R v Wilson No. Sccrm-02-254 - [2003] SASC 18

R v WILSON
[2003] SASC 18
Court of Criminal Appeal: Duggan, Debelle and Gray JJ

DUGGAN J I agree that the appeal should be allowed for the reasons given by Gray J and that the non-parole period should be adjusted to the level he has suggested.
The non-parole period imposed by the learned sentencing judge would have been appropriate if the appellant had not been suffering from terminal cancer. However, the appellant’s illness puts the case into an exceptional category and justifies a lower non-parole period than would otherwise be the case.
DEBELLE J The facts are recited in the reasons of Gray J.
While the sentence was very severe, I do not think that it was manifestly excessive. In this respect, I agree with the substance of the reasons of Gray J. Furthermore, after the appeal had been argued, I was prepared to join in an order that the non-parole period be reduced to four years. At that stage, I was prepared to agree with the substance of the reasons of Gray J.
However, after the appeal was argued, the Court received by consent several affidavits. They disclosed that, notwithstanding his treatment, the appellant’s health has deteriorated markedly. Though the affidavits deal with events which have occurred after the appellant had been sentenced, they explain the full extent and implications of the appellant’s health at the time he was sentenced. They are therefore admissible: R v Smith (1987) 44 SASR 587 at 588. For the reasons which follow, the evidence in these affidavits causes me to believe that the non-parole period should be reduced to three years.
The affidavits disclose that the progress of the myeloma continues to the extent that there is now a substantially reduced expectation of life. There is a significant risk of the appellant suffering a stroke. His outlook beyond six months is poor. In addition, the appellant suffers severe pain in the spine, ribs and right leg although this is adequately controlled with slow release morphine. His severe anaemia causes tiredness. He has a lack of energy and shortness of breath.
The appellant had been in custody for about a period of five months before he was sentenced. The sentencing judge had regard that period when fixing the sentence which began on 8 July 2002. The appellant has, therefore, already served a period of almost 14 months imprisonment. Given the seriousness of the appellant’s health, his deteriorating condition and his very short expectation of life, there is a question whether a period of 14 months should be a sufficient non-parole period.
This is a sad and distressing case. There is an obvious tension between the necessity to order proper punishment and compassion for the appellant suffering from a terminal illness. A court will be reluctant to impose a sentence which is crushing. However, it is well established that, as a general rule, offenders cannot expect to escape punishment because of ill health: R v Smith at 559; Barling (1995) 79 A Crim R 131…

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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Details

Case: [2003] SASC 18
Decision Date: 26 February 2003

CaseChat Overview and Summary

In the case of R v Wilson, the appellant, Anthony Trent Wilson, appealed against the sentence imposed on him by the primary judge. The appellant was convicted of endangering life, unlawfully inflicting grievous bodily harm, and damaging property. The court was tasked with determining whether there had been an error in the sentencing process. Specifically, the court had to consider whether the primary judge had exercised the sentencing discretion properly, taking into account the relevant principles and factors.

The legal issues before the court involved the principles governing appellate review of sentences. The court had to determine whether the primary judge had erred in exercising the sentencing discretion, whether the sentence was unreasonable or plainly unjust, and whether the primary judge had failed to properly consider relevant factors. The High Court's decision in Dinsdale v R provided guidance on the approach to be taken by appellate courts when reviewing sentences, emphasizing the importance of ensuring that the primary judge had exercised the discretion correctly and had not overlooked any material considerations.

The court found that the primary judge had exercised the sentencing discretion correctly, taking into account the relevant factors and principles. The court considered the appellant's personal circumstances, his terminal illness, and the effect of his imprisonment on his partner and young children. The court concluded that a short non-parole period was appropriate, given these factors. The court also determined that both the head sentence and the non-parole period should commence from the date on which the appellant was taken into custody.

The court ordered that the non-parole period be fixed at four years, considering the appellant's personal circumstances, his terminal illness, and the impact of his imprisonment on his family. The court's decision was based on the principles of sentencing and the need to ensure that the primary judge had exercised the discretion properly, taking into account all relevant factors. The court's order reflects the balance between the need for punishment and the need to consider the appellant's personal circumstances and the impact of his imprisonment on his family.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DUGGAN J DEBELLE J GRAY J

Justice in this case is best effected by fixing a short non parole period. Having regard to his personal circumstances, his terminal illness and the effect of his imprisonment on his partner and young children it is appropriate to fix a non parole period of four years. Both the head sentence and non parole period should commence from 8 July 2002, the date on which the appellant was taken into custody. LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT1 “Statement of OffenceEndangering Life. (Section 29 (1) of the Criminal Law Consolidation Act, 1935).Particulars of Offence Anthony Trent Wilson on the 3rd day of July 2001 at Blackwood, did an act, namely threw a Molotov cocktail at [MW], knowing that the act was likely to endanger the life of [MW], intending to endanger her life or being recklessly indifferent thereto.Statement of Offence Unlawfully Inflict Grievous Bodily Harm. (Section 23 of the Criminal Law Consolidation Act, 1935). Particulars of Offence Anthony Trent Wilson on the 3rd day of July 2001 at Blackwood, unlawfully and maliciously inflicted grievous bodily harm to [MW].Statement of Offence Damaging Property. (Section 85(3) of the Criminal Law Consolidation Act, 1935).Particulars of Offence Anthony Trent Wilson on the 3rd day of July 2001 at Blackwood, knowing that he had no lawful authority to do so, intentionally or with reckless indifference damaged carpet in the Belair Hotel, the property of [RN], the said damage amounting to about $10,000.Statement of Offence Damaging property. (Section 85(3) of the Criminal Law Consolidation Act, 1935).Particulars of Offence Anthony Trent Wilson on the 3rd day of July 2001 at Blackwood, knowing that he had no lawful authority to do so, intentionally or with reckless indifference damaged an arcade machine and a pinball machine, the property of [WB], the said damage amounting to about $2,200.”2 The approach of an appellate court when reviewing sentences has been the subject of comment by the High Court in Dinsdale v R (2000) 202 CLR 321 at 324.Gleeson CJ and Hayne J said :“The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v R:‘It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’Those principles [referring to House v R] apply both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness.”Gaudron and Gummow JJ at 329 were of a similar opinion: “In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been‘upon the facts ... unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.’”3 Attorney-General v Tichy (1982) 30 SASR 84; R v Elliot (2001) 121 A Crim R 254; R v Jason - [2002] SASC 2014 (1988) 34 A Crim R 1545 (1986-1987) 44 SASR 587 at 589

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J, DEBELLE J, GRAY J

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