W N B v Regina - [2006] NSWCCA 269

CITATION: W N B v Regina [2006] NSWCCA 269

HEARING DATE(S): 24/08/06

JUDGMENT DATE:
5 September 2006

JUDGMENT OF: Basten JA; Whealy J; Howie J

EX TEMPORE JUDGMENT DATE: 08/24/2006

DECISION: The following orders were made on 24 August 2006. (1) Leave granted to appeal against sentence imposed; (2) Appeal allowed and sentence imposed by Coolahan DCJ quashed ; (3) In place thereof (a) Applicant sentenced to a non-parole period of six months to commence on 27 October 2005 and to expire on 26 April 2006; and (b) the balance of the term be for six months to expire on 26 October 2006. (4) Applicant deemed to have been released to parole on 26 April 2006.

LEGISLATION CITED: Crimes Act 1900

PARTIES: W N B v Regina

FILE NUMBER(S): CCA 2006/1766

COUNSEL: Ms G. Bashir - Applicant
Ms J. Dwyer - Crown/Respondent

SOLICITORS: S. Etherington - Applicant
S. Kavanagh - Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/0043

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

LOWER COURT DATE OF DECISION: 12/04/06

2006/1766

BASTEN JA
WHEALY J
HOWIE J
5 SEPTEMBER 2006

W N B v REGINA

REASONS FOR Judgment

1 THE COURT: On 24 August 2006 the Court heard and dealt with an application for leave to appeal against sentence brought by W N B (“the applicant”). The Court gave leave to appeal, allowed the appeal and quashed the sentence imposed by the sentencing Judge. In place of those orders, the Court sentenced the applicant to a non-parole period of six months to commence on 27 October 2005 and to expire on 26 April 2006. The Court ordered that the balance of the term be for six months to expire on 26 October 2006. The applicant was deemed to have been released to parole on 26 April 2006.

2 These are the reasons for the decision of the Court. The applicant is identified by initials because of the need to prevent disclosure of the identity of the child the subject of the offence.

3 On 3 January 2004 parental responsibility for a young child BC had been given to the Minister for Community Services by the Children’s Court at Wyong. The applicant was the natural father of the child. So far as can be gleaned from the facts which were placed before the sentencing Court and before us, the placement into care had nothing to do with the behaviour of the applicant, although he was in custody at the time the placement order was made. The Minister subsequently placed the child into the care of foster carers.

4 While these arrangements were in place, members of the family of the applicant made arrangements through the Department of Community Services to access the child. The access date arranged was 12 June 2005. On the morning of that day, the child and her carer were met by a large number of the applicant’s family at a public park adjacent to the Morisset Railway Station. Shortly after the gathering commenced,…

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 W N B v Regina

Details

AGLC: W N B v Regina [2006] NSWCCA 269
Case: [2006] NSWCCA 269
Decision Date: 24/08/2006

CaseChat Overview and Summary

In this appeal, the applicant, W N B, sought to challenge the sentence imposed by the sentencing Judge in the District Court. The central issue before the Court of Criminal Appeal was whether the sentence imposed revealed a patent error or was manifestly excessive, given the specific circumstances of the case. The applicant had taken his daughter from lawful care, contrary to the provisions of the Crimes Act 1900. He subsequently took her to Queensland, where they lived with the child's mother and other children. The applicant argued that the sentencing Judge had made an unwarranted finding of fact that he had admitted to planning the abduction, which was not supported by the evidence. Additionally, the Court noted that the sentencing Judge appeared to have considered the period the child spent in Queensland as an aggravating factor, despite it not being part of the offence charged.

The Court of Criminal Appeal found merit in the applicant's argument that the sentence imposed revealed a patent error, as the sentencing Judge had relied on an incorrect finding of fact. Furthermore, the Court concluded that the sentence was excessive, given the limited nature of the offence and the lack of harm to the child. The Court determined that a custodial sentence was necessary to uphold the integrity of the child care system and to deter future offences. However, considering the special circumstances of the case, including the applicant's efforts to address his issues with drugs and alcohol, and his commitment to his other children, a non-parole period of six months was deemed appropriate, along with parole release on 26 April 2006.

Orders