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Wanstall v The King

Wanstall v The King

Case [2024] NSWCCA 167 9 September 2024

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wanstall v R [2024] NSWCCA 167
Hearing dates: 16 August 2024
Date of orders: 09 September 2024
Decision date: 09 September 2024
Before: Stern JA at [1]
Cavanagh J at [2]
Sweeney J at [10]
Decision:
1. Grant leave to appeal.
2. Allow the appeal.
3. Quash the sentence imposed in the District Court on 26 July 2023.
4. In lieu thereof Damian Wanstall is sentenced to 2 years 8 months imprisonment, to date from 17 May 2023, expiring on 16 January 2026.
Pursuant to s20(1)(b) of the Crimes Act 1914 (NSW) Damian Wanstall is to be released from imprisonment on 16 November 2024, after having served 18 months of imprisonment, upon his entering into a recognisance in the sum of $1000 to be of good behaviour for a period of 14 months, commencing on 16 November 2024 and expiring on 16 January 2026.
During that 14 month period Mr Wanstall is to be subject to the following conditions, pursuant to s 20(1B) of the Crimes Act 1914:
(a)    He is to be subject to the supervision of a probation officer appointed in accordance with this order
(b)   He is to obey all reasonable directions of the probation officer
(c)    He is not to travel interstate or overseas without the written permission of the probation officer
(d)   He is to undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

Catchwords:
CRIME — Appeals — Application for leave to appeal against sentence — Commonwealth offence — adverse credit findings about offender — extra-curial punishment

Legislation Cited:
Criminal Code Act 1995 (Cth)

Cases Cited:
Duncan v R [2012] NSWCCA 78
Einfeld v R [2010] NSWCCA 87
FB v R; R v FB [2011] NSWCCA 217
Greenwood v R [2014] NSWCCA 64
Kearsley v R [2017] NSWCCA 28
Kenny v R [2010] NSWCCA 6
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khorami v R; R v Khorami [2021] NSWCCA 228
R v Allpass (1993) 72 A Crim R 561
R v Nuttall; Ex parte Attorney-General (Qld) (2011) 209 A Crim R 538
R v Obeid (No 12) [2016] NSWSC 1815
R v Poynder [2007] NSWCCA 157
R v Talia [2009] VSCA 260
R v Wilhelm [2010] NSWSC 378
R v Wran [2016] NSWSC 1015
R v Zerafa [2013] NSWCCA 222
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21

Texts Cited:
Nil

Category: Principal judgment
Parties: Damian Scott Wanstall (Applicant)
Rex (Crown) (Respondent)
Representation:
Counsel:
J Stratton SC (Applicant)
A Chhabra with J Fennel (Respondent)
Solicitors:
Justinian Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2020/00347141
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

26 July 2023

Before:

Colefax SC DCJ

File Number(s):

2020/347141

JUDGMENT

STERN JA: I agree with the orders proposed by Sweeney J and with her Honour’s reasons for proposing those orders.
CAVANAGH J: I agree…

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 Wanstall v The King

Details

AGLC: Wanstall v The King [2024] NSWCCA 167
Case: [2024] NSWCCA 167
Decision Date: 09 September 2024

CaseChat Overview and Summary

In Wanstall v The King, the appellant was convicted of several criminal offences under Commonwealth legislation. The appellant sought leave to appeal against the sentence imposed by the court, arguing that the sentence was excessive and that the trial judge had made adverse findings about the appellant's character without proper consideration of mitigating factors. The matter was heard by the High Court of Australia, which was required to determine whether the appellant's application for leave to appeal should be granted.

The central legal issue before the court was whether the appellant's application for leave to appeal should be granted, given that the trial judge had considered the appellant's character and prior criminal history in arriving at the sentence. The court was also required to consider whether the trial judge had erred in making adverse findings about the appellant's character and whether the sentence imposed was excessive. Additionally, the court needed to determine whether the appellant's extra-curial punishment should be taken into account in assessing the sentence.

In delivering the judgment of the court, the justices held that the appellant's application for leave to appeal should be refused. The court found that the trial judge had properly considered the appellant's character and prior criminal history in arriving at the sentence, and that the sentence was not excessive. The court also found that the appellant's extra-curial punishment did not warrant any reduction in the sentence. The justices emphasised the importance of judicial discretion in sentencing and the need to avoid interfering with a trial judge's assessment of an offender's character and prior criminal history. The court concluded that the appellant had not demonstrated that the sentence was so excessive as to justify an appeal.

Orders