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Weatherall v R

Weatherall v R

Case [2013] NSWCCA 282 18 November 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Weatherall v R [2013] NSWCCA 282
Hearing dates: 21 October 2013
Decision date: 18 November 2013
Before: Hoeben CJ at CL at [1]
Johnson J at [52]
Bellew J at [53]
Decision:
Application for extension of time dismissed.

Catchwords: CRIMINAL LAW - sentence appeal -two counts of aggravated sexual intercourse in company - applicant sentenced in September 2007 - whether decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 entitled applicant to an extension of time for leave to appeal against sentence - importance of principle of finality - whether substantial injustice would result if an extension of time were refused - whether "Muldrock error" had occurred - whether sentence manifestly excessive - application of s6(3) of the Criminal Appeal Act 1912 - no lesser sentence warranted in law - application for extension of time dismissed.
Legislation Cited: Crimes Act 1900 - s61JA
Criminal Appeal Act 1912 (NSW) - s6(3)
Cases Cited: Abdul v R [2013] NSWCCA 247
Butler v R [2012] NSWCCA 23
Essex v R [2013] NSWCCA 11
FP v R [2012] NSWCCA 182
Franklin v R [2013] NSWCCA 122
KG v R [2012] NSWCCA 10
King v R [2010] NSWCCA 33
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Qoro v R [2008] NSWCCA 220
Essex v R [2013] NSWCCA 11
Zarakas v R [2013] NSWCCA 144
Category: Principal judgment
Parties: Everett Charles Weatherall - Applicant
Regina - Respondent Crown
Representation: Counsel:
Mr E Ozen - Applicant
Ms J Girdham SC - Respondent Crown
Solicitors:
S O'Connor, Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2006/14554
Decision under appeal

Date of Decision:

2007-09-20 00:00:00

Before:

Woods QC DCJ

File Number(s):

2006/14554

Judgment

HOEBEN CJ at CL:

Offence and sentence

The applicant was convicted after a trial by jury of two counts of aggravated sexual intercourse in company (deprivation of liberty before offence), contrary to s61JA Crimes Act 1900. The offences carry a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

On 20 September 2007 the applicant was sentenced by Woods QC DCJ to an overall term of imprisonment of 15 years with a non-parole period of 10 years. With respect to count 1, the applicant received a sentence of imprisonment with a non-parole period of 8 years with an additional term of 5 years. With respect to count 2, the applicant was sentenced to imprisonment with a non-parole period of 8 years with an additional term of 5 years. The sentence in respect of count 1 was to commence on 2 December 2005 and that in respect of count 2 on 2 December 2007. The total non-parole period will expire on 1 December 2015 and the balance of term on 1 December 2020. The applicant seeks an extension of time within which to apply…

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 Weatherall v R

Details

AGLC: Weatherall v The Queen [2013] NSWCCA 282
Case: [2013] NSWCCA 282
Decision Date: 18 November 2013

CaseChat Overview and Summary

In the case of Weatherall v R, the applicant, Weatherall, appealed against his sentence for two counts of aggravated sexual intercourse in company, which was handed down in September 2007. The High Court was tasked with determining whether the decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 entitled the applicant to an extension of time for leave to appeal against the sentence. The court had to weigh the importance of the principle of finality against the potential for a substantial injustice if an extension of time were refused.

The legal issues at hand involved whether a "Muldrock error" had occurred, whether the sentence was manifestly excessive, and whether an extension of time was warranted under s6(3) of the Criminal Appeal Act 1912. The court considered the principle of finality and the potential for substantial injustice if an extension of time were refused. It was necessary to determine if the sentence was manifestly excessive and whether a lesser sentence was warranted in law.

The High Court held that the application for an extension of time was dismissed. The court found that the principle of finality was an important consideration, and while the "Muldrock error" did occur, it did not result in a substantial injustice warranting an extension of time. Additionally, the court concluded that the sentence was not manifestly excessive and that no lesser sentence was warranted in law. As such, the application for an extension of time was dismissed, and the applicant's appeal against sentence was not entertained.

Orders