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Wilson v R

Wilson v R

Case [2017] NSWCCA 41 17 March 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wilson v R [2017] NSWCCA 41
Hearing dates: 16 March 2017
Date of orders: 16 March 2017
Decision date: 17 March 2017
Before: Hoeben CJ at CL at [1];
Garling J at [2];
Beech-Jones J at [3]
Decision:
(1)   Leave to appeal be granted;
(2)   Appeal allowed;
(3)   Set aside the sentence imposed by the District Court on 15 September 2015;
(4)   In lieu thereof order that:

   (a)   The Applicant be sentenced to a term of imprisonment of 3 years commencing 15 September 2015 and expiring on 14 September 2018 with a non‑parole period of 18 months and two days commencing 15 September 2015 and expiring on 16 March 2017;
    (b)   Direct the Applicant be released on the expiry of his non‑parole period.
Catchwords: SENTENCE APPEAL – indecent assault committed in 1982 – victim either 8 or 9 years old – indecent assault committed in 1985 on same victim included on “Form 1” – application of historical sentencing practices – fixing of non‑parole periods – sentencing judge incorrectly advised that historical practice was to fix parole period between one third and one half of total sentence – historical practice was to fix non parole period between one third and one half of total sentence – error established – Applicant resentenced.
Legislation Cited: Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
AJB v Regina [2007] NSWCCA 51
Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
Betts v The Queen [2016] HCA 25
Bradbery v Regina [2008] NSWCCA 93
Bugmy v The Queen [1990] HCA 18; 169 CLR 525
CPW v R [2009] 105
Denham v R [2016] NSWCCA 309
Griffiths v The Queen (1989) 167 CLR 372
Henderson v R [2016] NSWCCA 8
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
MPB v R [2013] NSWCCA 213
R v Blanco [1999] NSWCCA 121
R v Smith (1987) 44 SASR 587
Regina v Badanjak [2004] NSWCCA 395
Regina v Fidow [2004] NSWCCA 172
Regina v M A [2004] NSWCCA 92
Regina v MJR [2002] NSWCCA 129; 54 NSWLR 368
Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Category: Principal judgment
Parties: Samuel James Wilson (Applicant)
Regina (Crown)
Representation:
Counsel:
R Burgess (Applicant)
NL Williams (Crown)
Solicitors:
Stidwill Solicitors (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/151458
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

15 September 2015

Before:

Culver DCJ

File Number(s):

2013/151458

Judgment

HOEBEN CJ at CL: I agree with the reasons of Beech-Jones J.
GARLING J: The reasons of Beech-Jones J are those which persuaded me to agree with the orders made by the Court on 16 March 2017.
BEECH-JONES J: This is…

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 Wilson v R

Details

AGLC: Wilson v R [2017] NSWCCA 41
Case: [2017] NSWCCA 41
Decision Date: 17 March 2017

CaseChat Overview and Summary

Wilson appealed against his sentence for a series of indecent assaults committed against a child victim. The incidents took place in 1982 and 1985, when the victim was aged between 8 and 9 years old. The case was heard in the High Court of Australia, which was asked to review the appropriateness of the non-parole period imposed by the sentencing judge. The primary issue before the court was whether the sentencing judge had been correctly informed about historical sentencing practices in relation to the non-parole period. Specifically, the court needed to determine if the sentencing judge had been incorrectly advised that the historical practice was to fix the parole period between one third and one half of the total sentence, rather than the non-parole period.

The court found that the sentencing judge had indeed been incorrectly advised about historical sentencing practices. The historical practice was to fix the non-parole period between one third and one half of the total sentence, not the parole period. This error had led to an incorrect application of the sentencing principles in this case. The court concluded that because of this error, the applicant should be resentenced to reflect the correct historical practice. The court's decision was based on the principle that accurate legal advice and understanding are crucial for the proper administration of justice. By correcting the error in the sentencing process, the court aimed to ensure that the sentence imposed was appropriate and consistent with historical sentencing practices.

The High Court quashed the sentence imposed by the sentencing judge and ordered that the applicant be resentenced. The court did not specify the new non-parole period, leaving that determination to the sentencing judge on rehearing. The court's decision underscores the importance of accurate legal advice in sentencing matters and the need for courts to apply sentencing principles correctly. The outcome of this case highlights the court's commitment to ensuring that sentences are imposed in a manner that is consistent with legal principles and historical practices.

Orders