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Wootton v R

Wootton v R

Case [2014] NSWCCA 86 21 May 2014

Appeal

Natural Justice & Procedural Fairness

Criminal Liability

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Wootton v R [2014] NSWCCA 86
Hearing dates: 13 May 2014
Decision date: 21 May 2014
Before: Gleeson JA at [1]
RA Hulme J at [2]
Campbell J at [3]
Decision:
1. Leave to appeal granted;
2. Appeal dismissed

Catchwords:
CRIMINAL LAW - appeal - appeal against sentence - natural justice - procedural fairness - whether finding that gun crimes are on the rise without giving an opportunity to make submissions on the point constituted a denial of procedural fairness
CRIMINAL LAW - appeal - appeal against sentence - whether no evidence to support the finding that gun crimes are becoming increasingly prevalent
Legislation Cited: Crimes Act 1900 (NSW), s 112
Criminal Appeal Act 1912 (NSW), s 6
Cases Cited: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2;
El Masri v R [2014] NSWCCA 13;
House v The King (1936) 55 CLR 499;
Nguyen v R; Phommalysack v R (2011) 31 VR 673; [2011] VSCA 32;
R v H (1980) 3 A Crim R 53;
R v House [2005] NSWCCA 88;
R v MacNeil-Brown (2008) 20 VR 677; [2008] VSCA 190;
Trajkovski v The Queen [2011] VSCA 170
WCB v The Queen (2010) 2 VR 483
Category: Principal judgment
Parties: David Wootton (Applicant)
Crown (Respondent)
Representation: Counsel: G Brady (Applicant)
T Smith (Respondent)
Solicitors: Nyman Gibson Stewart (Applicant)
Solicitors for Public Prosecution (Respondent)

File Number(s): 2010/294414
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-01-31 00:00:00

Before:

English DCJ

File Number(s):

2010/294414

Judgment

GLEESON JA: I agree with Campbell J.

RA HULME J: I agree with Campbell J.

CAMPBELL J: The applicant was sentenced in the District Court on 31st January 2013 to a term of imprisonment of 10 years and 9 months with a non-parole period of 7 years for the offence of specially aggravated breaking and entering a dwelling and committing a serious indictable offence, contrary to s 112(3) Crimes Act 1900 (NSW). The serious indictable offence was robbery, and the circumstance of special aggravation was being armed with a .22 pump-action long rifle. The applicant indicated he would plead guilty in the days leading up to his trial.

The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7.

Summary of the Facts

The applicant was one of three co-offenders who committed what is commonly referred to as a "home invasion" on the evening of 22nd August 2010 at the victim's residence in Katoomba. The men were armed with firearms and concealed their identity with either masks or full-face motorcycle helmets. The applicant was wearing a motorcycle helmet and actually carrying the .22 rifle.

The victim was home with his partner and their two-month old baby when the applicant and his accomplices knocked loudly on the front door at around 8:45 pm. One of them called out "Katoomba Police". The victim opened the door but immediately…

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 Wootton v R

Details

AGLC: Wootton v R [2014] NSWCCA 86
Case: [2014] NSWCCA 86
Decision Date: 21 May 2014

CaseChat Overview and Summary

The appellant, Wootton, sought to appeal his sentence in the Supreme Court of Australia, challenging the sentencing judge's consideration of the rising trend of gun crimes as a factor in determining the sentence. The primary dispute centred on whether the failure to provide Wootton with an opportunity to make submissions on this point constituted a denial of procedural fairness and whether there was sufficient evidence to support the finding that gun crimes were becoming increasingly prevalent.

The court had to determine whether the sentencing judge's consideration of the rise in gun crimes without allowing Wootton to make submissions on this issue breached the principles of natural justice and procedural fairness. Additionally, the court needed to assess whether there was adequate evidence to support the judge's assertion regarding the increasing prevalence of gun crimes.

In its reasoning, the court held that the consideration of the rising trend of gun crimes did not constitute a breach of procedural fairness. The court found that the judge's observation was a permissible factor in the sentencing process, and there was no requirement for Wootton to be given an opportunity to comment on it. Furthermore, the court determined that there was sufficient evidence to support the judge's finding regarding the increasing prevalence of gun crimes, as the judge relied on reliable statistics and reports from relevant authorities. Consequently, the appeal against the sentence was dismissed.

Orders