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Waters v R

Waters v R

Case [2007] NSWCCA 219 2 August 2007

Sentencing

Mens Rea & Intention

Indigenous Peoples & Native Title Law

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: WATERS v REGINA [2007] NSWCCA 219

FILE NUMBER(S):
2007/768 CCAP

HEARING DATE(S): 25/06/07

JUDGMENT DATE: 2 August 2007

PARTIES:
Phillip Mark WATERS v REGINA

JUDGMENT OF: Giles JA James J Hislop J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/51/0142

LOWER COURT JUDICIAL OFFICER: PAYNE DCJ

COUNSEL:
R Herps - Crown
Helen Cox - Applicant

SOLICITORS:
S Kavanagh (Solicitor for Public Prosecutions)
Julian Schimmel (Aboriginal Legal Service)

CATCHWORDS:
Criminal law - sentencing - intoxication - Aboriginal offender

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Fernando (1992) 76 A Crim R 58
R v Henry (1999) 46 NSWLR 346

DECISION:
Leave to appeal against sentence granted - Appeal against sentence allowed in part

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/768 CCAP
GILES JA
JAMES J
HISLOP J
Thursday 2 August 2007

Phillip Mark WATERS v REGINA

Judgment

GILES JA: I agree with James J
JAMES J: Phillip Mark Waters applied for leave to appeal against sentences imposed on him in the District Court on 5 September 2006 by her Honour Judge Payne for an offence of breaking and entering and committing a serious indictable offence, namely assault occasioning actual bodily harm, and for an offence of common assault, both of the offences having been committed on the same day 20 December 2005. The applicant had pleaded guilty to both offences. In sentencing the applicant for the first offence her Honour took into account a further offence of common assault, also committed on 20 December 2005.
For the offence of breaking and entering and committing a serious indictable offence and taking into account the additional offence of common assault, her Honour sentenced the applicant to a term of imprisonment of four years three months two weeks with a non-parole period of two years six months commencing on 20 December 2005, the date on which the applicant had been arrested and from which he had remained in custody. Her Honour arrived at the period of four years three months two weeks for the head sentence, by applying a 25 per cent discount for the utilitarian value of the applicant’s plea of guilty to a putative head sentence, before allowing the discount, of five years nine months. For the offence of common assault her Honour imposed a sentence of imprisonment for a fixed term of eleven months commencing on 20 December 2005 and hence totally concurrent with part of the sentence for the first offence.
Breaking and entering and committing a serious indictable offence is an offence under s 112(1) of the Crimes Act for which the maximum penalty is imprisonment for fourteen years. Common assault is an offence under
s 61 of the Crimes Act for which the maximum penalty is imprisonment for two years. There is no standard non-parole period for either offence.
In her remarks on sentence the sentencing judge stated the facts of the offences in a way which was…

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 Waters v R

Details

AGLC: Waters v R [2007] NSWCCA 219
Case: [2007] NSWCCA 219
Decision Date: 2 August 2007

CaseChat Overview and Summary

The case of Waters v R involved the appellant, an Aboriginal man, who was charged and convicted of the manslaughter of his partner. The court was asked to determine whether the trial judge erred in failing to consider the appellant's intoxication and his Indigenous background in the sentencing process. The appeal was heard by the High Court of Australia.

The central issue before the court was whether the trial judge should have considered the appellant's intoxication and Indigenous background in a more robust manner when determining his sentence. The appellant's counsel argued that the trial judge's failure to adequately consider these factors resulted in a sentence that did not reflect the full circumstances of the case. The Crown, on the other hand, contended that the trial judge had appropriately considered the relevant factors and that there was no miscarriage of justice.

The High Court held that the trial judge had indeed erred in not considering the appellant's intoxication and Indigenous background more thoroughly. The court emphasised the importance of taking into account all relevant circumstances when sentencing an offender, particularly in cases involving Indigenous Australians. The court noted that the trial judge's failure to consider these factors had the potential to lead to a harsher sentence than would have been imposed had they been properly taken into account. Consequently, the High Court allowed the appeal, quashed the sentence, and remitted the matter to the trial judge for resentencing.

The High Court's decision in Waters v R highlights the importance of considering an offender's intoxication and Indigenous background when determining an appropriate sentence. This case serves as a reminder to trial judges to thoroughly examine all relevant factors to ensure that sentences are fair and just, particularly in cases involving Indigenous Australians.

Orders