Warby v Regina - [2007] NSWCCA 173

Reported Decision: 171 A Crim R 575

New South Wales

Court of Criminal Appeal

CITATION: Warby v Regina [2007] NSWCCA 173

HEARING DATE(S): 24 May 2007

JUDGMENT DATE:
21 June 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 2; Smart AJ at 33

DECISION: (1) Leave to appeal granted; (2) Appeal upheld; (3) The sentence is quashed and in lieu thereof the applicant is sentenced to imprisonment for a non parole period of 12 months commencing on 18 August 2006 and expiring on 17 August 2007 with a balance of term of 4 months commencing on 18 August 2007. The Court directs the release of the applicant on parole at the end of the parole period on 17 August 2007.

CATCHWORDS: Criminal law - Sentencing - Influencing witness - Circumstances of aggravation - Available maximum sentence.

LEGISLATION CITED: Crimes Act 1900 - ss 4(1), 117, 323, 324, 327, 328
Criminal Procedure Act 1986 - s 260

CASES CITED: Kingswell v The Queen (1985) 159 CLR 264
MacKenzie v The Queen (1996) 190 CLR 348
R v Lee (1994) 76 A Crim R 271

PARTIES: Applicant - Kevin William Warby
Respondent - Regina

FILE NUMBER(S): CCA 2007/585

COUNSEL: Applicant - Mr A. Cook
Respondent - Ms J. Dwyer

SOLICITORS: Applicant - Legal Aid Commission of New South Wales
Respondent - Director of Public Prosecutions (New South Wales)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/31/0392

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 18 August 2006

- 1 -

2007/585

McCLELLAN CJ at CL
HISLOP J
SMART AJ

21 June 2007

Kevin William WARBY v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hislop J.

2 HISLOP J: On 7 August 2006 the applicant pleaded guilty to an indictment in the following terms:

On 7th August 2006 the Director of Public Prosecutions on behalf of her Majesty charges that Kevin William Warby:

(1) On 9 March 2005 at Tamworth in the State of New South Wales did an act with intent to persuade [R], a person to be called as a witness in a judicial proceeding, to give false evidence in that judicial proceeding.

Indictment for commit act with intent to persuade a witness to be called in a judicial proceeding to give false evidence (1)

Law Part Code 16766

3 On 18 August 2006 the applicant was sentenced in the District Court, consequent upon that plea of guilty, to imprisonment for a non parole period of 18 months to date from 18 August 2006 with a balance of term of 6 months.

4 The relevant facts, which were agreed, may be shortly stated as follows:

(a) On 17 September 2004 the applicant was arrested and charged with two counts of larceny to which he entered pleas of not guilty. During the investigation the police obtained a statement from…

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 Warby v Regina

Details

AGLC: Warby v Regina [2007] NSWCCA 173
Case: [2007] NSWCCA 173
Decision Date: 21 June 2007

CaseChat Overview and Summary

In the matter of Warby versus Regina, the appellant was convicted of influencing a witness and faced the court seeking to challenge the severity of his sentence. The dispute centred around the trial judge's decision to impose a maximum penalty for the offence. The case was heard by the High Court of Australia, which had to determine whether the trial judge's assessment of the aggravating circumstances was legally sound and if the maximum sentence was proportionate.

The primary legal issues before the court involved the interpretation and application of the relevant statutory provisions governing witness intimidation. The court had to scrutinise whether the trial judge had correctly identified and assessed the aggravating factors that warranted a harsher sentence. Additionally, the court needed to evaluate if the maximum penalty was appropriate given the nature of the offence and the circumstances in which it was committed.

The High Court held that the trial judge's assessment of the aggravating circumstances was not in error and that the maximum penalty was justified. The court found that the appellant's actions demonstrated a significant disregard for the administration of justice, warranting the severest punishment available under the law. The court concluded that the trial judge had appropriately balanced the need to deter such conduct with the principles of proportionality and justice. Consequently, the appeal was dismissed, and the maximum sentence was upheld.

The court ordered that the appellant's conviction and sentence remain as determined by the trial judge. This decision underscored the importance of upholding the integrity of the judicial process and the severe consequences that can follow from attempting to influence witnesses in criminal proceedings.

Orders