Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Winter v R [2011] NSWCCA 59 Hearing dates: 14 March 2011 Decision date: 28 March 2011 Before: McClellan CJ at CL at 1
Blanch J at 2
Hoeben J at 25Decision: 1 Grant leave to appeal
2 Dismiss the appeal
Catchwords: Criminal law - perverting the course of justice - effect of incarceration on third parties Legislation Cited: Crimes Act 1900 - s319
Criminal Appeal Act 1912 - s6(3)Cases Cited: Einfeld v Regina [2010] NSWCCA 87
R v Bednarz NSWCCA unreported 13 December 2000
R v Dib NSWCCA unreported 13 September 1991
R v Edwards (1996) 90 A Crim R 510
R v Hakim CCA 5 September 1996 unreported
Regina v Marinellis [2001] NSWCCA 328
R v Purtell [2001] NSWCCA 21
R v Taouk (1992) 65 A Crim R 387Category: Principal judgment Parties: Roslyn Ann Winter (Applicant)
Regina (Respondent)Representation: Counsel:
J Pickering (Crown)
W Hunt (Applicant)
Solicitors:
S Kavanagh (Crown)
S E O'Connor (Applicant)
File Number(s): 2008/18056 Decision under appeal
- Citation:
- R v Roslyn Ann Winter
- Date of Decision:
- 2009-12-07 00:00:00
- Before:
- English DCJ
- File Number(s):
- 2008/18056
Judgment
McCLELLAN CJ at CL: I agree with Blanch J.
BLANCH J: This is an appeal from a sentence imposed at Penrith District Court on 7 December 2009. The applicant was convicted after a trial which commenced on 22 September 2009 and concluded on 29 September 2009. She was charged with and convicted of one count of doing an act with intent to pervert the course of justice between 19 April 2008 and 25 April 2008 contrary to s319 Crimes Act 1900 which carries a maximum penalty of 14 years. She was also tried and convicted of a second count of doing an act with intent to pervert the course of justice on 25 July 2008. On the first count she was sentenced to a fixed term of two years imprisonment from 10 July 2009 and on the second count she was sentenced to a non-parole period of two years from 10 July 2010 with a balance of term of two years. The total sentence was consequently five years with a non-parole period of three years.
FACTS
Both the counts relate to a Crown witness, Joel Stockton, who was to give evidence in the prosecution of the applicant's son, Wesley Hansaker, on a charge of breaking, entering and stealing in June, 2004. The witness Stockton had entered a plea of guilty to that charge and nominated Hansaker as a co-offender and volunteered to give evidence against him. He was sentenced to a community service order.
The first count related to the creation by the applicant of a document purporting to be a retraction by Stockton of the evidence he had undertaken to give. This document was sent by the applicant to her daughter, Alana, with instructions to go to the courthouse with Stockton to have him sign the document in front of a justice of the peace.…
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- AGLC
- Winter v The Queen [2011] NSWCCA 59
- Case
- [2011] NSWCCA 59
- Decision Date
CaseChat Overview and Summary
The central legal issues the court addressed were whether the impact of incarceration on third parties should be considered as a mitigating factor in sentencing for an offence of perverting the course of justice, and if so, the extent to which this should influence the sentence. The court was required to balance the principles of sentencing with the need to uphold the severity of the offence and the principles of justice.
The High Court, in delivering its judgment, considered the relevant legislative framework and case law, emphasising the need to ensure that the sentencing process remains fair and consistent while also acknowledging the broader impact of incarceration on others. The court ultimately determined that the effect of incarceration on third parties could be taken into account as a mitigating factor, but only if it directly relates to the circumstances of the offence. The court held that the trial judge had appropriately exercised discretion in considering these factors, thereby upholding the conviction and sentence imposed by the lower court.
The final orders of the court were to affirm the decision of the lower court, thereby dismissing Mr Winter's appeal against both his conviction and sentence. The High Court's decision underscores the importance of a balanced approach to sentencing that recognises the real-world implications of incarceration on individuals and families, while ensuring that the principles of justice and deterrence are upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: CLELLAN CJ
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