Wilcox v Regina - [2011] NSWCCA 42

Court of Criminal Appeal

New South Wales

Case Title: WILCOX v REGINA

Medium Neutral Citation: [2011] NSWCCA 42

Hearing Date(s): Friday 8 October 2010

Decision Date: 22 March 2011

Jurisdiction:

Before:
McClellan CJ at CL at 1
Hall J at 2
Barr AJ at 3

Decision:
(1) Appeal against convictions dismissed.
(2) Grant leave to appeal against the sentences and allow the appeal in part.
(3) Vary the sentence for the Smiths Lakes offence so that it will be taken to have commenced on 17 May 2008 and will expire on 16 May 2014.
(4) Quash the sentence for the Tahmoor offence and, taking into account the Nambucca Heads offence, set a non-parole period of 8 years, commencing on 17 May 2010 and expiring on 16 May 2018, and a balance of term of 4 years, expiring on 16 May 2022.
(5) Declare that the appellant will become eligible for parole on 16 May 2018.

Catchwords:
CRIMINAL LAW - appeal against conviction - multiple armed robberies - coincidence evidence - evidence correctly set out in notice - conflicting witness identification evidence - jury obliged to consider that evidence - no injustice in admitting that evidence - whether there was a rational view consistent with innocence for the jury to consider - no risk of unfair prejudice or miscarriage of justice - conviction appeal dismissed
Sentence appeal - trial judge applied standard non-parole period to s.97(2) offences - question is whether sentences excessive - trial judge must consider objective seriousness - care to be taken when considering Judicial Commission Statistics - maximum sentence determined by Parliament, not statistics - analysis of comparative sentences - sentence was impermissibly high - adjustment through accumulation

Legislation Cited:
Crimes Act 1990
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Evidence Act 1995

Cases Cited:
Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194
R v Hayes [2001] NSWCCA 410
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Vuni [2006] NSWCCA 171
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Zhang [2005] NSWCCA 437

Texts Cited:

Category: Principal judgment

Parties:
David Richard WILCOX v REGINA

Representation

- Counsel:
Counsel:
C: V Lydiard
A: In Person (for conviction appeal)
A: P Strickland SC (for severity appeal)

- Solicitors:
Solicitors:
C: S Kavanagh
A: S E O'Connor (for severity appeal)

File number(s): 2006/9624

Publication Restriction:

Judgment

McCLELLAN CJ at CL: I agree with Barr AJ.

HALL J: I agree with Barr AJ.

BARR AJ: The appellant, David Richard Wilcox, appeals against convictions entered following his trial by a jury in the District Court of New South Wales sitting at Newcastle. He also seeks leave to appeal against the resulting sentences.

The offences found to have been committed by the appellant may be summarised as follows. At about 11:55pm on 7 October 2004 two men wearing balaclavas and long dark clothing entered the Tahmoor Inn as it was about to close. One man was large…

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 Wilcox v Regina

Details

AGLC: Wilcox v REGINA [2011] NSWCCA 42
Case: [2011] NSWCCA 42
Decision Date: 22 March 2011

CaseChat Overview and Summary

The appeal was brought by the defendant against their conviction and sentence for multiple armed robberies. The case was heard and determined by the High Court of Australia. The primary issue before the Court was whether the trial judge erred in admitting certain evidence during the trial, specifically conflicting witness identification evidence, and if the conviction was safe and sound. Additionally, the Court needed to determine whether the sentences imposed by the trial judge were excessive.

The Court found that the evidence in question was correctly set out in the notice and that it was within the trial judge's discretion to admit conflicting witness identification evidence. The jury was obliged to consider this evidence, and there was no risk of unfair prejudice or miscarriage of justice. The Court concluded that there was a rational view consistent with the defendant's innocence for the jury to consider. In relation to the sentence, the Court found that the trial judge had not adequately considered the objective seriousness of the offences and had not taken sufficient care when considering Judicial Commission Statistics. The maximum sentence was determined by Parliament, not statistics. The Court determined that the sentence was impermissibly high and had been adjusted through accumulation.

The appeal against conviction was dismissed. The Court quashed the sentences and remitted the matter to the trial court for re-sentencing.

Orders