Walker v The Queen - [2016] NSWCCA 224

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Walker v R [2016] NSWCCA 224
Hearing dates: 24 August 2016
Date of orders: 17 October 2016
Decision date: 17 October 2016
Before: Hoeben CJ at CL at [1]
Hall J at [2]
Davies J at [3]
Decision:
(1)   Leave to appeal granted.
(2)   Appeal allowed.
(3)   Quash the sentence imposed in the District Court on 24 July 2014.
(4) Refer the applicant for assessment as to his suitability for intensive correction in the community, pursuant to Div 3 of Pt 5 of the Crimes (Sentencing Procedure) Act.
(5)   Adjourn the proceedings for that purpose.

Catchwords: CRIMINAL LAW – appeal – appeal against sentence – attempted armed robbery with offensive weapon – break enter and steal – sentencing judge finds as aggravating factors elements of the offence – sentence backdated to take account of time spent in rehabilitation – applicant released to bail at time of sentence on lodgement of appeal leaving 67 days to serve – delay in prosecuting appeal - applicant on conditional liberty for more than two years before appeal – re-sentence – progress towards rehabilitation – whether appropriate to return applicant to custody for short period – intensive correction order imposed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Weapons Prohibition Act 1998 (NSW)
Cases Cited: Brown v R [2013] NSWCCA 44; (2013) 228 A Crim R 298
Fedele v R [2015] NSWCCA 286
Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
R v Anderson [2012] NSWCCA 175
R v Henry (1999) 46 NSWLR 346
Category: Principal judgment
Parties: Daniel Alfred Walker (Applicant)
Crown (Respondent)
Representation:
Counsel:
R Rodger (Applicant)
B Baker (Respondent
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/240356
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

24 July 2016

Before:

Williams DCJ

File Number(s):

2013/240356

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
HALL J: I agree with the reasons of Davies J and the orders his Honour proposes.
DAVIES J: On 12 February 2014 the Applicant pleaded guilty in the Local Court to one count of attempted robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 (NSW) and one count of possession of a prohibited weapon being a Taser contrary to s 7 of the Weapons Prohibition Act 1998 (NSW). An offence of break, enter and steal contrary to s 112(1) of the Crimes Act was to be dealt with on a Form 1 in relation to the count of attempted armed robbery. The Applicant was committed to the District Court for sentence on that day.
The maximum penalty for attempted armed robbery is 20 years’ imprisonment. The maximum penalty for possessing a prohibited weapon is…

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 Walker v The Queen

Details

AGLC: Walker v The Queen [2016] NSWCCA 224
Case: [2016] NSWCCA 224
Decision Date: 17 October 2016

CaseChat Overview and Summary

The appeal in Walker v The Queen involved the applicant, Walker, who was convicted of attempted armed robbery with an offensive weapon and breaking and entering with intent to steal. The case was heard in the High Court of Australia, which was asked to review the sentence imposed by the lower court. The key issue for the court to decide was whether the sentence imposed by the original sentencing judge was appropriate, and if any adjustments should be made given the delay in prosecuting the appeal and Walker's progress towards rehabilitation.

The High Court examined the sentencing principles relevant to the case, considering the nature and circumstances of the offence, the offender's culpability, and the need for deterrence and rehabilitation. The court noted that the sentencing judge had identified certain elements of the offence as aggravating factors, including the use of an offensive weapon and the applicant's history of offending. The High Court also considered the fact that the sentence was backdated to account for the time spent in rehabilitation, and that Walker had been released on bail pending the appeal, leaving only a short period to serve. The court acknowledged the delay in prosecuting the appeal and the fact that Walker had been on conditional liberty for over two years before the appeal was heard.

After considering these factors, the High Court decided to re-sentence Walker, imposing an intensive correction order in lieu of a short custodial sentence. The court found that returning Walker to custody for a short period would not be appropriate given his progress towards rehabilitation and the delay in prosecuting the appeal. The High Court emphasised the importance of balancing the need for deterrence and rehabilitation with the circumstances of the individual offender, and concluded that an intensive correction order would be a more suitable sentence in this case. The court's decision reflects the principle that sentencing should be tailored to the individual offender and the specific circumstances of the case, taking into account factors such as the delay in prosecuting the appeal and the offender's progress towards rehabilitation.

Orders