District Court
New South Wales
- Amendment notes
Medium Neutral Citation: Wade v R [2011] NSWDC 206 Hearing dates: 15 April 2011 Decision date: 15 April 2011 Before: Neilson DCJ Decision: Appeal allowed
Set aside sentences passed by the Local Court at Campbelltown on 24 February 2011
Catchwords: CRIMINAL LAW - Sentencing - Extra Curial Punishment - Whether loss of job and career as senior prison officer should be taken into account as a mitigating factor - Sentences imposed by Local Court reduced Cases Cited: Lancaster and Touhy (1991) 58 A Crim R 209
R v Richards (1982) 2 Cr App Reps 119
R v Stanley and Spindler (1998) 3 Cr App Reps 373Texts Cited: Ivan Potas, Sentencing Manual (2001) Judicial Commission of New South Wales at 305 Category: Principal judgment Parties: Regina
Sebastian WadeRepresentation: Mr R F Stainer (Crown)
Mr Russell (Appellant)
File Number(s): 2010/26883; 2010/377592
Judgment
HIS HONOUR: This is an appeal against the severity of sentences passed by Magistrate Degnan sitting in the Local Court at Campbelltown on 24 February 2011. His Honour delivered written remarks on sentence which are the best I have seen from any magistrate in the five years that I have been sitting in crime. To outline the background of the appeal, it is necessary for me to cite some of what his Honour said. Commencing at [3] his Honour said this:
"3. The offender was employed as a Corrections Officer since 2002. In 2009, he was based at the John Moroney Correctional Centre ...
4. On 20 November 2009, the offender met Sara Davis at the Shell Service Station in Berkshire Park, where he received cannabis leaf to smuggle to inmate, Benjamin Maule in the John Moroney Correctional Centre. The offender also received $300 cash from Davis for the performance of the illegal service ...
5. On 25 November 2009 the offender met Adriana Obierzynski at the same Shell Service Station, where he received a Polo brand top and a CD of downloaded songs to smuggle to her brother, inmate, Zachary Obierzynski in the John Moroney Correctional Centre. The offender also received $300 cash from Adriana Obierzynski for the performance of the illegal service ...
6. On 25 January 2010, the offender met Michael Holland at Holland's residence, where he received some cannabis leaf, vodka in a water bottle and some tablets to smuggle to inmate Jared Tidsley in the John Moroney Correctional Centre. The offender also received $300 cash from Holland for the performance of the illegal service ... Later the same day, the offender was arrested as he was about to enter the John Moroney Correctional Centre. When searched he was found to be in possession of the cannabis leaf, the vodka and a few tablets. Police also recovered $510 from the offender's vehicle. When later interviewed by police, the offender conceded the meeting with Holland, but claimed he was smuggling the cannabis leaf under duress and that rather than smuggle it into the prison, he was going to…
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Details
- AGLC
- Wade v The Queen [2011] NSWDC 206
- Case
- [2011] NSWDC 206
- Decision Date
CaseChat Overview and Summary
In the case of Wade v The Queen, the appellant faced sentencing after being found guilty of various criminal charges. The Local Court at Campbelltown had imposed sentences which the appellant contested, arguing that certain mitigating factors, including the loss of his job and career as a senior prison officer, should have been considered. The appellant appealed to a higher court, seeking a reduction in the severity of the sentences imposed.
The primary legal issue before the court was whether the loss of employment and career prospects, which arose as a direct consequence of the appellant's criminal conduct, should be taken into account as a mitigating factor in determining the appropriate sentence. The court was required to balance the gravity of the offences with the appellant's personal circumstances, including the collateral consequences of his criminal behaviour.
In its reasoning, the court found that the appellant's loss of employment and career prospects were indeed significant mitigating factors. The court recognised that these consequences were not merely a result of the appellant's criminal conduct but also served as a form of punishment in and of itself. Given this, the court determined that the Local Court had not appropriately considered these factors, leading to an excessive sentence. As a result, the appeal was allowed, and the sentences previously imposed were set aside.
The final orders of the court were to allow the appeal and set aside the sentences passed by the Local Court at Campbelltown on 24 February 2011. The case was remitted back to the Local Court for reconsideration of the sentence, taking into account the appropriate mitigating factors identified by the higher court.
The primary legal issue before the court was whether the loss of employment and career prospects, which arose as a direct consequence of the appellant's criminal conduct, should be taken into account as a mitigating factor in determining the appropriate sentence. The court was required to balance the gravity of the offences with the appellant's personal circumstances, including the collateral consequences of his criminal behaviour.
In its reasoning, the court found that the appellant's loss of employment and career prospects were indeed significant mitigating factors. The court recognised that these consequences were not merely a result of the appellant's criminal conduct but also served as a form of punishment in and of itself. Given this, the court determined that the Local Court had not appropriately considered these factors, leading to an excessive sentence. As a result, the appeal was allowed, and the sentences previously imposed were set aside.
The final orders of the court were to allow the appeal and set aside the sentences passed by the Local Court at Campbelltown on 24 February 2011. The case was remitted back to the Local Court for reconsideration of the sentence, taking into account the appropriate mitigating factors identified by the higher court.
Orders
Orders of the court
Appeal allowed
Set aside sentences passed by the Local Court at Campbelltown on 24 February 2011
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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