Willmott v The Queen - [2013] NSWCCA 244

Court of Criminal Appeal

New South Wales

Case Title: Willmott v R

Medium Neutral Citation: [2013] NSWCCA 244

Hearing Date(s): 16 August 2013

Decision Date: 05 November 2013

Before: Basten JA at [1];
Adams J at [32];
Latham J at [33]

Decision:
(1) Grant leave to appeal against sentence.

(2) Dismiss the appeal.

Catchwords: CRIMINAL LAW - appeal - sentencing - murder - applicant sentenced to minimum term of 21 years imprisonment with a balance of term of seven years - whether starting point prior to discount for plea of guilty was manifestly excessive - whether sufficient weight given to findings of remorse, no premeditation and significant degree of provocation - sentence not outside appropriate range

CRIMINAL LAW - appeal - sentencing -limited use of statistics without circumstances of cases - similar cases used to establish sentence outside appropriate range - applicant distinguished by record of violent assault, extraordinary degree of violence in committing offence - sentence not manifestly excessive

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 21A, 54D, 61

Cases Cited: Hili v The Queen [2010] HCA 45; 242 CLR 520
R v Merritt [2004] NSWCCA 19; 59 NSWLR 587
Regina v Cotterill [2012] NSWSC 89
Regina v Gabor Ziha [2008] NSWSC 145
Regina v Reid [2005] NSWSC 230
Regina v Robinson [2007] NSWSC 460

Category: Principal judgment

Parties: Kelvin Robert Willmott (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:

Ms T Smith (Applicant)
Mr J Stratton (Respondent)

- Solicitors: Solicitors:

Legal Aid NSW (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): CCA 2010/340090

Decision Under Appeal

- Court / Tribunal: Supreme Court

- Before: Price J

- Date of Decision: 20 July 2012

- Citation: R v Willmott [2012] NSWSC 824

- Court File Number(s): SC 2010/340090

JUDGMENT

BASTEN JA: On 13 October 2010 the applicant, Kelvin Robert Willmott, murdered the deceased, Shane Curphey, at a caravan park on the Central Coast of New South Wales. The applicant entered a plea of guilty to murder on 6 December 2011 at Wyong Local Court. He was committed for sentence in the Supreme Court.
On 20 July 2012 Price J sentenced the applicant to a term of imprisonment comprising a non-parole period of 21 years, to commence on 13 October 2010, with a balance of term of seven years: R v Willmott [2012] NSWSC 824. The period of the sentence was therefore 28 years.
The applicant seeks leave to appeal on a single ground, namely that the sentence imposed was manifestly excessive. In oral argument, counsel for the applicant accepted that the sentence might well have been within range if imposed after a trial, but was not an appropriate sentence once account was taken of the 20% discount for the plea of guilty, which, as the sentencing judge acknowledged, indicated an undiscounted starting point for the sentence of 35 years: at [40]. In other words, the applicant submitted that the appropriate starting point should have been 28 years, rather than 35 years.

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 [2013] NSWCCA 244
Case: [2013] NSWCCA 244
Decision Date: 05 November 2013

CaseChat Overview and Summary

Willmott v The Queen involved an appeal against a sentence imposed for murder. The applicant, who had been convicted of murder, was sentenced to a minimum term of 21 years imprisonment with a balance of seven years. The appeal focused on whether the starting point of the sentence, prior to the discount for the plea of guilty, was manifestly excessive and whether sufficient weight was given to the applicant's findings of remorse, the absence of premeditation, and the significant degree of provocation. The central issue was whether the sentence imposed was outside the appropriate range.

The court considered whether the starting point of the sentence was manifestly excessive and whether the sentencing judge had appropriately balanced the mitigating factors, such as the applicant's remorse, lack of premeditation, and significant provocation. The court noted that while the applicant's sentence was higher than that in some comparable cases, those cases did not involve offenders with a similar record of violent assault or attacks of comparable ferocity. The court emphasised that the sentence must be considered in the context of the particular circumstances of the case, including the applicant's history of violence and the extraordinary degree of violence exhibited in the offence. The court concluded that the sentence was not manifestly excessive and appropriately reflected the severity of the crime.

The court held that the sentence imposed was not manifestly excessive and was within the appropriate range, considering the unique circumstances of the case. The appeal was dismissed, affirming the sentence imposed by the trial judge. The reasoning of the court was that while the sentence was more severe than some comparable cases, it was justified by the applicant's history of violent behaviour and the extraordinary violence of the crime. The court did not find the sentence to be outside the appropriate range for the offence committed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The final comparable case was Regina v Cotterill [2012] NSWSC 89. The murder occurred when the offender broke into the house of a 19 year old woman, intending to steal. The sentencing judge found that the killing was intentional, but not planned or pre-meditated. Nevertheless, it was a vicious attack. The offender was 18 years and 9 months of age at the time of the offence. McCallum J sentenced him to 22 years imprisonment with a non-parole period of 16 years. The sentence included a discount for the plea "in the order of 15%": at [19]. Conclusion While it is true that each of four cases involved a sentence of lower severity than that imposed on the applicant, none involved an offender with the applicant's record for violent assault, nor an attack of quite the ferocity of that undertaken by the applicant. They do not demonstrate that the sentence imposed by Price J was manifestly excessive. Accordingly, the appeal must be dismissed. ADAMS J: I agree with Basten JA. LATHAM J: I agree with Basten JA.**********

Ratio Decidendi

Legal Principle Established

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Case Title:	Willmott v R
Medium Neutral Citation:	[2013] NSWCCA 244
Hearing Date(s):	16 August 2013
Decision Date:	05 November 2013
Before:	Basten JA at [1]; Adams J at [32]; Latham J at [33]
Decision:	(1) Grant leave to appeal against sentence. (2) Dismiss the appeal.
Catchwords:	CRIMINAL LAW - appeal - sentencing - murder - applicant sentenced to minimum term of 21 years imprisonment with a balance of term of seven years - whether starting point prior to discount for plea of guilty was manifestly excessive - whether sufficient weight given to findings of remorse, no premeditation and significant degree of provocation - sentence not outside appropriate range CRIMINAL LAW - appeal - sentencing -limited use of statistics without circumstances of cases - similar cases used to establish sentence outside appropriate range - applicant distinguished by record of violent assault, extraordinary degree of violence in committing offence - sentence not manifestly excessive
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 21A, 54D, 61
Cases Cited:	Hili v The Queen [2010] HCA 45; 242 CLR 520 R v Merritt [2004] NSWCCA 19; 59 NSWLR 587 Regina v Cotterill [2012] NSWSC 89 Regina v Gabor Ziha [2008] NSWSC 145 Regina v Reid [2005] NSWSC 230 Regina v Robinson [2007] NSWSC 460
Category:	Principal judgment
Parties:	Kelvin Robert Willmott (Applicant) Regina (Respondent)
Representation
- Counsel:	Counsel: Ms T Smith (Applicant) Mr J Stratton (Respondent)
- Solicitors:	Solicitors: Legal Aid NSW (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent)
File Number(s):	CCA 2010/340090
Decision Under Appeal
- Court / Tribunal:	Supreme Court
- Before:	Price J
- Date of Decision:	20 July 2012
- Citation:	R v Willmott [2012] NSWSC 824
- Court File Number(s):	SC 2010/340090