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Wiggins v R

Wiggins v R

Case [2010] NSWCCA 30 2 March 2010

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New South Wales
Court of Criminal Appeal

CITATION: WIGGINS, Daniel Peter v R [2010] NSWCCA 30

HEARING DATE(S): 04/02/2010

JUDGMENT DATE:
2 March 2010

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 3; Harrison J at 21

DECISION: Leave to appeal is granted but the appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - Sentence - taking into account time served - sentence should be backdated unless good reasons for not doing so - error but no lesser sentence warranted.

LEGISLATION CITED: Crimes Act 1900 - ss 59, 92(1)

CATEGORY: Principal judgment

CASES CITED: R v English [2000] NSWCCA 245
R v Howard [2001] NSWCCA 309
R v Phillips [2002] NSWCCA 167
R v Newman and Simpson [2004] NSWCCA 102; 145 A Crim R 361
Abdul-Kader v R [2007] NSWCCA 329; 178 A Crim R 281
White v R [2009] NSWCCA 118
R v Hall [2005] NSWCCA [2005] NSWCCA 217
Starmer v R [2008] NSWCCA 27

PARTIES: Daniel Peter Wiggins v Regina

FILE NUMBER(S): CCA 2008/10012

COUNSEL: L Lamprati - Crown
A Francis - Applicant

SOLICITORS: S Kavanagh - Crown
S O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/1039

LOWER COURT JUDICIAL OFFICER: McGuire ADCJ

LOWER COURT DATE OF DECISION: 12/12/2008

2008/10012

McCLELLAN CJ AT CL
HOWIE J
HARRISON J
TUESDAY 2 MARCH 2010

Daniel Peter WIGGINS v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J that this Court should not intervene and the appeal should be dismissed.

2 When an offender has already served a period in custody for the offence for which he is being sentenced he or she will always consider the sentence process to be unjust unless they are assured that the pre-sentence custody is reflected in the sentence. Because sentences are expressed by reference to years and months confidence in the system is best maintained by commencing the sentence at a date when the period of pre-sentence custody can be clearly identified as having been taken into account. Although there will be cases where this is not appropriate they should be infrequent.

: This Court has repeatedly stated that the preferable course to adopt, where an offender has served a period of pre-sentence custody, is to backdate the sentence imposed by a period equivalent to the pre-sentence custody. In R v English [2000] NSWCCA 245, Giles JA stated (my underlining):

(1985) 1 NSWLR 588

The desirability is put not as something which is mandatory,…

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 Wiggins v R

Details

AGLC: Wiggins v R [2010] NSWCCA 30
Case: [2010] NSWCCA 30
Decision Date: 2 March 2010

CaseChat Overview and Summary

In the case of Wiggins v R, the appellant, Mr Wiggins, was convicted of a crime and sentenced by the trial judge. The appeal was against his sentence, arguing it was excessive. The High Court of Australia heard the appeal, considering whether the sentence was appropriate and whether the time Wiggins had already served should be taken into account. The central issue was whether the trial judge adequately considered the principle that a sentence should be backdated unless there are compelling reasons not to, and if the error in not doing so warranted a lesser sentence.

The court examined the principles governing sentencing and the obligation of judges to consider time already served in custody. It acknowledged that the trial judge had erred in not backdating the sentence to account for the time Wiggins had already spent in custody. However, the court held that the error was not so significant as to warrant a lesser sentence. The appeal was dismissed, and the original sentence upheld. The court reasoned that the trial judge's sentence was within the appropriate range and that the error in not backdating the sentence did not undermine the overall fairness and appropriateness of the punishment imposed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of the trial judge was upheld. The court did not impose a lesser sentence or order a retrial, concluding that the trial judge's decision was correct in all material respects, despite the procedural error. The judgment reinforced the importance of considering time served when sentencing but found no grounds for altering the sentence in this case.

Orders