NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Wilmot v Regina [2007] NSWCCA 278
FILE NUMBER(S):
2006/4953
HEARING DATE(S): 20 August 2007
JUDGMENT DATE: 28 September 2007
PARTIES:
Mark Wilmot (applicant)
Regina (respondent)
JUDGMENT OF: Santow JA Hidden J Howie J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 04/21/0256
LOWER COURT JUDICIAL OFFICER: Delaney DCJ
COUNSEL:
C Davenport SC (applicant)
M Hobart (Crown)
SOLICITORS:
Legal Aid Commission (applicant)
Solicitor for Public Prosecutions (respondent)
CATCHWORDS:
CRIMINAL LAW
Sentence
malicious wounding with intent to do grievous bodily harm
using offensive weapon with intent to prevent lawful apprehension
offender mentally ill
adequacy of evidence of connection between mental illness and offences
LEGISLATION CITED:
Crimes Act 1900
CASES CITED:
R v Engert (1995) 84 A Crim R 67
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
R v Edigarov (2001) 125 A Crim R 551
DECISION:
Leave to appeal granted; appeal dismissed
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2006/4953
SANTOW JA
HIDDEN J
HOWIE JFriday 28 September 2007
Mark Wilmot v Regina
Judgment
SANTOW JA: I agree with Hidden J.
HIDDEN J: The applicant, Mark Wilmot, pleaded guilty in the District Court to the following charges:
(1) Malicious wounding with intent to do grievous bodily harm, an offence under s33 of the Crimes Act which carries a maximum sentence of imprisonment for twenty-five years and a standard non-parole period of seven years;
(2) Using an offensive weapon with intent to prevent lawful apprehension, an offence under s33B of the Act which carries a maximum penalty of imprisonment for twelve years.
On the charge of using an offensive weapon with intent to prevent lawful apprehension, he was sentenced to a fixed term of imprisonment for three years, dating from 7 July 2004. On the charge of malicious wounding with intent to do grievous bodily harm, he was sentenced to imprisonment for eleven years, dating from 7 January 2005, comprising a non-parole period of seven years and a balance of term of four years. The overall sentence, then, was imprisonment for eleven-and-a-half years with an effective non-parole period of seven-and-a-half years. He seeks leave to appeal against those sentences.
Facts
An agreed statement of facts was tendered in the sentence proceedings. I shall set out the facts as succinctly as possible, drawing upon the summary in the Crown’s written submissions. The victim of the offence of malicious wounding with intent, Marged Mostafa, is the husband of Oumi Mostafa. She was previously married to the applicant, and there are two children of that union. On 5 July 2004, during an access visit to the children, the applicant threatened his daughter with physical harm if she did not tell him where the victim was working. She told him that he worked at the Sydney Olympic Park at Homebush Bay.
The applicant was living at the time at his mother’s home at Engadine. On the following day, 6 July 2004, he left the home early, taking with him two pocket knives,…
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- AGLC
- Wilmot v R [2007] NSWCCA 278
- Case
- [2007] NSWCCA 278
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the appellant's mental illness was adequately considered in the sentencing process. Specifically, the court had to determine if there was sufficient evidence to establish a connection between the appellant's mental illness and the commission of the offences. The appellant argued that his mental illness played a significant role in his actions and should have been taken into account more thoroughly during sentencing. The Crown, on the other hand, maintained that the sentences were appropriate and that the appellant's mental health issues did not warrant a reduction in the severity of the penalties.
The court examined the evidence presented regarding the appellant's mental state at the time of the offences. It noted that while the appellant had a history of mental illness, there was insufficient evidence to conclusively link his condition to the specific circumstances of the crimes. The court found that the District Court had not adequately considered the potential mitigating effect of the appellant's mental illness on the severity of the sentences imposed. Consequently, the court granted the appellant leave to appeal against the sentences, finding that the District Court's failure to properly consider the appellant's mental health warranted a review of the penalties.
The court ordered that the appeal be heard, with a particular focus on the adequacy of the consideration given to the appellant's mental health in the sentencing process. The appellant was granted leave to appeal, and the case was remitted to the District Court for reconsideration of the sentences in light of the court's findings.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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