Wilson v The Queen - [2009] NSWCCA 73

New South Wales
Court of Criminal Appeal

CITATION: Wilson v R [2009] NSWCCA 73

HEARING DATE(S): 23/03/2009

JUDGMENT DATE:
23 March 2009

JUDGMENT OF: McClellan CJatCL at 15; Buddin J at 1; Rothman J at 16

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - maliciously inflicting grievous bodily harm - whether aggravating factor was an inherent characteristic of offence

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED: Elyard v R [2006] NSWCCA 43
R v Youkhana [2004] NSWCCA 412
Sayin v R [2008] NSWCCA 307

PARTIES: Quentin Keith Wilson (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/10189

COUNSEL: M Johnston (Applicant)
M Grogan (Crown)

SOLICITORS: SE O'Connor (Applicant)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/10189

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 04/06/2008

2007/10189

McCLELLAN CJ at CL
BUDDIN J
ROTHMAN J
MONDAY 23 MARCH 2009

QUENTIN KEITH WILSON v R

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against the sentence imposed upon him in the District Court following his plea of guilty to a charge of maliciously inflicting grievous bodily harm. The maximum penalty for that offence is imprisonment for 7 years. The applicant also requested that a charge of common assault be taken into account on sentencing. A total term of imprisonment of 2 years 3 months with a non-parole period of 12 months was imposed which the applicant was ordered to serve by way of periodic detention.

2 As there is no dispute about the facts, they can be briefly stated. On the evening in question the victim was socialising with three friends at the Billinudgel Hotel. They had been there consuming alcohol for a couple of hours when the applicant approached their table and struck up a conversation with them. He was clearly intoxicated and as he continued drinking he dribbled beer over his face and began spitting on the ground. When one of the victim’s companions rebuked the applicant, the applicant punched the victim to the left side of his face. At the time the applicant was holding a schooner glass in the hand with which he punched the victim. The glass cut through the full thickness of the victim’s mouth to his cheek. The wound bled profusely. The applicant then grabbed hold of the victim with his other hand. He then proceeded to punch him numerous times to his face and upper body with a clenched fist. Another of the victim’s friends, a man named David Speakman, pulled the applicant off the victim. The applicant then threw a punch at Mr Speakman who managed to avoid it. It was that conduct which constituted the offence of common assault. Security staff then removed the applicant from the area. As the victim’s friends were accompanying him to a car in which they intended taking him to hospital, the applicant approached the group from behind. He ran at Mr Speakman…

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 [2009] NSWCCA 73
Case: [2009] NSWCCA 73
Decision Date: 23 March 2009

CaseChat Overview and Summary

The case of Wilson v The Queen concerned an appeal by the defendant, Wilson, against his sentence for maliciously inflicting grievous bodily harm. The matter was heard in the High Court of Australia, which had the task of determining whether an aggravating factor in the sentencing of Wilson was an inherent characteristic of the offence itself. The Crown argued that the aggravating factor, namely the use of a knife, was not an inherent characteristic of the offence of maliciously inflicting grievous bodily harm, and therefore should be considered in determining the sentence.

The central legal issue before the court was whether the use of a weapon as an aggravating factor in sentencing should be considered an inherent characteristic of the offence of maliciously inflicting grievous bodily harm, or if it should be treated as a separate factor in determining the appropriate sentence. The court had to weigh the principles of sentencing and the legislative intent behind the relevant provisions in the Crimes Act.

The High Court concluded that the use of a weapon, such as a knife, was not an inherent characteristic of the offence of maliciously inflicting grievous bodily harm. Instead, it was a separate aggravating factor that should be considered in determining the appropriate sentence. The court based its decision on the principle that the sentence should reflect the full culpability of the offender and the need to deter similar offences in the future. The court also took into account the legislative intent behind the Crimes Act, which aimed to provide a balanced approach to sentencing that considered both the seriousness of the offence and the circumstances in which it was committed.

As a result of the court's decision, the appeal was allowed, and the case was remitted to the lower court for reconsideration of the sentence. The lower court was directed to take into account the appropriate weight to be given to the use of a knife as an aggravating factor in sentencing Wilson for the offence of maliciously inflicting grievous bodily harm.

Orders