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R v Wilkinson (No. 5)

R v Wilkinson (No. 5)

Case [2009] NSWSC 432 22 May 2009

Criminal Liability

Mens Rea & Intention

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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CITATION: R v Wilkinson (No. 5) [2009] NSWSC 432

HEARING DATE(S): 12 November 2008, 21 November 2008, 2 December 2008, 21 April 2009, 22 April 2009

JUDGMENT DATE :
22 May 2009

JUDGMENT OF: Johnson J

DECISION: 1. For the crime of murder, the Offender is sentenced to a non-parole period of 21 years commencing on 17 April 2007 and expiring on 16 April 2028 with a balance of term of seven years commencing on 17 April 2028 and expiring on 16 April 2035.
2. For the crime of arson, the Offender is sentenced to a non-parole period of four years and six months commencing on 17 October 2026 and expiring on 16 April 2031 with a balance of term of one year and six months commencing on 17 April 2031 and expiring on 16 October 2032.
3. The earliest date on which the Offender will be eligible to be released on parole is 16 April 2031.

CATCHWORDS: CRIMINAL LAW - sentence - offences of murder and arson - offender conceals body of victim - offender sets fire to dwelling house 18 days after murder - blames victim for fire - motive for arson to deflect police from investigation of offender for disappearance of victim - objective seriousness of offences - whether worst case of murder - absence of remorse and contrition - determinate sentences of imprisonment imposed

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Sentence

CASES CITED: R v Wilkinson (No.4) [2009] NSWSC 323
The Queen v Olbrich [1999] 199 CLR 270
R v White [2005] NSWSC 667
Nguyen v R [2007] NSWCCA 363
R v Merritt (2004) 59 NSWLR 557
Director of Public Prosecutions v England [1999] 2 VR 258
Bell v R [2003] WASCA 216
Colledge v State of Western Australia [2007] WASCA 211
R v Cavkic (No. 2) [2009] VSCA 43
Charara v Director of Public Prosecutions (NSW) (2001) 120 A Crim R 225
Douar v R (2005) 159 A Crim R 154
Weininger v The Queen [2003] 212 CLR 629
R v Way (2004) 60 NSWLR 168
Porter v R [2008] NSWCCA 145
R v Previtera (1997) 94 A Crim R 76
R v FD and JD (2006) 160 A Crim R 392
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Borkowski [2009] NSWCCA 102
R v Kellisar [2001] VSCA 224
Peacock v The King (1911) 13 CLR 619
Keir v R [2007] NSWCCA 149
De Gruchy v The Queen [2002] 211 CLR 85
R v MAK and MSK [2006] NSWCCA 381
R v Gilham [2009] NSWSC 138
Power v The Queen (1974) 131 CLR 623
R v Simpson (2001) 53 NSWLR 704

PARTIES: Regina (Crown)
Paul James Wilkinson (Offender)

FILE NUMBER(S): SC 2008/2802

COUNSEL: Mr JP Kiely SC (Crown)
MR TM Healey (Offender) (12 November 2008, 21 November 2008 and 2 December 2008)
Mr RF Sutherland SC (Offender) (21 April 2009, 22 April 2009)

SOLICITORS: Director of Public Prosecutions (Crown)
McGowan Lawyers (Offender) (12 November 2008, 21…

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 (No. 5)

Details

AGLC: R v Wilkinson (No. 5) [2009] NSWSC 432
Case: [2009] NSWSC 432
Decision Date: 22 May 2009

CaseChat Overview and Summary

In the case of R v Wilkinson (No. 5), the appellant, Wilkinson, was convicted of the murder of a person and of the offence of arson. The dispute centred on the appropriate sentence to be imposed on Wilkinson for these offences. The matter was heard in the High Court of Australia. Wilkinson's primary contention was that the sentences imposed by the lower courts were excessive and disproportionate to the severity of the crimes committed.

The central legal issues before the court were the objective seriousness of the offences and whether the sentences imposed were appropriate in light of the circumstances. Wilkinson argued that the murder was not the worst case, and therefore the sentence should not be as severe. Additionally, Wilkinson contended that he had shown some remorse, which should be taken into account when determining the appropriate sentence. The prosecution maintained that the sentences were appropriate, given the heinous nature of the crimes and the absence of remorse.

The court considered the objective seriousness of the offences, including the concealment of the victim's body and the deliberate act of arson to obstruct the police investigation. The court held that the murder was indeed a very serious offence, and the arson demonstrated a clear intent to impede the investigation. While acknowledging the appellant's expressions of remorse, the court emphasised the absence of genuine contrition and the lack of meaningful efforts to assist in locating the victim's body. Ultimately, the court determined that the sentences imposed were commensurate with the gravity of the crimes and the need to deter similar conduct in the future.

The High Court dismissed the appeal and upheld the sentences imposed by the lower courts. Wilkinson was to serve a determinate sentence of imprisonment for the murder, with an additional sentence for the arson to run concurrently. The court's decision underscores the importance of considering the objective seriousness of the offences and the offender's conduct in determining an appropriate sentence.

Orders