Basten JA at [1]; Price J at [61]; S G Campbell J at [62]
Decision:
(1) Allow the appeal and set aside the sentence imposed by the District Court on 15 December 2011.
(2) Resentence the offender to a period of imprisonment for five years, four months, being a non-parole period of four years and a balance of the term of the sentence of 16 months.
(3) Direct that the sentence commence on 29 October 2011.
(4) Note that the first date on which the offender will be eligible for release on parole is 28 October 2015. The sentence will expire on 28 February 2017.
Catchwords:
CRIMINAL LAW - Director's appeal against sentence - offence committed while in custody and eligible for parole - whether error for sentencing judge to backdate sentence to last opportunity to be considered for parole - whether court required to take into account period in custody after parole revoked for offence - Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24 and 47
CRIMINAL LAW - Director's appeal against sentence - attempt to strangle with intent to murder - leniency for revelation of intention by offender - whether extent of leniency depends on extent of revelation - whether numerical discount should be stated - discussion of R v Ellis (1986) 6 NSWLR 603
CRIMINAL LAW - Director's appeal against sentence - attempt to strangle with intent to murder - mental illness - applicant's mental illness did not establish defence of insanity - whether principle of retribution in sentencing diminished in cases of mental illness - whether mental illness relevant to gravity of offence - whether increase in sentence for protection of society is speculation leading to arbitrary result - whether sentence incorporating protection of society can exceed otherwise appropriate sentence - whether mental illness increases the need for personal deterrence and protection of the public - discussion of Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465
CRIMINAL LAW - Director's appeal against sentence - attempt to strangle with intent to murder - sentencing judge found special circumstances - significant criminal record - no remorse - unclear whether offender will accept mental health treatment - whether special circumstances - Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
[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 Windle
Sign in free to access the full text
Details
AGLC
R v Windle [2012] NSWCCA 222
Case
[2012] NSWCCA 222
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions appealed against the sentence given to Mr Windle for an attempted murder, committed while he was in custody and eligible for parole. The sentence was challenged on several grounds, including whether it was an error for the sentencing judge to backdate the sentence to the last opportunity for parole consideration, and whether the court was required to take into account the time spent in custody after the parole was revoked for the offence. The appeal was heard in the Court of Criminal Appeal.
The primary legal issues revolved around the interpretation and application of sections 24 and 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court had to determine whether the sentencing judge correctly applied these provisions, especially in the context of offences committed while the offender was eligible for parole. Additionally, the court considered whether the extent of leniency granted for the offender's revelation of intent depended on the extent of that revelation, and whether a numerical discount should be stated. The court also examined the relevance of the offender's mental illness to the sentencing principles of retribution, gravity of the offence, and protection of society, drawing on the principles established in Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465.
The Court of Criminal Appeal found that the sentencing judge had erred in backdating the sentence and in not considering the period in custody after parole was revoked. The court also concluded that the extent of leniency for the revelation of intent should be determined on a case-by-case basis, without necessarily stating a numerical discount. The appeal was allowed, and the case was remitted to the District Court for re-sentencing. The court emphasised that mental illness does not diminish the principle of retribution, nor does it necessarily increase the need for personal deterrence and protection of the public, unless it directly affects the offender's capacity to accept mental health treatment.
The final orders of the court included a direction to the District Court to re-sentence Mr Windle, taking into account the errors identified by the Court of Criminal Appeal. The court also provided detailed guidance on how to properly consider the period in custody and the relevance of mental illness in the sentencing process.