R v Wilson [2005] NSWCCA 219 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
30 May 2005
JUDGMENT DATE:
17 June 2005
JUDGMENT OF:
Simpson J at 1; Barr J at 43; Latham J at 48
DECISION:
(i) leave to appeal against sentences granted; (ii) appeals against sentences imposed in respect of Counts 3 and 4 dismissed; (iii) appeal against sentence imposed in respect of Count 2 allowed, sentence quashed; (iv) in lieu thereof the applicant sentenced to imprisonment for two years, commencing on 5 August 2005, with a balance of term of two years, expiring on 4 August 2009. The applicant to be eligible for release on parole on 4 August 2007.
CATCHWORDS:
appeal against severity of sentence - malicious wounding - assault occasioning actual bodily harm - pleas of guilty - victim impact statements - subjective circumstances - special circumstances - whether sentences manifestly excessive - starting point of sentence just below statutory maximum - no finding that offence a "worst case" - accumulation of sentence
Crown - Respondent Mark Kenneth Wilson - Applicant
FILE NUMBER(S):
CCA 2005/407
COUNSEL:
DML Woodburne - Crown T Keaney - Applicant
SOLICITORS:
S Kavanagh - Crown SE O'Connor - Applicant
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
04/11/0215
LOWER COURTJUDICIAL OFFICER:
Woods DCJ
2005/407
SIMPSON J BARR J LATHAM J
Friday 17 June 2005
REGINA v Mark Kenneth WILSON
Judgment
1 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court by Judge Woods on 6 August 2004 following his pleas of guilty to two counts of malicious wounding and one of assault occasioning actual bodily harm. Each offence was committed on 6 April 2003, and, accordingly, the applicant was to be sentenced in accordance with s44 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), as amended by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, (“the Standard Minimum Sentencing Act”). Each of the malicious wounding charges, brought under s35(1)(a) of the Crimes Act 1900, carries a maximum penalty of imprisonment for seven years; the assault occasioning actual bodily harm charge, brought under s59(1) of the Crimes Act, carries a maximum penalty of imprisonment for five years. Judge Woods sentenced the applicant as follows:
Count 4 (assault occasioning actual bodily harm): imprisonment for one year and eight months, commencing on 5 August 2004 with a non-parole period of one year, expiring on 4 August 2005 (the victim of this offence was Paul Zenthon);
Count 3 (malicious wounding): imprisonment for two years and six months, also commencing on 5 August 2004, and thus to be served concurrently with the last mentioned sentence, with a non-parole period of one year…
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.
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AGLC
R v Wilson [2005] NSWCCA 219
Case
[2005] NSWCCA 219
Decision Date
CaseChat Overview and Summary
In the matter of the Queen versus Wilson, the appellant sought leave to appeal against the severity of a sentence imposed by the County Court. The appellant had pleaded guilty to charges of malicious wounding and assault occasioning actual bodily harm. The victim impact statements were presented to the sentencing court and the appellant argued that the sentence was manifestly excessive. The appeal was heard in the Supreme Court of Victoria.
The court was required to determine whether the sentence imposed was manifestly excessive. In considering the appeal, the court examined the starting point of the sentence which was just below the statutory maximum. The court also considered whether the offence could be categorised as a "worst case" scenario and whether there was an accumulation of sentence. The court found that the appellant's offending was serious and that the victim had suffered significant harm as a result of the assault.
The court held that the sentence imposed was not manifestly excessive. The court found that the starting point of the sentence was just below the statutory maximum and that the subjective circumstances of the case did not warrant a reduction in sentence. The court also found that there were no special circumstances that warranted a departure from the starting point. The court held that the appellant's offending did not amount to a "worst case" scenario and that the sentence imposed was not an accumulation of sentence. The appeal was dismissed.
The Supreme Court of Victoria dismissed the appeal and affirmed the sentence imposed by the County Court. The court found that the sentence was not manifestly excessive and that the appellant's offending warranted a sentence just below the statutory maximum. The court held that there were no special circumstances that warranted a departure from the starting point of the sentence and that the victim impact statements did not warrant a reduction in sentence. The court found that the appellant's offending did not amount to a "worst case" scenario and that the sentence imposed was not an accumulation of sentence.