Regina v WM - [2004] NSWCCA 53

CITATION: Regina v WM [2004] NSWCCA 53

HEARING DATE(S): 6 February 2004

JUDGMENT DATE:
12 March 2004

JUDGMENT OF: Grove J at 1; Sully J at 2; Bell J at 87

DECISION: Crown appeal allowed; Sentences passed in District Court quashed; Respondent re-sentenced as per paragrah 85 of judgment

LEGISLATION CITED: Crimes (Sentencing Procedure) Act (NSW)
Crimes Act 1900 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)

CASES CITED: Reg v Thomson and Houlton (2000) 49 NSWLR 383
Reg v NP [2003] NSWCCA 195
Reg v Ellis (1986) 6 NSWLR 603
Reg v Hallacoglu (1992) 63 A Crim R 287 at 299

PARTIES :
Regina
WM

FILE NUMBER(S): CCA 60303/03

COUNSEL: M. Grogan - Crown
M. Gelbert - Respondent

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0133

LOWER COURT
JUDICIAL OFFICER : Blackmore DCJ

60303/03

GROVE J
SULLY J
BELL J
12 March 2004

REGINA v WM

Judgment

1 GROVE J: I agree with Sully J.

2 SULLY J: The Crown appeals against what it asserts to be the manifest inadequacy of sentences passed upon the respondent, WM, on 1 May 2003 by his Honour Judge Blackmore SC in the Sydney District Court.

3 The respondent was presented before Judge Blackmore on 4 April 2003. There was, initially, a deal of confusion as to the number of charges which were to be dealt with by his Honour. In the event, the respondent was formally arraigned before his Honour upon an indictment containing seven counts. The respondent pleaded guilty to each of the seven counts. He asked his Honour to take into account in connection with his sentencing for the offences charged in the indictment, a further eighteen offences the details of which were set out in a document conforming to Form F1 of the Forms prescribed in connection with section 32 of the Crimes (Sentencing Procedure) Act (NSW), (hereinafter “the Sentencing Procedure Act”). The offences charged in the indictment and the offences notified in the Form 1 were respectively charged and notified as having been committed on the following days: 30 September 2000; 19 October 2000; 7 December 2000; 29 December 2000; 11 February 2001; 21 March 2001; and 22 March 2001.

4 It will be necessary to look in due course at the detailed structuring of the sentences that were passed upon the respondent by Judge Blackmore. It is sufficient at this point to note that the effect of that structuring of sentences was to sentence the respondent to an effective term of imprisonment for five years commencing on 1 May 2003 and expiring on 30 April 2008, with an effective non-parole period of 2 years and 6 months commencing on 1 May 2003 and expiring on 31 October 2005.

5 It will be necessary to consider, also, in due course the effect of the respondent’s criminal antecedents. Put very simply, there were two entries in the respondent’s antecedent criminal record. The first concerned a charge of robbery, and…

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 Regina v WM

Details

AGLC: Regina v WM [2004] NSWCCA 53
Case: [2004] NSWCCA 53
Decision Date: 12 March 2004

CaseChat Overview and Summary

In Regina v WM, the Crown appealed against the sentences passed on the respondent, WM, by the District Court. WM had pleaded guilty to multiple counts of serious offences including armed robbery, shooting at police with intent to prevent lawful apprehension, and discharging a firearm in public. The Court of Criminal Appeal found the sentences passed by the District Court to be manifestly inadequate. The primary judge had allowed a 25% discount for WM’s pleas of guilty and cooperation with police, which the appeal court deemed excessive. The appeal court also found that the principle of totality was not properly applied. The sentences were re-imposed by the Court of Criminal Appeal, with the overall effective sentence being imprisonment for 9 years with a non-parole period of 6 years. The court ordered that WM serve his sentences in a juvenile detention centre until he attains the age of 21 years. The appeal court dismissed any argument regarding delay in bringing the appeal, given the manifest inadequacy of the original sentences.

Orders