Wingco v The Queen - [2018] NSWCCA 187

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wingco v R [2018] NSWCCA 187
Hearing dates: 1 August 2018
Decision date: 27 August 2018
Before: Gleeson JA at [1]
R A Hulme J at [39]
Button J at [40]
Decision:
Application for leave to appeal against sentence is refused.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – where applicant pleaded guilty to eight offences of stealing from the person – whether additional evidence should be admitted on appeal – where applicant had completed two courses while in custody – whether sentencing judge erred in failing to consider matters occurring after sentence – whether failure to consider applicant’s medical condition – whether failure to consider family circumstances of applicant - where brother’s medical condition not referred to at sentencing hearing – where no evidence of the brother’s medical condition
Legislation Cited: Crimes Act 1900 (NSW), ss 94, 193C(1), 527C(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 214A(1)(g)
Cases Cited: Khoury v R [2011] NSWCCA 118
R v Lanham [1970] 2 NSWR 217
Tran v R [2014] NSWCCA 32
Category: Sentence
Parties: Leny Wingco (Applicant)
Regina (Respondent)
Representation:
Counsel:
Applicant (in person)
Ms H Roberts (Crown Prosecutor) (Respondent)
Solicitors:
Applicant (in person)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2015/192287
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

13 October 2017

Before:

Girdham SC DCJ

File Number(s):

2015/192287

Judgment

GLEESON JA: The applicant, Ms Leny Wingco, seeks leave to appeal against the sentence imposed on her by the District Court on 13 October 2017 following her plea of guilty to eight offences of stealing from the person. Pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the applicant asked for seven further offences listed on a Form 1 be taken into account. Four of those offences related to goods in custody and three of the offences related to dealing with property suspected to be the proceeds of crime.
The offence of stealing any chattel, money or valuable security from the person of another carries a maximum penalty of imprisonment for 14 years: s 94, Crimes Act 1900 (NSW). There is no standard non-parole period.
The offence of having goods in custody reasonably suspected of being stolen or otherwise unlawfully obtained carries a maximum penalty of imprisonment for 6 months, or a fine of 5 penalty units, or both: s 527C(1)(b), Crimes Act.
The offence of dealing with property reasonably suspected to be the proceeds of crime, where the value of the property is $100,000 or more, carries a maximum penalty of imprisonment for 5 years: s 193C(1), Crimes Act. Where the value of the property is less than $100,000 this offence carries a maximum penalty of imprisonment for 3 years: s 193C(2).
The sentencing judge (Girdham SC DCJ) sentenced the applicant to an aggregate sentence of 3 years 4…

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 Wingco v The Queen

Details

AGLC: Wingco v The Queen [2018] NSWCCA 187
Case: [2018] NSWCCA 187
Decision Date: 27 August 2018

CaseChat Overview and Summary

In the matter of Wingco v The Queen, the applicant sought leave to appeal against the sentence imposed after pleading guilty to eight counts of stealing from the person. The primary focus of the appeal was the sentence's severity and whether the trial judge should have considered additional evidence not presented during the sentencing hearing. This evidence included the applicant's completion of two courses while in custody, and the potential relevance of family circumstances, specifically the health condition of the applicant's brother, which had not been mentioned during sentencing.

The court was required to determine if the sentencing judge erred by failing to consider post-sentencing developments, including the applicant's rehabilitation efforts through education while in custody. Additionally, the appeal questioned whether the trial judge appropriately considered the applicant's medical condition and family circumstances, particularly the brother's health condition, which had not been addressed during the original sentencing hearing. The court also had to consider whether the absence of evidence regarding the brother's condition constituted a significant oversight in the sentencing process.

The court found that the application for leave to appeal was not well-founded, primarily because the evidence presented did not sufficiently demonstrate that the trial judge had overlooked any significant mitigating factors. The court held that the trial judge had made adequate consideration of the relevant matters, and the additional evidence did not materially affect the sentence imposed. The court was not persuaded that the absence of evidence regarding the brother's medical condition represented a substantial error, as no evidence had been provided to substantiate the claim. Consequently, the appeal was dismissed, and no leave to appeal was granted.

Orders