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 144Category: Principal judgment Parties: Everett Charles Weatherall - Applicant
Regina - Respondent CrownRepresentation: 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…
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- AGLC
- Weatherall v The Queen [2013] NSWCCA 282
- Case
- [2013] NSWCCA 282
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: HOEBEN CJ
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