Waddington v The Queen - [2003] TASSC 21

[2003] TASSC 21

CITATION: Waddington v R [2003] TASSC 21

PARTIES:  WADDINGTON, Desmond John
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 69/2002
DELIVERED ON:  30 April 2003
DELIVERED AT:  Hobart
HEARING DATE/S:  12 March 2003
JUDGMENT OF:  Cox CJ, Underwood and Crawford JJ

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by convicted persons - Applications to reduce sentence - When refused - Particular offences - Offences against the person - Generally - Murder - Whether manifestly excessive imprisonment and non-parole period.
Pavlic v R (1995) 5 Tas R 186; House v R (1936) 55 CLR 499, applied.
Aust Dig Criminal Law [1015]
Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Non-parole period or minimum term - Tasmania - Murder - Whether non-parole period manifestly excessive.
Gill v R 34/1990; Adams v R [1998] TASSC 41; Bugmy v R (1990) 169 CLR 525, referred to.
Aust Dig Criminal Law [880.5]

REPRESENTATION:

Counsel:
           Appellant:  J W Avery and M Ryan
           Respondent:  T J Ellis SC
Solicitors:
           Appellant:  Avery Partners
           Respondent:  Director of Public Prosecutions

Judgment ID Number: [2003] TASSC 21
Number of paragraphs: 31

Serial No 21/2003
File No CCA 69/2002

DESMOND JOHN WADDINGTON v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  COX CJ
  UNDERWOOD J
  CRAWFORD J
  30 April 2003

Orders of the Court:

Order that the appellant not be eligible for parole for a period of 12 years from 15 September 2001, quashed.

Appellant not to be eligible for parole for a period of 10 years from 15 September 2001.

Serial No 21/2003
File No CCA 69/2002

DESMOND JOHN WADDINGTON v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ

30 April 2003

For the reasons prepared by Crawford J, I agree with the orders he proposes.
File No CCA 69/2002

DESMOND JOHN WADDINGTON v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J

30 April 2003

I agree with the reasons for judgment of Crawford J and the order that he proposes should be made.
File No CCA 69/2002

DESMOND JOHN WADDINGTON v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J

30 April 2003

The appellant pleaded guilty to one count of murder. On 2 August 2002, he was convicted and sentenced to imprisonment for 17 years, commencing on 15 September 2001, being the date on which his custody commenced. It was ordered that he not be eligible for parole for a period of 12 years from that date. He has appealed on two grounds, that the sentence of 17 years' imprisonment was manifestly excessive and that the order fixing a non-parole period of 12 years was also manifestly excessive.

The factual basis for the sentence was as follows. The crime was committed on 15 September 2001. The appellant was born on 16 August 1955, and the victim,…

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 Waddington v The Queen

Details

AGLC: Waddington v The Queen [2003] TASSC 21
Case: [2003] TASSC 21
Decision Date: 30 April 2003

CaseChat Overview and Summary

Desmond John Waddington has appealed against his conviction and sentence for the murder of Diane Ellen Mudge. The court was required to determine whether the sentence of imprisonment for 17 years and the non-parole period of 12 years were manifestly excessive. The appellant argued that the sentence and non-parole period were excessively harsh, while the respondent maintained that they were appropriate. The court considered the nature of the crime, the appellant's background, and the mitigating and aggravating factors in the case. The court found that the sentence of 17 years' imprisonment was not manifestly excessive, but the non-parole period of 12 years was unduly harsh. The court decided to substitute the non-parole period with a more appropriate one of 10 years, while maintaining the sentence of 17 years' imprisonment.

The Court of Criminal Appeal quashed the order fixing a non-parole period of 12 years and ordered that the appellant not be eligible for parole for a period of 10 years from 15 September 2001. The Court allowed the appeal to a limited extent and upheld the sentence of 17 years' imprisonment. The Court of Criminal Appeal found that the appellant's remorse, confession, and guilty plea were mitigating factors, but the prolonged nature of the crime and the appellant's prior convictions were aggravating factors. The court considered the appellant's background, which included a difficult upbringing, alcohol abuse, and gambling addiction, but also noted that the appellant had made efforts to change his life and had shown remorse for his actions. The court also considered the impact of the crime on the victim's family and the need for general deterrence. The court concluded that the sentence of 17 years' imprisonment was not manifestly excessive, but the non-parole period of 12 years was unduly harsh. The court substituted the non-parole period with a more appropriate one of 10 years, while maintaining the sentence of 17 years' imprisonment.

Orders