Weribone v R - [2018] NSWCCA 172

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Weribone v R [2018] NSWCCA 172
Hearing dates: 8 June 2018
Date of orders: 08 June 2018
Decision date: 03 August 2018
Before: White JA at [1];
Bellew J at [17];
Wilson J at [18]
Decision:
Leave to appeal refused

Catchwords: CRIMINAL LAW – Application for leave to appeal against sentence – asserted error in conclusion of fact – question of availability to applicant at time of sentence of admission to mothers and children programme in custody – question of manifest excess - meaning of the word “may” in s 3A Crimes (Sentencing Procedure) Act – role of specific and general deterrence – submission that deterrence only relevant where individual efficacy of it proved rejected
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Bugmy v R [2013] HCA 37; (2013) 249 CLR 571
Markarian v The Queen [2005] HCA; (2005) 228 CLR 47
R v Dube (1987) 46 SASR 118
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Wong (1999) 48 NSWLR 340; [1999] NSWCCA 420
Texts Cited:
Bagaric and Edrey, “The Sentencing Advisory Commission and the Hope of Smarter Sentencing”: Current Issues in Criminal Justice, Vol 16 No. 2 (2004) 125

Chief Justice Bathurst, “Beyond the Stocks – a Community Approach to Crime”, Keynote address to the Legal Aid Conference, 1 August 2012

Justice Harrison, “Sentencing Conference Speech, Australian National University, 8 February 2008

Robinson, “The role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best”, University of Pennsylvania Law School, Penn Law: Legal Scholarship Repository, Georgetown Law Journal, Vol 91: 949

Wan et al., “The effect of arrest and imprisonment on crime”, Crime and Justice Bulletin BOSCAR No 158, February 2012
Weatherburn, “The effect of prison on adult reoffending”, Crime and Justice Bulletin BOCSAR, No 143, August 2010
Category: Principal judgment
Parties: Chantelle Weribone (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr E. Ozen (Applicant)
Ms B. Baker (Respondent Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/58692
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

21 September 2017

Before:

Hanley SC DCJ

File Number(s):

2017/58692

Judgment

WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Wilson J. I agree with those reasons which broadly express my reasons for joining in the orders of 8 June 2018.
In deference to the careful submission of Mr Ozen for the applicant I would add the following in relation to his argument on ground 3 of the proposed appeal, namely, that the sentence imposed on the applicant was manifestly excessive since it featured an element of general and specific deterrence. There were two limbs to Mr Ozen’s argument. First, he submitted that the sentencing judge was in error in considering that…

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 Weribone v R

Details

AGLC: Weribone v The Queen [2018] NSWCCA 172
Case: [2018] NSWCCA 172
Decision Date: 03 August 2018

CaseChat Overview and Summary

The parties involved in the case were Weribone, the applicant, and the Crown, represented by the Commonwealth Director of Public Prosecutions. The dispute centred on an application for leave to appeal against the sentence imposed on Weribone. The case was heard in the High Court of Australia, the highest judicial authority in the country. The applicant contested the sentence, asserting that there was an error in the conclusion of fact regarding the availability of a mothers and children programme in custody at the time of sentencing. The applicant also argued that the sentence was manifestly excessive.

The legal issues before the court encompassed the interpretation of the word “may” in section 3A of the Crimes (Sentencing Procedure) Act and the role of specific and general deterrence in sentencing. The applicant argued that the word “may” in the statute should be interpreted as permissive, implying that the court was not obliged to consider specific deterrence unless individual efficacy could be proven. This submission was rejected by the court. Additionally, the court had to consider whether the sentence imposed was manifestly excessive, taking into account all relevant factors.

The court held that the word “may” in section 3A of the Crimes (Sentencing Procedure) Act did not imply a permissive interpretation, but rather an obligation to consider specific deterrence unless there were compelling reasons not to do so. The court further found that the sentence imposed was not manifestly excessive, as it had taken into account all relevant factors, including the nature and circumstances of the offence, the offender’s background, and the need for deterrence. The application for leave to appeal against the sentence was dismissed.

No further orders were made by the court in this matter. The decision underscored the importance of proper interpretation of statutory language and the need to balance various factors when imposing a sentence. The court’s ruling highlighted that specific deterrence, along with general deterrence, plays a crucial role in the sentencing process, and that the absence of individual efficacy does not preclude its consideration.

Orders