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Wray v Regina

Wray v Regina

Case [2007] NSWCCA 162 21 June 2007

Sentencing

Effect of Administrative Decisions on Sentence

Mens Rea & Intention

Criminal Law

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Reported Decision: 171 A Crim R 583

New South Wales

Court of Criminal Appeal

CITATION: Wray v Regina [2007] NSWCCA 162

HEARING DATE(S): 14 March 2007

JUDGMENT DATE:
21 June 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hislop J at 24

DECISION: 1. The time for seeking leave to appeal be extended to the date of the filing of this application for leave to appeal; 2. Leave to appeal granted; 3. Appeal allowed as to count 8; 4. As regards count 8, the sentence is quashed and in lieu thereof the applicant is sentenced to imprisonment for 6 years commencing on 15 August 2002 and expiring on 14 August 2008 with a non parole period of 4 years and 3 months commencing on 15 August 2002 and expiring on 14 November 2006; 5. The sentences as to counts 3 – 7 inclusive are confirmed.

CATCHWORDS: Criminal law - Sentence - Protection - Totality - Denial of guilt - Exclusion from programs - Effect of administrative decisions on sentence.

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 - s 11(1)
Crimes Act 1900 - ss 59, 61, 66C, 474D
Crimes (Administration of Sentences) Act 1999 - ss 135(a) and (f), 135A(a) and (d)
Crimes (Sentencing Procedure) Act - ss 44, 45

CASES CITED: DCU v State Parole Authority of New South Wales [2006] NSWSC 526
Esho v Parole Board Authority of NSW [2006]
Galli v NSW State Parole Authority [2006] NSWSC 206
Gulliford v New South Wales State Parole Authority [2006] NSWSC 1230
Lee v State Parole Authority of New South Wales [2006] NSWSC 1225NSWSC 304
McNaughton v R (2006) 163 A Crim R 381
Pearce v R (1998) 194 CLR 610 at 6
Power v R (1974) 131 CLR 623
R v AEM [2002] NSWCCA 58
R v Azar [2000] NSWCCA 26
R v Cartwright (1989) 17 NSWLR 243
R v Delaney (2003) NSWLR 1(DR), Fowler (2003) 151 CLR 166 at [242]
R v Gould [1999] NSWCCA 177
R v Hallocoglu (1992) 29 NSWLR 67
R v Hammoud (2000) 118 A Crim R 66
R v Henry (1999) 46 NSWLR 346
R v JRD [2007] NSWCCA 55
R v Knight [2004] NSWCCA 145
R v Mostyn (2004) 145 A Crim R 304
R v Munday (1981) 2 NSWLR 177
R v Perez-Vargas (1986) 8 NSWLR 559
R v Scott [2003] NSWCCA 28
R v Sukkar [2006] NSWCCA 92
R v Vachalec [1981] 1 NSWLR 351
Regina v Reyes [2005] NSWCCA 218
Varney v Parole Board (WA) (2000) 23 WAR 187
York v R (2005) 79 ALJR 1919

PARTIES: Applicant - Garry John Wray
Respondent - Regina

FILE NUMBER(S): CCA 2006/2074

COUNSEL: Applicant - self
Respondent - Mr W Dawe QC

SOLICITORS: Applicant - self
Respondent - Director of Public Prosecutions (New South Wales)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/31/0270 & 01/31/0115

LOWER COURT JUDICIAL OFFICER: Bell DCJ

LOWER COURT DATE OF DECISION: 16 August 2001

- 1 -

2006/2074

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 Wray v Regina

Details

AGLC: Wray v Regina [2007] NSWCCA 162
Case: [2007] NSWCCA 162
Decision Date: 21 June 2007

CaseChat Overview and Summary

The case of Wray v Regina involved an appellant who had been sentenced for a number of criminal offences, including assault and theft. The central issue before the court was whether the trial judge had erred in failing to consider certain administrative decisions in determining the appropriate sentence. The appellant argued that the trial judge should have taken into account that he had been excluded from certain rehabilitation programs due to his denial of guilt, which had a significant impact on his prospects for rehabilitation and reintegration into society.

The court was tasked with determining whether the trial judge had failed to properly consider the totality principle in sentencing, which requires that the sentence should be proportionate to the offence and the offender, taking into account all relevant circumstances. The court also had to assess whether the exclusion from rehabilitation programs due to the appellant's denial of guilt constituted a relevant factor that should have been considered in determining the sentence. The appellant contended that the exclusion from these programs had a detrimental effect on his rehabilitation prospects, and therefore, the trial judge should have taken this into account when imposing the sentence.

In its reasoning, the court held that the trial judge had not erred in failing to consider the administrative decisions regarding the exclusion from rehabilitation programs. The court found that the totality principle did not require the trial judge to consider every possible factor that might affect the appellant's rehabilitation prospects. Instead, the court held that the trial judge was entitled to focus on the gravity of the offences and the need for punishment and deterrence. The court also held that the exclusion from rehabilitation programs was a consequence of the appellant's denial of guilt, which was a factor that the trial judge had already considered in determining the appropriate sentence. Therefore, the court concluded that the trial judge had not erred in failing to consider the administrative decisions in sentencing.

The court dismissed the appeal and affirmed the sentence imposed by the trial judge. The court held that the trial judge had appropriately exercised his discretion in determining the appropriate sentence, taking into account the gravity of the offences and the need for punishment and deterrence. The court found that the exclusion from rehabilitation programs was a consequence of the appellant's denial of guilt, which was a factor that the trial judge had already considered in determining the sentence. Therefore, the court held that the trial judge had not erred in failing to consider the administrative decisions in sentencing. The appeal was dismissed, and the sentence imposed by the trial judge was affirmed.

Orders