge had not provided a detailed explanation of why the standard non-parole period was not applicable. Furthermore, the court considered whether the primary judge had adequately weighed the factors relevant to the Form 1 matters, such as Wilkinson's plea of guilty and co-operation with the authorities, as well as his poor health and the need for protection. The court concluded that the primary judge had not sufficiently addressed these factors in the sentencing process.

The Court of Criminal Appeal found that the primary judge had not given adequate consideration to the standard non-parole period and had not properly addressed the relevant Form 1 matters. Consequently, the appeal was allowed, and the matter was remitted to the primary judge for reconsideration of the sentence. The court emphasised the importance of a thorough and reasoned approach to sentencing, particularly in cases involving multiple offences and significant mitigating factors. The final orders of the court are not provided in the text, but it is clear that the sentences will be reviewed and potentially altered in light of the court's findings.

Orders