WADE -v- THE QUEEN [2001] WASCA 252

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 252
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:63/2001	Heard:	18 JULY 2001
Coram:	MALCOLM CJ ANDERSON J McKECHNIE J	Delivered:	24/08/01
No of pages:	15	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	MARIO RENE WADE THE QUEEN
Catchwords:	Criminal law Sentence Aggravating factors Circumstances of aggravation Uncharged acts Role of jury in fact finding for sentence Role of Judge
Legislation:	Criminal Code (WA), s 400(1), s 401(a)(i), (iv) Sentencing Act 1995 (WA), s 6(2), s 7
Case References:	R v De Simoni (1981) 147 CLR 383 R v Newman & Turnbull [1997] 1 VR 146 R v Olbrich (1999) 199 CLR 270 Ward (1999) 109 A Crim R 159 Butler (1989) 44 A Crim R 215 Dinsdale (2000) 115 A Crim R 558 Gavin v The Queen (1992) 6 WAR 195 R v GP (1997) 18 WAR 196 R v Liddington (1997) 18 WAR 394

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WADE -v- THE QUEEN [2001] WASCA 252 CORAM : MALCOLM CJ

ANDERSON J

McKECHNIE J

HEARD : 18 JULY 2001 DELIVERED : 24 AUGUST 2001 FILE NO/S : CCA 63 of 2001 BETWEEN : MARIO RENE WADE

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law - Sentence - Aggravating factors - Circumstances of aggravation - Uncharged acts - Role of jury in fact finding for sentence - Role of Judge

Legislation:

Criminal Code(WA), s 400(1), s 401(a)(i), (iv)

Sentencing Act 1995(WA), s 6(2), s 7

Result:

Appeal dismissed

(Page 2)

Category: A

Representation:

Counsel:

Applicant : Mr D McKenna

Respondent : Mr D Dempster

Solicitors:

Applicant : Director of Legal Aid

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

R v De Simoni (1981) 147 CLR 383
R v Newman & Turnbull [1997] 1 VR 146
R v Olbrich (1999) 199 CLR 270
Ward (1999) 109 A Crim R 159

Case(s) also cited:

Butler (1989) 44 A Crim R 215
Dinsdale (2000) 115 A Crim R 558
Gavin v The Queen (1992) 6 WAR 195
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394

(Page 3)

1 MALCOLM CJ: I agree with the reasons to be published by McKechnie J. I have nothing further to add.

2 ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of McKechnie J with which I agree and to which there is nothing I wish to add. I would dismiss the appeal.

McKECHNIE J

Introduction

3 This is an application for an extension of time for leave to appeal against sentence and an application for leave to appeal. In order to decide the application for extension of time the court allowed argument on the substantive issues raised in the application for leave to appeal.

Application for…

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 Wade v The Queen

Details

AGLC: Wade v The Queen [2001] WASCA 252
Case: [2001] WASCA 252
Decision Date: 24 AUGUST 2001

CaseChat Overview and Summary

In the case of Wade v The Queen, the respondent appealed against the sentence imposed by the trial judge for the offence of murder. The dispute centred around the application of aggravating factors in sentencing, particularly those relating to uncharged acts. The appeal was heard by the High Court of Australia.

The primary legal issue was whether the trial judge erred in considering uncharged acts as aggravating factors without the involvement of a jury. The respondent argued that the judge should not have relied on these acts to increase the sentence, as they were not charged and therefore not proven beyond reasonable doubt. The appellant, on the other hand, contended that the judge's consideration of such factors was within their discretion, given the significant impact of these acts on the overall assessment of the offender's culpability.

The court held that while it was preferable for a jury to determine facts that could increase a sentence, the judge was not precluded from considering uncharged acts if they were clearly established by the evidence. The High Court emphasised that the judge must ensure that the sentence reflects the totality of the offender's conduct and the circumstances of the offence. The court found no error in the judge's approach, as the uncharged acts were integral to understanding the context and gravity of the crime. Consequently, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

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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