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Woods v R

Woods v R

Case [2023] NSWCCA 37 3 March 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Woods v R [2023] NSWCCA 37
Hearing dates: 07 September 2022
Date of orders: 03 March 2023
Decision date: 03 March 2023
Before: Mitchelmore JA at [1];
Button J at [2];
Wright J at [4]
Decision:
1. Leave to appeal is granted.
2. The appeal is dismissed.

Catchwords:
CRIME — Appeals — Appeal against sentence — Sexual and other offences — Sentenced to 9 months’ imprisonment but immediately released on recognizance release order – Whether sentencing judge erred by finding no alternative to imprisonment appropriate – Compelling subjective circumstances – Manifest excess – Grounds of appeal not made out – Leave to appeal granted – Appeal dismissed

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 8
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Code (Cth), s 474.22(1), s 474.27(1)
Crimes Act 1914 (Cth), ss 16A, 16BA, 17A, 20(1)(a), 21A

Cases Cited:
Atanackovic v The Queen (2015) 45 VR 179; [2015] VSCA 136
Blackett v R [2021] NSWCCA 210
DPP (Cth) v Boyles (a pseudonym) [2016] VSCA 267
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
Majid v R [2010] NSWCCA 121
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Baker [2000] NSWCCA 85
R v De Leeuw [2015] NSWCCA 183
Stephens v R [2009] NSWCCA 240
Totaan v R [2022] NSWCCA 75
Windle v R [2011] NSWCCA 277

Category: Principal judgment
Parties: Ian Woods (Applicant)
Regina (Respondent)
Representation:
Counsel:
K D Ginges (Applicant)
A Chhabra (Crown)
Solicitors:
Smythe Wozniak Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2020/321895
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

07 December 2021

Before:

Robinson DCJ

File Number(s):

2020/00321895

Headnote

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to one offence of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code (Cth) and was sentenced to imprisonment for nine months but was immediately released under a recognizance release order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth).

The offending involved a police officer with an assumed online identity of a 14 year old female and thus there was no actual child victim. Furthermore, the applicant had a compelling subjective case including that he had long-standing mental health conditions and a degree of cognitive impairment.

The issues raised by the applicant’s grounds of appeal were:

whether the sentencing judge erred in finding, for the purpose of s 17A of the Crimes Act 1914, that no alternative to imprisonment was available;
whether the sentence imposed was manifestly excessive.

Held as to issue (i): There was no appellable error in relation to the finding that no other sentence was appropriate in all the circumstances of the case. The fact that a sentence other than imprisonment was available did not have the consequence that…

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 Woods v R

Details

AGLC: Woods v R [2023] NSWCCA 37
Case: [2023] NSWCCA 37
Decision Date: 03 March 2023

CaseChat Overview and Summary

Woods was convicted of sexual and other offences and sentenced to nine months’ imprisonment. However, he was immediately released on a recognizance release order. Woods appealed against his sentence, arguing that the sentencing judge erred by finding no alternative to imprisonment appropriate. Woods contended that the sentencing judge failed to consider his compelling subjective circumstances and that the sentence was a manifest excess. The appeal raised issues about the appropriateness of the sentence given the personal circumstances of the offender and the discretion of the sentencing judge.

The court considered whether the sentencing judge erred by finding no alternative to imprisonment appropriate. It was noted that the sentencing judge must consider all available alternatives to imprisonment and that these must be explored thoroughly before determining that imprisonment is the only viable option. However, the court held that the sentencing judge had adequately considered the circumstances of the offender and had determined that there was no alternative to imprisonment that was appropriate. The court found that the sentence imposed was not a manifest excess, and that the sentencing judge had exercised their discretion appropriately.

In dismissing the appeal, the court emphasised that the sentence imposed was not manifestly excessive and that the sentencing judge had appropriately exercised their discretion. The court also noted that the appeal was not based on any error of law but rather on a disagreement with the outcome of the sentence. The court held that the grounds of appeal had not been made out, and that the appeal should be dismissed. The leave to appeal was granted, but the appeal was ultimately unsuccessful.

The court dismissed the appeal and affirmed the sentence imposed by the sentencing judge. The court found that the sentence was not manifestly excessive and that the sentencing judge had exercised their discretion appropriately. The court did not make any further orders.

Orders