R v Windley - [2023] NSWDC 662

District Court

New South Wales

Medium Neutral Citation: R v Windley [2023] NSWDC 662
Hearing dates: 14 December 2023
Date of orders: 14 December 2023
Decision date: 14 December 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentence of imprisonment of 3 years 2 months with a non-parole period of 1 year 11 months

Catchwords:
CRIME — Violent offences — Robbery — Circumstances of aggravation — Inflict actual bodily harm
SENTENCING — Aggravating factors — Record of previous convictions — Vulnerable victim
SENTENCING — Guidelines for sentencing — Role of guidelines
SENTENCING — Mitigating factors — Plea of guilty — Remorse
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Objective seriousness
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Aboriginal offender — Drug addiction — Acquired brain injury — Trauma in childhood

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Bradley v R (Court of Criminal Appeal (NSW), 26 October 1993, unrep)
Moodie v R [2020] NSWCCA 160
Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Marinos [2003] NSWCCA 136
Sevastopoulosv R [2011] NSWCCA 201
Thach v R [2018] NSWCCA 252

Category: Sentence
Parties: Shane John Windley (the offender)
Public Prosecutions (NSW) (Crown)
Representation: Solicitors:
M Kwan solicitor for Legal Aid (NSW) (for the offender)
J Azad solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2023/80750

JUDGMENT – ex tempore revised

Introduction

Shane Windley, now aged 47, appears for sentence today charged with a particularly serious offence; Aggravated robbery and inflicting actual bodily harm. That offence, charged pursuant to s 91(5)(1) Crimes Act 1900 (NSW), carries a maximum penalty of 20 years imprisonment.
Windley pleaded guilty in the Magistrate’s Court. He admitted his guilt and expressed regret on arrest. He reinforced those sentiments after he was shown the CCTV of the robbery which was played in Court today: Exhibit B. In evidence today he apologised to the victim of his crime and promised that he would, on release, engage in programs, preferably residential programs, find a home and take up a job and NDIS support so that an offence like this would never occur again.
He said he would not have done it if he has not been using drugs. But he and everyone in the community should understand that drug use, even a severe addiction, can never excuse a crime, particularly a crime like this. The fact of his addiction, its consequences, how it came about, what is to be done about it, may however, be taken into account as a factor relevant to the sentencing. It allows me to understand what he did, why he did it, and what plans can be made for the future. It helps explain what was an was impulsive offence.
It is to that offence that I now turn as every sentencing exercise has…

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 Windley

Details

AGLC: R v Windley [2023] NSWDC 662
Case: [2023] NSWDC 662
Decision Date: 14 December 2023

CaseChat Overview and Summary

In the case of R v Windley, the appellant was convicted of robbery involving the infliction of actual bodily harm. The incident involved the appellant assaulting a vulnerable victim, which led to the victim sustaining physical injuries. The appellant subsequently pleaded guilty and the case was heard in the relevant appellate court. The central legal issues revolved around the appropriate sentencing for the crime, taking into account both aggravating and mitigating factors. The court had to determine the appropriate sentence while considering the guidelines for sentencing, the appellant's previous criminal history, the vulnerability of the victim, and other mitigating factors such as the appellant's plea of guilty and expressions of remorse. The court also considered subjective factors, including the appellant's Aboriginal background, drug addiction, acquired brain injury, and childhood trauma.

The court meticulously examined the aggravating factors, such as the nature of the violent offence and the appellant's previous convictions, which indicated a pattern of criminal behaviour. The court also weighed the mitigating factors, including the appellant's early guilty plea and evidence of remorse, which were deemed to reduce the moral culpability. In assessing the objective seriousness of the crime, the court focused on the physical harm inflicted on the vulnerable victim and the circumstances of aggravation. The court emphasised the importance of adhering to sentencing guidelines while also engaging in an instinctive synthesis of all relevant factors. This synthesis allowed the court to craft a sentence that appropriately balanced deterrence, moral culpability, and the specific circumstances of the appellant.

Ultimately, the court determined that a sentence of imprisonment for three years and two months was warranted, with a non-parole period of one year and eleven months. This sentence reflected the gravity of the offence, the appellant's criminal history, and the mitigating factors presented. The court's decision underscored the need for a balanced approach in sentencing that considers both the severity of the crime and the individual circumstances of the offender. This holistic approach ensures that the sentence serves the dual purposes of punishment and rehabilitation, while also addressing the broader societal need for deterrence.

Orders

Orders of the court

Sentence of imprisonment of 3 years 2 months with a non-parole period of 1 year 11 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Windley [2023] NSWDC 662
Hearing dates:	14 December 2023
Date of orders:	14 December 2023
Decision date:	14 December 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentence of imprisonment of 3 years 2 months with a non-parole period of 1 year 11 months
Catchwords:	CRIME — Violent offences — Robbery — Circumstances of aggravation — Inflict actual bodily harm SENTENCING — Aggravating factors — Record of previous convictions — Vulnerable victim SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Aboriginal offender — Drug addiction — Acquired brain injury — Trauma in childhood
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bradley v R (Court of Criminal Appeal (NSW), 26 October 1993, unrep) Moodie v R [2020] NSWCCA 160 Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Marinos [2003] NSWCCA 136 Sevastopoulosv R [2011] NSWCCA 201 Thach v R [2018] NSWCCA 252
Category:	Sentence
Parties:	Shane John Windley (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Solicitors: M Kwan solicitor for Legal Aid (NSW) (for the offender) J Azad solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2023/80750