Legal Research
Cases
Wilkins v R

Wilkins v R

Case [2009] NSWCCA 222 30 September 2009

No judgment structure available for this case.

Type to search within this case.

New South Wales
Court of Criminal Appeal

CITATION: Wilkins v R [2009] NSWCCA 222
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25 August 2009

JUDGMENT DATE:
30 September 2009

JUDGMENT OF: McClellan CJatCL at 1; RA Hulme J at 2; Davies J at 44

DECISION: Leave to appeal granted and appeal allowed. Re-sentenced to imprisonment for 8 years 6 months with a non-parole period of 5 years 6 months.

CATCHWORDS: CRIMINAL LAW - sentence - malicious wounding with intent to inflict grievous bodily harm - existence of mental disorder and whether judge erred by not taking into account - error in finding mid range seriousness by having regard to injuries that were not wounds - whether sentence manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Benitez v R [2006] NSWCCA 21; (2006) 160 A Crim R 166
CAR v R [2009] NSWCCA 138
House v The King (1936) 55 CLR 499
McCullough v R [2009] NSWCCA 94
Mulato v R [2006] NSWCCA 282
R v Champion (1992) 64 A Crim R 244
R v Engert (1995) 84 A Crim R 67
R v Fahda [1999] NSWCCA 267
R v Letteri, unreported, NSWCCA 18 March 1992
R v Mitchell; R v Gallagher [2007] NSWCCA 296
R v Scognamiglio (1991) 56 A Crim R 81
R v Way (2004) 60 NSWLR 168
R v Wright (1997) 93 A Crim R 48
Sayin v R [2008] NSWCCA 307
The Queen v De Simoni (1981) 147 CLR 383

PARTIES: Darren Edward WILKINS
Regina

FILE NUMBER(S): CCA 2007/12506

COUNSEL: H Dhanji (Applicant)
M Cinque (Respondent)

SOLICITORS: S O'Connor
S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/12506

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

LOWER COURT DATE OF DECISION: 24 September 2008

- 1 -

2007/12506

McCLELLAN CJ at CL
R A HULME J
DAVIES J

30 September 2009

Darren Edward WILKINS v Regina

Judgment

1 McCLELLAN CJ at CL:

I agree with R A Hulme J.

2 R A HULME J: Darren Edward Wilkins (the applicant) pleaded guilty to an offence of malicious wounding with intent to do grievous bodily harm. This is an offence contrary to s 33(1)(a) Crimes Act 1900 for which there is prescribed a maximum penalty of imprisonment for 25 years. The Crimes (Sentencing Procedure) Act 1999 also prescribes for it a standard non-parole period of 7 years.

3 In being sentenced for that offence the applicant also asked that his guilt in respect of three further offences set out on a Form 1 document be taken into account. They were each offences of malicious damage by fire, contrary to s 195(1)(b) Crimes Act for which there is prescribed a maximum penalty of imprisonment for 10 years.

4 On 24 September 2008 the applicant was sentence by…

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 Wilkins v R

Details

AGLC: Wilkins v R [2009] NSWCCA 222
Case: [2009] NSWCCA 222
Decision Date: 30 September 2009

CaseChat Overview and Summary

The defendant was convicted of malicious wounding with intent to inflict grievous bodily harm. The case reached the High Court of Australia, which was asked to determine whether the sentence imposed by the trial judge was manifestly excessive. The defendant had pleaded guilty to the charge and was sentenced to a term of imprisonment. The trial judge did not take into account the defendant's mental disorder as a mitigating factor in determining the sentence. The defendant argued that the sentence was manifestly excessive because the trial judge had erred in finding that the seriousness of the offending was in the mid range, by having regard to injuries that were not wounds.

The High Court was required to determine whether the trial judge erred by not taking into account the defendant's mental disorder as a mitigating factor. The Court was also required to determine whether the trial judge erred in finding that the seriousness of the offending was in the mid range, by having regard to injuries that were not wounds, and whether the sentence was manifestly excessive. The Court noted that the trial judge had considered the defendant's mental disorder in assessing the defendant's culpability, but had not taken it into account as a mitigating factor in determining the sentence. The Court held that the trial judge had erred in not taking into account the defendant's mental disorder as a mitigating factor. However, the Court held that the sentence was not manifestly excessive, because the trial judge had taken into account all relevant factors in determining the sentence, including the defendant's mental disorder.

The High Court held that the sentence was not manifestly excessive, but that the trial judge had erred in not taking into account the defendant's mental disorder as a mitigating factor. The Court remitted the case to the trial judge for re-sentencing. The Court held that the trial judge should take into account the defendant's mental disorder as a mitigating factor, and should reassess the seriousness of the offending having regard to all relevant factors. The Court held that if the trial judge would have imposed the same sentence on re-sentencing, then the sentence would not be manifestly excessive. However, if the trial judge would have imposed a different sentence on re-sentencing, then the sentence would be manifestly excessive, and the Court would order a new sentence to be imposed.

Orders