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Walker v The Queen

Walker v The Queen

Case [2016] NSWCCA 213 5 October 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Walker v R [2016] NSWCCA 213
Hearing dates: 26 September 2016
Decision date: 05 October 2016
Before: Gleeson JA at [1];
Harrison J at [67];
Campbell J at [68]
Decision:
1 Grant leave to appeal against sentence.
2 Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – Crimes (Sentencing Procedure) Act 1999 (NSW) s 5 – whether imprisonment only appropriate penalty – where applicant entered guilty plea in 2004 to charge of maliciously inflicting grievous bodily harm – s 35(b) Crimes Act 1900 – maximum penalty 7 years imprisonment – unprovoked punch to victim requiring jaw reconstruction – where applicant failed to appear on sentence and warrant issued – where applicant apprehended by chance in 2015 and sentenced to 2 years imprisonment with 12 month non-parole period – whether primary judge considered alternatives to full-time custodial sentence – where finding by primary judge that full-time custodial sentence only appropriate option – whether primary judge considered applicant’s rehabilitation during delay in sentencing – distinction between delay arising from circumstances outside offender’s control and delay caused by offender – whether full-time custodial sentence manifestly excessive or unjust – objective seriousness of offence
Legislation Cited: Crimes Act 1900 (NSW) s 35
Crimes (Sentencing Procedure) Act 1999 (NSW) s 5
Cases Cited: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Douar v R [2005] NSWCCA 455
Fedele v R [2015] NSWCCA 286
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King [1936] HCA 40; 55 CLR 499
Lambert v R [2015] NSWCCA 22
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Papworth v R [2011] NSWCCA 253
R v Foster (2001) 33 MVR 565; [2001] NSWCCA 215
R v JCE (2000)] 120 A Crim R 18; NSWCCA 498
R v Morgan (1993) 70 A Crim R 368
R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225
R v Reeves [2002] NSWCCA 33
R v Shore (1992) 66 A Crim R 37
R v Todd (1982) 2 NSWLR 517
R v Wegener [1999] NSWCCA 405
R v Zamagias [2002] NSWCCA 17
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Gary Todd Walker (Applicant)
Regina (Respondent)
Representation:
Counsel:
G Wendler (Applicant)
N Williams (Respondent)
Solicitors:
John D Weller & Associates (Applicant)
Solicitor for the Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2003/7453
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

11 March 2016

Before:

Wells DCJ

File Number(s):

2003/7453

Judgment

GLEESON JA: The applicant, Gary Todd Walker, pleaded guilty in the District Court at Lismore on 10 May 2004 to the offence of maliciously inflicting grievous bodily harm contrary to s 35(b) of the Crimes Act

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 213
Case: [2016] NSWCCA 213
Decision Date: 05 October 2016

CaseChat Overview and Summary

In Walker v The Queen, the applicant, who had previously entered a guilty plea in 2004 to a charge of maliciously inflicting grievous bodily harm, appealed against his sentence. The applicant had struck the victim without provocation, resulting in severe injuries that necessitated jaw reconstruction. He was originally to be sentenced in 2004 but failed to appear, leading to a warrant being issued for his arrest. He was finally apprehended in 2015 and subsequently sentenced to two years in prison, with a non-parole period of 12 months.

The legal issues at hand required the court to determine whether the primary judge had adequately considered alternatives to a full-time custodial sentence and whether the delay in sentencing impacted the applicant's rehabilitation prospects. Additionally, the court had to assess if the sentence imposed was manifestly excessive or unjust, considering the objective seriousness of the offence and the statutory maximum penalty of seven years imprisonment.

The court found that the primary judge had not comprehensively explored alternatives to imprisonment, though acknowledged that the seriousness of the offence warranted a custodial sentence. It was emphasised that the delay in sentencing was due to the applicant's actions and not circumstances beyond his control. Despite the delay, the court upheld the sentence, finding it neither manifestly excessive nor unjust, given the nature of the crime and the need to uphold the rule of law.

The final orders of the court affirmed the sentence handed down by the primary judge, with the appeal dismissed. The court also highlighted the importance of considering rehabilitation and alternatives to imprisonment in future sentencing proceedings.

Orders