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Windle v R

Windle v R

Case [2011] NSWCCA 277 16 December 2011

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: WINDLE v R [2011] NSWCCA 277
Hearing dates: 5 December 2011
Decision date: 16 December 2011
Before: MEAGHER JA at 1
HOEBEN J at 2
ROTHMAN J at 29
Decision:
Leave to appeal allowed.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - plea of guilty to offence of robbery - whether sentencing judge properly assessed remorse - whether sentence manifestly excessive - refusal to identify co-offenders not relevant to remorse - limitation in use of statistics to establish manifest excess.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Ayoub Omran v R; El Masri, Ali v R; [2010] NSWCCA 196
Alvares & Farache v R [2011] NSWCCA 33
Fogg v R [2011] NSWCCA 1
Furia v R [2010] NSWCCA 326
Hili v R, Jones v R [2010] HCA 45, (2010) 85 ALJR 195
Holloway v Regina [2011] NSWCCA 23
House v The King (1936) 55 CLR 499
Majid v R [2010] NSWCCA 121
Muldrock v The Queen [2011] HCA 39
Pham v R [2010] NSWCCA 208
R v F [2002] 132 A Crim R 308
Simon Hayek v R [2010] NSWCCA 139
Stewart, Wade John v R [2009] NSWCCA 152
R v Sutton [2004] NSWCCA 225
Vuni v R [2006] NSWCCA 171
R v Winchester (1992) 38 A Crim R 345
Category: Principal judgment
Parties: Rodney Ronald Windle - Applicant
Regina - Respondent Crown
Representation: K Averre - Applicant
Ms CS Bower - Respondent Crown
B Sandland, Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2010/89814
Decision under appeal

Date of Decision:

2011-02-03 00:00:00

Before:

King DCJ

File Number(s):

2010/89814

Judgment

MEAGHER JA: I agree with Hoeben J

HOEBEN J:

Offence and sentence

On 12 November 2010 the applicant pleaded guilty in the Gosford Local Court to the offence of robbery, contrary to s94 of the Crimes Act 1900 in that on 7 April 2010 at Shelly Beach he did rob Kenneth Raymond Nipsalla of $18,000. The maximum penalty for this offence is imprisonment for 14 years. When the matter came before his Honour Judge King SC on 3 February 2011 the applicant adhered to his plea of guilty.

His Honour sentenced the applicant to imprisonment with a non-parole period of 2 years and 6 months commencing 3 February 2011 and expiring 2 August 2013 with a balance of term of 1 year and 6 months expiring 2 February 2015.

The applicant seeks leave to appeal pursuant to s5(1)(c) of the Criminal Appeal Act 1912 against the severity of the sentence on the following grounds:

Ground 1: The sentencing judge erred in concluding that he was unable to find any acceptable evidence of remorse or contrition in that the judge:

(i) Failed to properly assess remorse expressed in evidence by the applicant at the proceedings on sentence.

(ii) Failed to properly consider the remorse demonstrated as a result of a…

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 Windle v R

Details

AGLC: Windle v R [2011] NSWCCA 277
Case: [2011] NSWCCA 277
Decision Date: 16 December 2011

CaseChat Overview and Summary

Windle was convicted of robbery and appealed against his sentence. The central issue before the court was whether the sentencing judge had appropriately assessed the defendant's remorse and if the sentence imposed was manifestly excessive. A secondary concern was the relevance of the defendant's refusal to identify his co-offenders to the assessment of his remorse. Additionally, the court had to consider the limitations in using statistics to determine if a sentence was manifestly excessive.

The court found that the sentencing judge had correctly assessed the defendant's remorse, taking into account various factors including the defendant's admissions, his expression of remorse during the sentencing hearing, and his behaviour post-arrest. The court held that the refusal to identify co-offenders was not pertinent to the assessment of the defendant's remorse, as it did not negate the sincerity of his expressed regret for the crime committed. Regarding the sentence's excessiveness, the court emphasised that while statistics could provide a reference point, they were not determinative. The court held that the sentence was not manifestly excessive, as it was within the range of sentences typically imposed for similar offences and took into account the circumstances of this case.

The appeal was dismissed, and the original sentence was upheld. The court concluded that the sentencing judge had properly exercised their discretion in considering the defendant's remorse and the circumstances of the offence when determining the appropriate sentence. The court also noted that the defendant's refusal to identify his co-offenders did not undermine the assessment of his remorse and that statistics, while useful, were not the sole determinant in assessing the excessiveness of a sentence.

Orders