Winter v The Queen - [2011] NSWCCA 59

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 25
Decision:
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 387
Category: 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.…

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 Winter v The Queen

Details

AGLC: Winter v The Queen [2011] NSWCCA 59
Case: [2011] NSWCCA 59
Decision Date: 28 March 2011

CaseChat Overview and Summary

The case of Winter v The Queen involved the appellant, Mr Winter, who was convicted of perverting the course of justice. The matter was heard and determined by the High Court of Australia. The crux of the dispute centred around the impact of Mr Winter's incarceration on third parties, namely his family, and whether this constituted a mitigating factor in the sentencing phase of the criminal proceedings.

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