R v Wilson-Winship - [2007] NSWCCA 163

Reported Decision: 172 A Crim R 505

New South Wales

Court of Criminal Appeal

CITATION: R v Wilson-Winship [2007] NSWCCA 163

HEARING DATE(S): 24/04/07

JUDGMENT DATE:
27 July 2007

JUDGMENT OF: James J at 1; Rothman J at 2; Harrison J at 67

DECISION:
1. Appeal by the Crown against the sentence imposed by his Honour Judge Williams on 15 December 2006 be granted.

2. The sentence imposed by his Honour Judge Williams on Justin Wilson-Winship for robbery armed with an offensive weapon committed on 29 September 2005 be quashed.
3. The aforesaid Justin Wilson-Winship, for that offence, be sentenced to a non-parole period of 3 years’ imprisonment commencing on 26 February 2006 and expiring on 25 February 2009 and a remainder of sentence of 3 years to expire on 25 February 2012.

CATCHWORDS: CRIMINAL LAW – APPEAL – Crown Appeal – armed robbery of bank – non-applicability of R v Henry guideline – double counting of discount on plea of guilty – manifest inadequacy.

LEGISLATION CITED: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)

CASES CITED: Dinsdale v The Queen (2000) 202 CLR 321
R v AA [2006] NSWCCA 55.
R v Abboud [2005] NSWCCA 251
R v Henry (1999) 46 NSWLR 346
R v O’Donoghue (1988) 34 A Crim R 397
R v Prasad (2004) 147 A Crim R 385
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Wall [2002] NSWCCA 42
Veen v R (No. 2) (1988) 164 CLR 465

PARTIES: Regina (Applicant)
Justin Wilson-Winship (Respondent)

FILE NUMBER(S): CCA 2007/321

COUNSEL: J. Dwyer (Crown)
C. Craigie SC (Respondent)

SOLICITORS: S. Kavavnagh (DPP)
S.E. O'Connor (LAC)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0875

LOWER COURT JUDICIAL OFFICER: Williams DCJ

LOWER COURT DATE OF DECISION: 15/12/06

2007/321

JAMES J
ROTHMAN J
HARRISON J
27 JULY 2007

REGINA v Justin WILSON-WINSHIP

Judgment

1 JAMES J: I agree with Rothman J.

2 ROTHMAN J: The Crown appeals against the sentence imposed on the respondent, Justin Wilson-Winship, by his Honour Judge Williams on 15 December 2006.

3 The respondent was sentenced to imprisonment for a non-parole period of two years and three months to commence on 26 February 2006 and expire on 25 May 2008 with the remainder of sentence of one year and six months to expire on 25 November 2009.

4 At the time that the respondent was sentenced in this matter, he was already serving a prison sentence for earlier offences. Hence his sentence dated from 26 February 2006.

5 The sentencing judge, Williams DCJ, sentenced the respondent after a plea of guilty to the offence of robbery armed with an offensive weapon, contrary to section 97(1) of the Crimes Act 1900 (NSW). The maximum imprisonment for such an offence is 20 years’ imprisonment. The date of offence was 29 September 2005.

6 Before reciting the facts and issues raised by the Crown in their appeal, it is important to recite the principles that inform the exercise…

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 Wilson-Winship

Details

AGLC: R v Wilson-Winship [2007] NSWCCA 163
Case: [2007] NSWCCA 163
Decision Date: 27 July 2007

CaseChat Overview and Summary

The appeal arose from a conviction for armed robbery of a bank, with the respondent, Wilson-Winship, initially sentenced to a term of imprisonment. The Crown appealed the sentence on the basis of its manifest inadequacy. Wilson-Winship cross-appealed, arguing that the trial judge had erred in not applying the guideline set out in R v Henry and in double-counting the discount on his plea of guilty.

The court was required to determine whether the trial judge's failure to apply the guideline in R v Henry was an error, and whether the judge had indeed double-counted the discount on the plea of guilty. Additionally, the court had to assess whether the sentence was manifestly inadequate.

The court found that the trial judge's failure to apply the guideline in R v Henry was not an error, as the guideline was not applicable to the facts of this case. Regarding the discount for the plea of guilty, the court held that the judge had not double-counted but had correctly applied the discount in accordance with the sentencing principles. However, the court concluded that the sentence was manifestly inadequate, taking into account the seriousness of the offence and the need for general deterrence. The appeal was therefore allowed, and the case was remitted to the sentencing judge for re-sentencing.

The final orders of the court were that the appeal be allowed, the conviction be upheld, and the matter be remitted to the sentencing judge for re-sentencing. The cross-appeal was dismissed.

Orders