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R v Willmott

R v Willmott

Case [2012] NSWSC 824 20 July 2012

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Supreme Court

New South Wales

Medium Neutral Citation: R v WILLMOTT [2012] NSWSC 824
Hearing dates: 15 June 2012
Decision date: 20 July 2012
Jurisdiction: Common Law - Criminal
Before: Price J
Decision:
The offender is sentenced to a term of imprisonment with a non-parole period of 21 years which is to commence on 13 October 2010 and is to expire on 12 October 2031 and a balance of term of 7 years which is to commence on 13 October 2031 and will expire on 12 October 2038.
The earliest date the offender is eligible for release to parole is 12 October 2031.

Catchwords: CRIMINAL LAW - sentencing - murder - guilty plea - limited provocation - seriousness of offence of a high order - offender on parole - convictions for personal violence offences - intoxication and illicit drug use - utilitarian discount for plea - parole revoked - when sentence to be commenced.
Legislation Cited: Crimes Act 1900 s 19A, s 19A(2), s 19A(3)
Crimes (Domestic and Personal Violence) Act 2007 s 4
Crimes (Sentencing Procedure) Act 1999
s 21(1), s 21A(2), s 21A(2)(d), s 21A(6),
s 21A(3)(b), s 21A(3)(c) s 21A(3)(i) (i)-(ii),
s 61(1)
Criminal Code Act 1899 (Qld)
Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v AB [2011] NSWCCA 229; (2011) 59 MVR 356
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Fernando [2002] NSWCCA 28
R v Harrison (1997) 93 A Crim R 314
R v Israil [2002] NSWCCA 255
R v Koloamatangi [2011] NSWCCA 288
R v McNaughton [2006] NSWCCA 242; (2006) NSWLR 566
R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557
R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327
R v Previtera (1997) 94 A Crim R 76
R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436
R v SLD [2003] NSWCCA 310; (2003) 58 NSWLR 589
Stanford v R [2007] NSWCCA 73
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Yang v R [2012] NSWCCA 49
Category: Sentence
Parties: Regina (Crown)
Kelvin Robert WILLMOTT (Offender)
Representation: Mr L Lungo (Crown)
Mr J Fitzgerald (Offender)

File Number(s): 2010/340090

REMARKS ON SENTENCE

Kelvin Robert Willmott pleads guilty to the murder of Shane Curphey on 13 October 2010. The maximum sentence for the crime of murder is imprisonment for life. A standard non-parole period has been prescribed of 20 years imprisonment. These two legislative guideposts are to be borne in mind when the Court comes to a consideration of the appropriate penalty, having regard to the objective circumstances of the offence and the subjective features of the offender: Muldrock v The Queen [2011] HCA…

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 Willmott

Details

AGLC: R v Willmott [2012] NSWSC 824
Case: [2012] NSWSC 824
Decision Date: 20 July 2012

CaseChat Overview and Summary

In the case of R v Willmott, the appellant was convicted of murder and appealed against his sentence. The appellant had entered a guilty plea to the reduced charge of murder, as opposed to the original charge of manslaughter, which was accepted by the trial judge. The nature of the dispute in this case centred around the appropriate sentence to be imposed on the appellant, taking into account various mitigating and aggravating factors.

The legal issues before the court involved the assessment of the seriousness of the offence, the impact of the appellant's guilty plea, and the relevance of his prior criminal history. The court was also required to consider the circumstances surrounding the offence, including the limited provocation, the appellant's intoxication and illicit drug use at the time of the offence, and the fact that he was on parole at the time of the incident. Furthermore, the court had to determine whether a utilitarian discount for the plea should be applied and when the sentence should commence, given that the appellant's parole had already been revoked.

The court, in considering the seriousness of the offence, found that the crime was of a high order due to the intentional taking of a life and the premeditated nature of the act. However, the court also acknowledged the mitigating factors, including the limited provocation and the appellant's guilty plea, which resulted in a utilitarian discount being applied. The appellant's prior convictions for personal violence offences and his intoxication and illicit drug use at the time of the offence were considered as aggravating factors. Ultimately, the court determined that the appropriate sentence should reflect both the gravity of the crime and the mitigating factors present in this case. The court also decided that the sentence should commence from the date of the appellant's parole revocation, taking into account the need for general and specific deterrence.

The final orders of the court were that the appellant's sentence of imprisonment for a specified period, with a non-parole period, should be upheld. The court also directed that the sentence should commence from the date of the appellant's parole revocation. The appeal against sentence was dismissed, and the original sentence imposed by the trial judge was affirmed.

Orders