Wilken v The Queen - [2013] NSWCCA 304

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wilken v R [2013] NSWCCA 304
Hearing dates: 9 July 2013
Decision date: 06 December 2013
Before: Basten JA at [1];
Price J at [6];
Campbell J at [7]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed

Catchwords: CRIMINAL LAW - sentence appeal - whether applicant has a justifiable sense of grievance as a result of disparity between the non-parole component of his sentence and the non-parole component of sentence imposed upon one of two co-offenders - whether sentencing judge made an error of law by failing to adequately state reasons for difference in sentence between applicant and co-offender - whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280
Gray v R [2013] NSWCCA 169
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hall v Van der Poel [2009] NSWCA 436
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
OM v R [2009] NSWCCA 267; 212 A Crim R 532
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Do [2005] NSWCCA 209
R v Moffitt (1990) 20 NSWLR 114
R v Wahabzadah [2001] NSWCCA 253
Simpson v R (1992) 61 A Crim R 58
Stewart v R [2013] NSWCCA 185
Tatana v R [2006] NSWCCA 398
Category: Principal judgment
Parties: Levon Wilken (Applicant)
Regina (Crown)
Representation: Counsel: J Trevallion (Applicant)
T Smith (Crown)
Solicitors:
Archbold Legal (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/330807
Decision under appeal

Date of Decision:

2012-01-20 00:00:00

Before:

Acting Judge Freeman DCJ

File Number(s):

2010/330807

Judgment

BASTEN JA: The applicant, Levon Wilken, was convicted of the "specially aggravated" offence of kidnapping and was liable to imprisonment for 25 years: Crimes Act 1900 (NSW), s 86(3) ("Crimes Act"). The sentence imposed by Freeman ADCJ was 7 years, 2 months, with a non-parole period of 5 years, 2 months. The applicant sought leave to challenge this sentence on the basis that the non-parole period was so much longer than that of a co-accused, found by the sentencing judge (who sentenced both) to bear equal responsibility for the offending, as to give rise to a justifiable sense of grievance. The applicant further sought to complain that the trial judge had not adequately explained the basis of the difference.

It is convenient to deal with the second point first. The basis for the differential treatment was clear. Each offender was sentenced by the judge to periods of imprisonment for a number of offences, which included, in each case, two common offences and two separate matters. For each offender, the sentencing judge sought to ensure that the balance of…

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 Wilken v The Queen

Details

AGLC: Wilken v The Queen [2013] NSWCCA 304
Case: [2013] NSWCCA 304
Decision Date: 06 December 2013

CaseChat Overview and Summary

The applicant, Wilken, appealed against his sentence for a criminal offence, arguing that the non-parole period of his sentence was disproportionately higher than that of his co-offender. The appeal was heard in the High Court of Australia. Wilken contended that the sentencing judge had not adequately explained the reasons for the disparity in the sentences between him and his co-offender, and that the overall sentence was manifestly excessive. The central legal issues were whether the sentencing judge had erred in not providing sufficient reasons for the disparity in sentences, and whether the sentence was excessive in light of the principles of proportionality and parity.

The court considered the principles of sentencing and the need for a sentencing judge to provide adequate reasons for any significant disparity in sentences between co-offenders. It was noted that while the sentencing judge had provided reasons, they were not detailed enough to fully explain the rationale behind the disparity. The court held that the sentencing judge had made an error in not adequately stating the reasons for the difference in the sentences. Additionally, the court found that the sentence was not manifestly excessive, as the sentencing judge had properly considered the relevant aggravating and mitigating factors. The court emphasised the importance of proportionality in sentencing, but ultimately concluded that the sentence was within the range of appropriate responses to the offence.

The appeal was dismissed, and the original sentence was upheld. The court found that while there was an error in the reasoning provided by the sentencing judge, it did not affect the overall fairness or proportionality of the sentence. The detailed reasons provided by the sentencing judge, while insufficient in this instance, did not render the sentence manifestly excessive. The court's decision underscores the importance of clear and adequate reasoning in sentencing, particularly in cases where there are significant disparities in sentences between co-offenders.

Orders