Wilson v The Queen; Barrie v The Queen - [2014] NSWCCA 150

Court of Criminal Appeal

New South Wales

Case Title: Wilson v R; Barrie v R

Medium Neutral Citation: [2014] NSWCCA 150

Hearing Date(s): 12 March 2014

Decision Date: 13 August 2014

Before: Leeming JA at [1];
Button J at [2];
RS Hulme AJ at [3]

Decision:
In Mr Wilson's appeal, 2011/46417:
(i) Grant leave to appeal against sentence;
(ii) Allow the appeal;
(iii) Quash the sentence imposed by Charteris DCJ on 11 October 2012.
(iv) In respect of the offence of, on 14 September 2010, being armed with dangerous weapons and being in company, robbing Desmond Clarken of money the property of Vertigo Pty Ltd trading as the Petersham Inn Hotel, sentence him to imprisonment for a non-parole period of 5 years and 3 months commencing on 1 April 2011 and a balance of term of 2 years and 3 months commencing on 1 July 2016.
(v) Record as the date when it appears to the Court that Mr Wilson shall be eligible for parole, 1 July 2016.

In Mr Barrie's appeal, 2010/346956:
(i) Grant leave to appeal against sentence;
(ii) Allow the appeal;
(iii) Quash the sentences imposed by Charteris DCJ on 11 October 2012.
(iv) In respect of the offence of, on 25 August 2010, whilst armed with a dangerous weapon robbing Patricia Tselepi of property of the Newington Inn, sentence him to imprisonment for a non-parole period of 4 years and 6 months commencing on 18 December 2010, together with a further term of 3 years commencing on 18 June 2015.
(v) In respect of the offence of, on 14 September 2010, whilst armed with a dangerous weapon robbing Desmond Clarken of property of Petersham Inn, sentence him to imprisonment for a non-parole period of 4 years and 9 months commencing on 18 September 2012, together with a further term of 3 years and 3 months commencing on 18 June 2017.
(vi) Record as the date when it appears to the Court that Mr Barrie shall be eligible for parole, 18 June 2017.

Catchwords: CRIMINAL LAW - leave to appeal against sentence - robbery whilst armed with a dangerous weapon and in company - whether applicants had justifiable sense of grievance given the disparity between their sentences and the sentence imposed on a co-offender - where the applicant had served time on bail in residential rehabilitation facilities - where the applicant had not complied with some of the bail conditions imposed - whether the sentencing judge erred in failing to take into account the time served on bail given the restrictive nature of the bail conditions - whether the sentencing judge failed to give appropriate weight to the subjective circumstances of the applicant - whether the sentencing judge had proper regard to the totality principle in accumulating the sentences imposed - consideration of subjective circumstances of each co-offender - consideration of Form 1 offences taken into account - whether sentences manifestly excessive

Legislation Cited: Crimes Act 1900 (NSW), s 97(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss…

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.

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Details

Case: [2014] NSWCCA 150
Decision Date: 13 August 2014

CaseChat Overview and Summary

In the High Court of Australia, Wilson and Barrie appealed against their sentences for robbery committed in company while armed with a dangerous weapon. The applicants argued that the disparity between their sentences and that of their co-offenders was unjust, particularly given their efforts in rehabilitation. The court was tasked with determining whether the sentencing judge erred in not considering the time the applicants spent on bail in rehabilitation facilities, the compliance with bail conditions, and whether the sentences imposed were manifestly excessive.

The central legal issues were whether the sentencing judge failed to appropriately consider the applicants' subjective circumstances, the time spent on bail, and the totality principle in sentencing. The applicants contended that the judge did not sufficiently weigh their efforts in rehabilitation and the restrictive nature of their bail conditions. Additionally, they argued that the sentences were disproportionate compared to those of their co-offenders.

The High Court considered the sentencing principles, the subjective circumstances of each applicant, and the compliance with bail conditions. The court concluded that the sentencing judge had properly regarded the totality principle and the individual circumstances of each applicant. While the applicants had made efforts in rehabilitation, their non-compliance with some bail conditions and the disparity in sentences did not warrant a reduction. The court found no error in the sentencing and dismissed the appeals.

Orders