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Willmott v The Queen

Willmott v The Queen

Case [2016] NSWCCA 256 9 December 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Willmott v R [2016] NSWCCA 256
Hearing dates: 7 October 2016
Date of orders: 09 December 2016
Decision date: 09 December 2016
Before: Meagher JA at [1];
Harrison J at [2];
R A Hulme J at [65]
Decision:
(1) Dismiss the appeal against sentence.
(2) Refer the appellant to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.

Catchwords: SENTENCE – appeal against sentence – whether sentence manifestly excessive – Drug Court Act 1998 s 5A – Drug Court Regulation 2015 reg 5 - whether appellant an “eligible convicted offender” – where appellant referred to the Drug Court for determination of whether he should be the subject of a compulsory drug treatment order
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Court Act 1998
Drug Court Regulation 2015
Inclosed Lands Protection Act 1901
Cases Cited: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Moses v R [2015] NSWCCA 218
R v Beale [2015] NSWCCA 120
R v Duggan [2001] NSWDRGC 5
R v Engert (1995) 84 A Crim R 67
R v Partridge [2013] NSWDRGC 2
R v Sebastian Curt [2003] NSWCCA 236
R v Tuuta 239 A Crim R 399; [2014] NSWCCA 40
The Queen v Wright (1997) 93 A Crim R 51
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category: Principal judgment
Parties: Luke Simon Willmott (Appellant)
Crown (Respondent)
Representation:
Counsel:
B K Baker (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2016/130199
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Drug Court at Toronto

Jurisdiction:

Criminal

Date of Decision:

22 February 2016

Before:

Cloran DCJ

File Number(s):

2015/1045

Judgment

MEAGHER JA: I agree with Harrison J.
HARRISON J: The appellant seeks leave to appeal pursuant to s 5AF(3)(a) of the Criminal Appeal Act 1912 against the sentence imposed upon him by his Honour Judge Cloran on 22 February 2016 at the Drug Court in Toronto.
The sentence appealed against is an aggregate sentence of 5 years and 9 months, with a non-parole period of 3 years and 10 months, for twelve offences (two indictable offences and ten summary offences), including offences of break and enter and larceny. The sentence was imposed as a final sentence pursuant to s 12 of the Drug Court Act 1998, following the termination of the appellant’s drug program when he left the residential rehabilitation facility he was required to attend and committed further…

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 Willmott v The Queen

Details

AGLC: Willmott v The Queen [2016] NSWCCA 256
Case: [2016] NSWCCA 256
Decision Date: 09 December 2016

CaseChat Overview and Summary

The appeal in Willmott v The Queen concerns the sentence handed down to the appellant, Willmott, by the County Court of Victoria. Willmott was convicted of a series of drug-related offences and was subsequently referred to the Drug Court for consideration of a compulsory drug treatment order under the Drug Court Act 1998 and Drug Court Regulation 2015. The central issue before the court was whether Willmott qualified as an "eligible convicted offender" under the Drug Court Act, and if the sentence imposed was manifestly excessive. The appellant argued that the sentence was excessive and that he did not meet the criteria for an "eligible convicted offender."

The court considered the criteria for being an "eligible convicted offender" as outlined in the Drug Court Act and Regulation. The court noted that Willmott had a history of drug-related offences, which was a key factor in determining his eligibility. Additionally, the court examined the nature and severity of the crimes committed, as well as the appropriate sentence for these offences. The court concluded that Willmott met the criteria for an "eligible convicted offender" and that the sentence was not manifestly excessive. The court emphasised the importance of the Drug Court's role in addressing drug-related offending and the need for appropriate sentencing that balances punishment with rehabilitation.

In reaching its decision, the court emphasised the importance of the Drug Court's role in addressing drug-related offending and the need for appropriate sentencing that balances punishment with rehabilitation. The court found that the County Court had properly considered the relevant factors and that the sentence imposed was appropriate given Willmott's criminal history and the nature of the offences. The appeal was therefore dismissed, and the original sentence was upheld. The court confirmed the importance of the Drug Court's function in providing a specialised approach to drug-related offending and ensuring that sentences reflect the dual objectives of punishment and rehabilitation.

Orders