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Wilson v The Queen

Wilson v The Queen

Case [2022] VSCA 2 21 January 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0226

RICKY WILSON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 January 2022
DATE OF JUDGMENT:	21 January 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 2
JUDGMENT APPEALED FROM:	[2020] VCC 148 (Judge Hogan)

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CRIMINAL LAW — Appeal — Sentence — Application for extension of time within which to file notice of leave to appeal — Common assault and intentionally causing injury — Applicant 33 years old with prior and subsequent convictions — Whether judge infringed the principle in R v De Simoni — Whether judge infringed principle of totality — Whether non-parole period manifestly excessive — Total effective sentence and non-parole period within bounds of sound discretionary judgment — Application for extension of time refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr M Reardon	Victoria Legal Aid
For the Respondent:	Ms S Clancy	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA:

Introduction

On 11 February 2020, the applicant pleaded guilty before Judge Hogan in the County Court to common assault[1] and intentionally causing injury.[2] Following a plea, on 26 February 2020 Judge Hogan sentenced the applicant to four years and six months’ imprisonment on charge 2, and to nine months’ imprisonment on charge 1, six months of which was ordered to be served cumulatively upon the sentence on charge 2. The total effective sentence was thus five years’ imprisonment, upon which the judge fixed a non-parole period of three years and six months.[3] Nine months of the sentence thus imposed was ordered to be served cumulatively with the sentence the applicant was then undergoing.
[1]Common assault is a crime at common law. By virtue of s 320 of the Crimes Act 1958, the maximum sentence is five years’ imprisonment
[2]Crimes Act 1958, s 18. The maximum sentence is 10 years’ imprisonment.
[3]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the applicant’s guilty pleas. She would have imposed a total effective sentence of six years and six months’ imprisonment, with a non-parole period of four years and 10 months.

Given he is out of time,[4] the applicant seeks an extension of time within which to file a notice of application for leave to appeal against sentence. If granted an extension of time, the applicant wishes to seek leave to appeal on three grounds that contend that the judge:

1    … breached the rule enunciated in R v De Simoni.
2    … paid insufficient regard to the principle of totality.
3    … erred by fixing a manifestly excessive non-parole period.

[4]Section 275(1) of the Criminal Procedure Act 2009 requires a notice of application for leave to appeal against conviction to be filed ‘within 28 days after the day on which the person is sentenced or any extension of that period granted under section 313’. It was not sought to file the relevant notice until early…

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 [2022] VSCA 2
Case: [2022] VSCA 2
Decision Date: 21 January 2022

CaseChat Overview and Summary

The applicant, Wilson, appealed against his sentence for common assault and intentionally causing injury, arguing that the trial judge's sentence infringed the principles set out in R v De Simoni and the principle of totality, and that the non-parole period was manifestly excessive. The High Court of Australia considered the application for an extension of time to file a notice of appeal. The central issue was whether the trial judge had properly applied the principles in R v De Simoni and the principle of totality, and whether the non-parole period was manifestly excessive.

The High Court noted that Wilson, aged 33 at the time of sentencing, had a history of prior and subsequent convictions. The Court found that the trial judge had adequately considered the principles in R v De Simoni and the principle of totality, ensuring that the total effective sentence and the non-parole period were within the bounds of sound discretionary judgment. The Court held that the sentence imposed was neither manifestly excessive nor an abuse of the trial judge's discretion, and therefore, the application for an extension of time was refused.

Given the appropriate consideration of the relevant sentencing principles and the totality of the circumstances, the Court concluded that the sentence was not manifestly excessive. The Court held that there was no basis to grant an extension of time for filing the notice of appeal. The application was dismissed, and the sentence remained unchanged.

Orders