R v Wilkinson - [1999] NSWCCA 248

CITATION: REGINA v. WILKINSON [1999] NSWCCA 248

FILE NUMBER(S): CCA 60209/98

HEARING DATE(S): Monday 9 August 1999

JUDGMENT DATE:
9 August 1999

PARTIES :

REGINA v.
WILKINSON, Nicole Marie

JUDGMENT OF: Mason P at 25; Abadee J at 2; Simpson J at 29

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70066/97

LOWER COURT JUDICIAL OFFICER: Wood, CJ. at CL.

COUNSEL: Crown: P.G. Berman
App: R. Burgess

SOLICITORS: Crown: C.K. Smith
App: T.A. Murphy

CATCHWORDS:

CASES CITED:
Lowe v. The Queen (1984) 154 CLR 606;
Postiglione v. The Queen (1996-97) 189 CLR 295

DECISION: Leave to appeal refused

- 9 -
IN THE COURT OF
CRIMINAL APPEAL
No. 60209 of 1998 CORAM: MASON, P.
ABADEE, J.
SIMPSON, J.

MONDAY 9 AUGUST 1999

REGINA v. NICOLE MARIE WILKINSON
JUDGMENT

1 MASON, P: I will ask Justice Abadee to give the first reasons. 2 ABADEE, J: The applicant seeks leave to appeal against the severity of a sentence imposed by Wood, CJ. at CL. on 9 April 1998. 3 The applicant (date of birth 16 July 1977) was charged with the offence of manslaughter. After a lengthy trial she was convicted by a jury of that offence. Following two days of sentencing proceedings and the applicant exercising her right not to give evidence (which was a matter for her), Wood, CJ. at CL. sentenced the applicant to six and a half years' penal servitude consisting of a minimum term of three and a half years and an additional term of three years. Her co-accused, one Cory Campbell, initially proceeded to a trial jointly with the applicant. In the course of the trial he was granted a separate trial. Subsequently he pleaded guilty to a charge of manslaughter. 4 On 23 November 1998 Cory Campbell was sentenced by Newman, J. to penal servitude for five years and eight months comprising a minimum term of two years and two months and an additional term of three and a half years. His Honour took into account that Mr. Campbell had served 10 months in custody. Effectively the minimum term for Mr. Campbell was three years. 5 In his sentencing reasons it is to be noted that Newman, J., in accepting Campbell's plea to manslaughter of his son Keiran Wilkinson, had acknowledged that Campbell had pleaded guilty on the basis of his criminal negligence in failing properly to protect Keiran Wilkinson's well-being. This is a similar basis to the basis adopted by Wood, CJ. at CL. in the instant proceedings when sentencing the applicant, Miss Wilkinson. 6 The only issue raised in Miss Wilkinson's application for leave to appeal against sentence concerns the parity of the applicant's sentence when compared with that of the co-offender Campbell. No error of fact or law is suggested in the careful reasons for sentence and findings made by Wood, CJ. at CL. As I have said, the case against the applicant was criminal negligence in failing to properly protect the well-being of her six-months-old son Keiran as…

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 [1999] NSWCCA 248
Case: [1999] NSWCCA 248
Decision Date: 9 August 1999

CaseChat Overview and Summary

In Regina v. Wilkinson, the applicant, Nicole Marie Wilkinson, sought leave to appeal against the severity of her sentence imposed by Wood, CJ. at CL. The applicant was convicted of manslaughter following the death of her six-month-old son, Keiran Wilkinson. The primary legal issue was whether the parity principle had been infringed in the sentencing of Wilkinson, given the different sentence handed down to her co-offender, Cory Campbell, who had also been convicted of manslaughter. Wilkinson argued that the principle of parity had not been adhered to because she received a harsher sentence despite having less objective culpability than Campbell.

The Court of Criminal Appeal considered the principle of parity, which requires sentences to be proportionate to the offenders' degrees of criminality and their circumstances, as established in cases such as Lowe v. The Queen and Postiglione v. The Queen. The Court acknowledged that Campbell's plea of guilty and his display of remorse were significant factors that led to a lesser sentence. It also considered that Wilkinson's decision not to seek medical help for her son and her use of cannabis on the day of his death showed a higher degree of culpability. The Court concluded that the different sentences were proportionate, taking into account the unique circumstances of each case, and did not infringe the principle of parity. Accordingly, the Court refused Wilkinson's application for leave to appeal.

The Court's decision highlights the importance of considering individual circumstances and the specific nature of the offence when applying the principle of parity in sentencing. The varying degrees of culpability and the differing impacts of the offenders' actions on the victims were critical in determining the appropriate sentences in this case.

Orders