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R v Willard

R v Willard

Case [2001] NSWCCA 6 2 February 2001

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Reported Decision:
120 A Crim R 450

New South Wales

Court of Criminal Appeal

CITATION: Regina v Willard [2001] NSWCCA 6

FILE NUMBER(S): CCA 60005/2000

HEARING DATE(S): 8 December 2000
2 February 2001

JUDGMENT DATE:
2 February 2001

PARTIES :

Crown - Respondent
Michelle WILLARD - Applicant

JUDGMENT OF: Simpson J at 1; Dowd J at 51

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0296

LOWER COURT JUDICIAL
OFFICER : P R Bell DCJ

COUNSEL : L M B Lamprati - Crown
P J D Hamill - Applicant

SOLICITORS: S E O'Connor - Crown
Mark Morris - Applicant

LEGISLATION CITED: Criminal Procedure Act 1986
Sentencing Act 1989

CASES CITED:
R v Scullion, unreported NSWCCA 15 July 1992
R v Munday (1981) 2 NSWLR 177
R v Cartwright (1989) 17 NSWLR 243
R v Gallagher, unreported NSWCCA 27 August 1991
R v Thomson and Houlton [2000] NSWCCA 309
R v Edwards (1996) 90 ACrimR 510
R v Worth (1976) 14 SASR 291
R v Boyle (1987) 34 ACrimR 202
R v T (1990) 47 ACrimR 29
R v Adami (1989) 51 SASR 229
R v Spruce unreported NSWCCA 18 October 1990
R v Toomalati [2000] NSWCCA 105, 22 March 2000
R v Tiki unreported NSWCCA 24 August 1994
R v Day (1998) 100 ACrimR 275
R v Wright (1997) ACrimR 48, 28 February 1987)
R v Letteri unreported NSWCCA 18 March 1992]
R v Engert (1985) 85ACrimR 67
Dinsdale v The Queen [2000] HCA 54

DECISION: Leave to appeal granted, appeal dismissed. Formal orders dismissing the appeal deferred.

IN THE COURT OF
CRIMINAL APPEAL

60005/00

SIMPSON J
DOWD J

Friday 2 February 2001

REGINA v Michelle WILLARD

Judgment

1 The applicant seeks leave to appeal against a sentence imposed upon her on 15 December 1999 by Judge PR Bell in the District Court at East Maitland following her pleas of guilty to two charges of attempting to obtain money by deception. The applicant asked that an additional offence of attempting to obtain financial advantage by deception be taken into account pursuant to s 21 of the Criminal Procedure Act 1986.

2 Pursuant to ss 178BA and 344A of the Crimes Act 1900, the applicant was exposed to a maximum penalty of imprisonment for five years in relation to each of the charges to which she pleaded guilty. Taking into account the matter on the Form 2, Judge Bell sentenced the applicant to two concurrent terms of twelve months imprisonment, divided into minimum terms of four months and additional terms of eight months. In doing so he found that there were special circumstances within the meaning of s 5(2) of the Sentencing Act 1989 warranting departure from the conventional division of the sentences. The special circumstances concerned psychiatric and psychological evidence as to the applicant's mental and emotional state, to which it will be necessary to refer in due course.

3 All three offences were committed over a short period in August 1998. The applicant…

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 Willard

Details

AGLC: R v Willard [2001] NSWCCA 6
Case: [2001] NSWCCA 6
Decision Date: 2 February 2001

CaseChat Overview and Summary

The applicant, Michelle Willard, sought leave to appeal against her sentence following convictions for attempting to obtain money by deception and an additional charge taken into account under the Criminal Procedure Act 1986. Willard had deceived insurance companies into believing her husband was deceased so she could claim on his life insurance policies. She also attempted to deceive a car salesman into selling her a car by falsely claiming she would receive money from the sale of her husband's shares. Willard was sentenced to two concurrent terms of imprisonment, with a minimum term of four months and an additional term of eight months. Willard's application for leave to appeal was based on several grounds, including that the sentence did not adequately recognise her plea of guilty, the impact of her imprisonment on her children, and the weight given to psychological evidence. The Court considered whether there was any error in the sentencing process that would warrant the Court intervening and re-sentencing Willard. The Court found that the sentence imposed was appropriate and no error had been demonstrated. The Court did not consider Willard's post-sentencing cooperation with authorities as it occurred after the sentence was imposed and could not be used to establish error in the sentencing process. The Court granted leave to appeal but dismissed the appeal. Formal orders dismissing the appeal were deferred.

Orders