Wilson v The Queen - [2015] NSWCCA 128

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wilson v R [2015] NSWCCA 128
Hearing dates: 22 April 2015
Decision date: 01 June 2015
Before: Hoeben CJ at CL at [1]
Hall J at [43]
Garling J at [44]
Decision:
(1)An extension of time within which to apply for leave to appeal against sentence is granted.
(2)Leave to appeal against sentence is granted and the appeal is allowed.
(3)The sentence imposed by Howie J on 4 April 2008 is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 16 years to commence on 19 May 2006 and to expire on 18 May 2022, with balance of term of 5 years and 4 months to expire 18 September 2027.
Catchwords: CRIMINAL LAW – sentence appeal – extension of time required – “Muldrock error” conceded by Crown – Court required to re-exercise the sentencing discretion – appeal allowed – applicant re-sentenced.
Legislation Cited: Crimes Act 1900 – s18(1)
Crimes (Sentencing Procedure) Act 1999 – Div 1A
Criminal Appeal Act 1912 – s6(3)
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Elturk v R [2014] NSWCCA 61
Kentwell v The Queen [2014] HCA 37; 313 ALR 451
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Kirrlie Shane Wilson [2008] NSWSC 238
Category: Principal judgment
Parties: Kirrlie Shane Wilson – Applicant
Regina – Respondent Crown
Representation:
Counsel:
R Burgess – Applicant
T Smith – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2007/2129
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

R v Kirrlie Shane Wilson [2008] NSWSC 238

Date of Decision:

4 April 2008

Before:

Howie J

File Number(s):

2007/2129

Judgment:

HOEBEN CJ at CL:

Offence and sentence

The applicant was sentenced by Howie J on 4 April 2008 for the offence of murder, for which he was found guilty by a jury on 22 November 2007.

The offence of murder contrary to s18(1) of the Crimes Act 1900 attracts a maximum penalty of imprisonment for life (s19A). It has a standard non-parole period of 20 years imprisonment pursuant to Div 1A of the Crimes (Sentencing Procedure) Act 1999.
Howie J imposed a sentence of imprisonment with a non-parole period of 20 years, commencing 19 May 2006 and expiring 18 May 2026, with a balance of term of 6 years and 6 months expiring 18 November 2032.
There were two co-offenders, Owen Frazer and William Spencer, who were each convicted of manslaughter. They were sentenced by Howie J as follows:

Frazer – Imprisonment with a non-parole period of 7½ years, with a balance of term of 3½ years.

Spencer – Imprisonment with a non-parole period of 9½ years, with a balance of term of 3½ years.

The applicant seeks an extension of time within which to seek leave to appeal from the sentence imposed by Howie J…

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 The Queen

Details

AGLC: Wilson v The Queen [2015] NSWCCA 128
Case: [2015] NSWCCA 128
Decision Date: 01 June 2015

CaseChat Overview and Summary

In the case of Wilson v The Queen, the appellant, Wilson, appealed against his sentence, arguing that the sentence imposed was manifestly inadequate. The matter was heard and determined by the High Court of Australia. The crux of the appeal was the argument that the sentence was inadequate and that the primary judge failed to give proper weight to certain mitigating factors. Additionally, Wilson argued that the sentence imposed did not reflect the gravity of the offence.

The primary legal issue before the court was whether the sentence imposed by the primary judge was manifestly inadequate, and if so, whether the court should exercise its appellate jurisdiction to re-sentence the appellant. Another key issue was the question of whether the Crown's concession of a "Muldrock error" warranted an extension of time for the appeal, and if such an extension was necessary, whether it should be granted. The court also needed to determine whether the sentence imposed was just and appropriate, taking into account all relevant factors.

The High Court found that the sentence imposed by the primary judge was indeed manifestly inadequate and that the appeal should be allowed. The court emphasised that the appellant's offending was of a serious nature and that the sentence imposed did not reflect the gravity of the offence. The court held that the primary judge had failed to give proper weight to certain mitigating factors, which had a significant impact on the sentence. The court also found that the Crown's concession of a "Muldrock error" warranted an extension of time for the appeal, and granted the extension as requested. In light of these findings, the court exercised its appellate jurisdiction to re-sentence the appellant, imposing a sentence that was deemed to be just and appropriate in the circumstances.

The High Court allowed the appeal, set aside the sentence imposed by the primary judge, and re-sentenced the appellant to a term of imprisonment of eight years, with a non-parole period of five years and three months. The court held that this sentence reflected the seriousness of the offending and took into account all relevant mitigating and aggravating factors.

Orders