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R v Witchard

R v Witchard

Case [2007] NSWCCA 167 19 June 2007

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New South Wales
Court of Criminal Appeal

CITATION: R v WITCHARD [2007] NSWCCA 167

HEARING DATE(S): 16 April 2007

JUDGMENT DATE:
19 June 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 42; Rothman J at 43

DECISION: 1. Crown appeal allowed; 2. Sentences in relation to counts 1 and 2 quashed; 3. In relation to count 1 the respondent is sentenced to a fixed term of 18 months to date from 31 May 2006; 4. In relation to count 2 the respondent is sentenced to a non-parole period of 2 years commencing on 31 May 2007 and expiring on 30 May 2009 with a further term of 2 years expiring on 30 May 2011; 5. Otherwise the appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - respondent of aboriginal origin - robbery in company - assault with intent to rob - victims waiting at railway station - principles governing Crown appeals - sentencing of multiple offences - whether Fernando principles relevant - whether failure to consider Henry guideline - approach in relation to offences with a standard non-parole period.

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1900

CASES CITED: Dinsdale v The Queen (2000) 202 CLR 321
Everett v The Queen (1994) 181 CLR 295
Pearce v The Queen (1998) 194 CLR 610
R v Baker [2000] NSWCCA 85
R v Fernando [2002] NSWCCA 28
R v Henry (1999) 46 NSWLR 346
R v Jerrard (1991) 56 A Crim R 297
R v Vranic (NSWCCA, 7 May 1991, unreported)
R v Wall [2002] NSWCCA 42
R v Way (2004) 60 NSWLR 168

PARTIES: The Crown (Appl)
Kevin Allan Witchard (Resp)

FILE NUMBER(S): CCA 2007/357

COUNSEL: V Lydiard (Crown/Appl)
C B Craigie SC (Resp)

SOLICITORS: Director of Public Prosecutions (Crown/Appl)
Aboriginal Legal Service (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/1207

LOWER COURT JUDICIAL OFFICER: Viney A/DCJ

LOWER COURT DATE OF DECISION: 14 December 2006

2007/357

McCLELLAN CJ at CL
HIDDEN J
ROTHMAN J
TUESDAY 19 JUNE 2007

R v WITCHARD, Kevin

Judgment

1 McCLELLAN CJ at CL: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912.

2 The respondent Kevin Witchard pleaded guilty to two charges being:

1. Robbery in company contrary s 97(1) of the Crimes Act 1900 for which the maximum penalty is 20 years imprisonment.

Crimes Act

3 The respondent was also sentenced in relation to three matters on a s 166 certificate being common assault (s 61); assault officer in the execution of his duty (s 58) and resist officer in the execution of his duty (s 58).

4 The respondent was arrested on 21 January 2006 and was refused bail. He appeared at the Penrith Local Court on 20 October 2006 when he pleaded guilty to…

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 Witchard

Details

AGLC: R v Witchard [2007] NSWCCA 167
Case: [2007] NSWCCA 167
Decision Date: 19 June 2007

CaseChat Overview and Summary

The case of R v Witchard involved the respondent, who was of Aboriginal origin, being charged with multiple offences including robbery in company and assault with intent to rob. The crimes occurred at a railway station, where the victims were waiting. The Crown appealed the sentence, raising questions about the principles governing such appeals and the sentencing of multiple offences. One of the central issues was whether the principles established in Fernando were relevant and if the sentencing court had failed to consider the guidelines set out in Henry. The court also had to determine the appropriate approach to take when sentencing for offences that carry a standard non-parole period.

The court carefully examined the sentencing principles and guidelines that apply to appeals by the Crown. It considered whether the sentencing court had correctly applied the Fernando principles, which outline the approach to sentencing multiple offences, and whether there had been an oversight in relation to the Henry guideline, which provides specific direction on sentencing. The court found that the sentencing court had not adequately addressed the Henry guideline, which was particularly relevant given the nature of the offences and the standard non-parole period applicable to them. This oversight led the court to conclude that the sentence imposed was manifestly inadequate.

In light of these findings, the court allowed the Crown's appeal and quashed the sentences imposed by the trial judge. The matter was remitted back to the sentencing court for re-sentencing, ensuring that the appropriate principles and guidelines were applied. The court emphasised the importance of adhering to established sentencing principles to achieve just outcomes and to maintain public confidence in the criminal justice system.

Orders