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Wilson v R

Wilson v R

Case [2008] NSWCCA 245 20 October 2008

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New South Wales
Court of Criminal Appeal

CITATION: Wilson v R [2008] NSWCCA 245

HEARING DATE(S): 26 September 2008

JUDGMENT DATE:
20 October 2008

JUDGMENT OF: Beazley JA at 1; Hislop J at 2; Price J at 3

DECISION: Leave to appeal granted. Quash the sentence imposed in the District Court for the offence contrary to s97(1) of the Crimes Act. Quash the parole order and conditions of parole made by the sentencing judge. For the offence contrary to s97(1) of the Crimes Act (including the matter on the Form 1) sentence the applicant to imprisonment with a non parole period of 4 years 6 months commencing on 3 February 2007 and expiring on 2 August 2011 with a balance of term of 2 years commencing on 3 August 2011 and expiring on 2 August 2013. The earliest date upon which the applicant will be eligible for release to parole is 2 August 2011.

LEGISLATION CITED: Crimes Act, 1900
Road Transport (Driver Licensing) Act, 1998
Criminal Procedure Act, 1986
Crimes (Sentencing Procedure) Act, 1999

CASES CITED: House v The King (1936) 55 CLR 499
R v Cramp [2004] NSWCCA 264
R v Fidow [2004] NSWCCA 172
Webster v R [2006] NSWCCA 346
Postiglione v The Queen (1997) 189 CLR 295
R v Kollas & Mitchell [2002] NSWCCA 491
R v Kairouz [2005] NSWCCA 247

PARTIES: Darren Brian Wilson v R

FILE NUMBER(S): CCA 2007/3027

COUNSEL: C. Loukas (Applicant)
P.G. Ingram (Crown)

SOLICITORS: Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/0020

LOWER COURT JUDICIAL OFFICER: Bennett DCJ

LOWER COURT DATE OF DECISION: 19 April 2007

2007/3027

BEAZLEY JA
HISLOP J
PRICE J
20 October 2008

Darren Brian Wilson v R

Judgment

1 BEAZLEY JA: I agree with Price J.

2 HISLOP J: I agree with Price J.

3 PRICE J: Darren Brian Wilson, the applicant, seeks leave to appeal against the severity of the sentence imposed upon him in the District Court at Parramatta on 19 April 2007 by Bennett DCJ (the sentencing Judge).

4 The applicant had adhered in the District Court to a plea of guilty entered in the Local Court to a charge that he on 31 October 2006 at Summer Hill did rob Rachel Wong, Andries Sadiq and Priya Kataria of certain property, to wit a sum of Australian currency the property of the Commonwealth Bank of Australia whilst being armed with an offensive weapon, to wit a shortened non-functioning shotgun contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for such an offence is 20 years imprisonment.

5 A plea of guilt had also been entered in the Local Court to a charge that he on 3 November 2006 without the consent of Kwang Jin Seo, the owner of a conveyance, to wit a 1990 Ford Falcon station wagon registered number AWR-17U, did take and drive the said conveyance. The applicant in the District Court adhered to his plea…

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 [2008] NSWCCA 245
Case: [2008] NSWCCA 245
Decision Date: 20 October 2008

CaseChat Overview and Summary

In the case of Wilson v R, the appellant was convicted of robbery and armed with a shortened non-functioning shotgun during the offence. The appeal centred on the question of whether the weapon in question constituted an "offensive weapon" within the meaning of section 97(1) of the Crimes Act 1900. The court was required to interpret the statutory term "offensive weapon" and assess whether the weapon's non-functionality and the circumstances of its use could still classify it as such. The appellant argued that because the shotgun was not functioning, it could not be considered an offensive weapon, whereas the respondent contended that the weapon's appearance and the context in which it was used were sufficient to classify it as an offensive weapon.

The court examined the statutory language of section 97(1) of the Crimes Act 1900, which does not explicitly define "offensive weapon" but includes it within a list of prohibited items. The court considered the ordinary meaning of the term, the purpose of the legislation, and the context in which the weapon was used. The court held that the non-functioning nature of the weapon did not preclude it from being considered an offensive weapon, as the statutory language does not require the weapon to be functional to be classified as such. The court found that the weapon's appearance and the appellant's use of it in a threatening manner were sufficient to classify it as an offensive weapon under the Act.

The appeal was dismissed, and the appellant's conviction and sentence were upheld. The court found that the weapon, despite its non-functioning state, could still be considered an offensive weapon due to its appearance and the manner in which it was used. The court's interpretation of the statutory language and the contextual analysis led to the conclusion that the weapon met the criteria for an offensive weapon under the Crimes Act 1900. The appellant's conviction for robbery with an offensive weapon was therefore affirmed.

Orders