Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: WALLACE, Mark Phillip v Regina [2014] NSWCCA 54 Hearing dates: 12 February 2014 Decision date: 15 April 2014 Before: Emmett JA at [1];
Hall J at [7];
RS Hulme AJ at [89]Decision: (1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords: CRIMINAL LAW - sentence appeal - application for leave - one count of aggravated break and enter and commit serious indictable offence contrary to s 112(2) of the Crimes Act 1900 - one count of common assault contrary to s 61 of the Crimes Act 1900 - whether trial judge failed to have regard to or any proper regard to the applicant's ameliorative conduct - consideration of Thewlis v The Queen [2008] NSWCCA 176 - the sentencing judge had specific regard to the post-offence conduct of the applicant and made appropriate allowance for it, along with other subjective factors - sentence imposed by the sentencing judge was well within the range - no lesser sentence is warranted - leave granted - appeal dismissed Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999Cases Cited: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Porter v The Queen [2008] NSWCCA 145
R v Ellis (1986) 6 NSWLR 603
Ruttley v R [2010] NSWCCA 118
Thewlis v The Queen [2008] NSWCCA 176Category: Principal judgment Parties: Mark Phillip Wallace (Applicant)
Regina (Respondent)Representation: Counsel:
KJ Averre (Applicant)
T Smith (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2011/328960 Decision under appeal
- Jurisdiction:
- 9101
- Date of Decision:
- 2012-10-03 00:00:00
- Before:
- Marien SC DCJ
- File Number(s):
- 2011/328960
Judgment
EMMETT JA: The applicant, Mr Mike Wallace, seeks leave to appeal against the sentence imposed by the District Court when he pleaded guilty to two charges. The first charge was breaking and entering a dwelling occupied by Mr Geoffrey Heness and then committing the serious indictable offence of destroying property by fire in circumstances of aggravation, in that he knew that Heness was present within the dwelling. That charge carries a maximum penalty of 20 years' imprisonment, with a five year standard non-parole period. The second charge was common assault of Heness. That offence carries a maximum penalty of two years' imprisonment.
The offences were committed after Wallace and Heness, together with a third man, Mr Ross Heideman, had consumed an unknown quantity of alcohol on the night of 14 October 2011. Heness made a number of racial comments about Mr Wallace, which created a significant amount of tension. After Heness and Wallace left Heideman, Heness continued to make racial comments about Wallace. Wallace then took hold of Heness's neck and attempted to choke him. Heness and Wallace traded blows for a short period of time, with Wallace punching Heness to the head a number of times.
Heness then entered his dwelling, locked the front door, went to bed and fell asleep. Early in the morning of 15 October 2011, at around…
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- Wallace, Mark Phillip v Regina [2014] NSWCCA 54
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- [2014] NSWCCA 54
- Decision Date
CaseChat Overview and Summary
The court examined whether the sentencing judge had given specific regard to the applicant's conduct after the offence and whether the sentence imposed was within the appropriate range. It was noted that the sentencing judge had indeed considered the applicant's post-offence conduct and made appropriate allowance for it, along with other subjective factors. The court concluded that the sentence was well within the range and no lesser sentence was warranted. Consequently, the court granted the applicant leave to appeal but dismissed the appeal itself.
The court's decision was based on the thorough consideration of the sentencing judge's approach to the applicant's post-offence conduct and the overall appropriateness of the sentence. The final orders included the granting of leave to appeal but the dismissal of the appeal.
Orders
Orders of the court
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Background
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
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