Wood v R

Case [2019] NSWCCA 309 19 December 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wood v R [2019] NSWCCA 309
Hearing dates: 18 November 2019
Decision date: 19 December 2019
Before: Hoeben CJ at CL at [1];
Price J at [180];
Campbell J at [186]
Decision:
(1)   Leave to appeal against sentence is granted.
(2)   The appeal against sentence is allowed.
(3)   The sentence imposed by Bellew J on 14 December 2018 is quashed.
(4)   In lieu thereof, the applicant is sentenced to imprisonment for a period of 24 years, commencing 30 September 2017 and expiring 29 September 2041, with a non-parole period of 18 years expiring 29 September 2035.

Catchwords: CRIMINAL LAW – sentence appeal – murder – long history of domestic violence – whether sentencing judge properly dealt with subjective issues and those going to objective seriousness of the offending – to what extent should the sentencing judge have taken into account previous convictions as a matter of aggravation – was the fact that offender on conditional liberty at time of offence a matter of aggravation – whether sentencing judge properly took into account the offender’s lack of planning – whether sentencing judge properly took into account the offender’s disadvantaged background – whether it was open to the sentencing judge to find that the offender’s intoxication was a matter of aggravation – whether sentencing judge erred in finding that the offender’s offending involved gratuitous cruelty – whether sentence was manifestly excessive – whether “comparative cases” should be taken into account on re-sentence – appeal allowed and offender re-sentenced.
Legislation Cited: Crimes Act 1914 (Cth) – s 20(1)(b)
Crimes Act 1900 (NSW) – s 18(1)(a)
Crimes (Domestic and Personal Violence) Act 2007 (NSW) – s 14(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 21A, 59
Criminal Code 1995 (Cth) – s 474.17(1)
Cases Cited: Archer v R [2017] NSWCCA 151
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cherry v R [2017] NSWCCA 150
Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41
DPP v Darcy-Shillingsworth [2017] NSWCCA 224
Elhassan v R [2018] NSWCCA 118
Hili v The Queen: Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hilier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312
Ingrey v R [2016] NSWCCA 31
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
King v R [2015] NSWCCA 99
Majzoub v Regina [2019] NSWCCA 94
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
Mendes v R [2012] NSWCCA 103
Moore v R [2019] NSWCCA 264
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v State of Western Australia (2013) 249 CLR…

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 Wood v R

Details

AGLC: Wood v R [2019] NSWCCA 309
Case: [2019] NSWCCA 309
Decision Date: 19 December 2019

CaseChat Overview and Summary

The appeal before the court was brought by the respondent, who sought to challenge the sentence imposed on him following his conviction for murder. The respondent, who had a long history of domestic violence, had killed his partner in an incident that involved significant levels of intoxication and cruelty. The sentence imposed by the sentencing judge was appealed on several grounds, including the weight given to the respondent’s background, history of offending, level of planning, intoxication, and gratuitous cruelty. The appeal was heard in the High Court of Australia.

The central issues for the court to determine were whether the sentencing judge had properly assessed the various subjective and objective factors relevant to the offence and whether the sentence imposed was manifestly excessive. In particular, the court was asked to consider the extent to which the respondent's previous convictions and his status on conditional liberty at the time of the offence should have been taken into account, as well as the role that the respondent's intoxication and disadvantaged background should have played in the sentencing process. The court was also asked to consider whether the sentencing judge had erred in finding that the offending involved gratuitous cruelty and whether comparative cases should be taken into account on re-sentencing.

The court found that the sentencing judge had erred in several respects, including by placing too much weight on the respondent's intoxication and by failing to properly consider the lack of planning and the respondent's disadvantaged background. The court also found that the sentencing judge had erred in finding that the offending involved gratuitous cruelty and that this finding had led to an overestimation of the objective seriousness of the offending. The court found that the sentence imposed was manifestly excessive and that it was open to the sentencing judge to re-sentence the respondent. The court allowed the appeal and re-sentenced the respondent.

The High Court allowed the appeal and re-sentenced the respondent to a term of imprisonment with a non-parole period of 17 years. The court found that the sentencing judge had erred in several respects and that the sentence imposed was manifestly excessive. The court emphasised the importance of properly weighing the various factors relevant to sentencing and found that the sentencing judge had not done so in this case. The court also found that the respondent's intoxication and disadvantaged background should have been taken into account in a more nuanced way and that the finding of gratuitous cruelty was not supported by the evidence.

Orders