Wallace, Mark Phillip v Regina - [2014] NSWCCA 54

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 1999
Cases 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 176
Category: 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…

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 Wallace, Mark Phillip v Regina

Details

AGLC: Wallace, Mark Phillip v Regina [2014] NSWCCA 54
Case: [2014] NSWCCA 54
Decision Date: 15 April 2014

CaseChat Overview and Summary

In the case of Mark Phillip Wallace against the Regina, the applicant appealed against his sentence, seeking leave to do so. The charges included one count of aggravated break and enter and commit serious indictable offence under section 112(2) of the Crimes Act 1900, and one count of common assault under section 61 of the Crimes Act 1900. The primary issue before the court was whether the trial judge failed to adequately consider or give proper regard to the applicant's post-offence ameliorative conduct when determining the sentence. This issue was examined in light of the decision in Thewlis v The Queen.

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