Wilmot v R - [2007] NSWCCA 278

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 J
Friday 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,…

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 Wilmot v R

Details

AGLC: Wilmot v R [2007] NSWCCA 278
Case: [2007] NSWCCA 278
Decision Date: 28 September 2007

CaseChat Overview and Summary

The case of Wilmot v R involved an appeal against sentences imposed by the District Court of New South Wales. The appellant, Wilmot, was convicted of malicious wounding with intent to do grievous bodily harm and using an offensive weapon with intent to prevent lawful apprehension. The appellant sought leave to appeal against the sentences imposed by the District Court, which were eleven-and-a-half years' imprisonment for the first charge and three years for the second charge, with an effective non-parole period of seven-and-a-half years.

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

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, a pair of gloves, a ski mask and ski goggles. He drove to the victim’s home at Punchbowl and waited for him to leave. The victim left in his car, accompanied by his wife and the two children, and drove to his place of employment. The applicant followed them. Having arrived there, the victim got out of his car, and the applicant flashed his headlights, alighted from his car and ran towards the victim. He was wearing the ski mask and goggles and held a pocket knife in each hand. He said, “I am going to kill you,” and stabbed the victim a number of times. He then ran back to his car and drove off. The victim suffered a number of stab wounds, to which I shall refer shortly. His wife and other bystanders went to his assistance, and Mrs Mostafa’s daughter told her that she recognised the applicant as the offender. It was this conduct which gave rise to the first charge, maliciously inflicting grievous bodily harm with intent. The applicant drove to a location at Terrey Hills, where he buried the knives, gloves, ski mask and goggles in a dry creek bed. He then drove to Palm Beach, where he took off the clothes he was wearing, which were bloodstained, and donned a wet suit. He buried the clothing under a rock, entered the surf and washed any remaining blood from his body. He drove to Avalon, where he bought some fresh clothes, and then returned home. He saw a marked police car on the driveway of the home, and he drove to a nearby park. He was followed there by Highway Patrol police. He got out of his car, brandishing a tomahawk, which he had been carrying in the car for some time. He held the tomahawk above his head in a threatening manner and said to the police, “You’re going to have to shoot me because I’m not going to gaol.” The police could not arrest him because there were a number of members of the public, including children, in the park. They tried to use capsicum spray, but he escaped into an area of the Royal National Park. This behaviour was the basis of the second charge, using an offensive weapon with intent to prevent lawful apprehension.

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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