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Wright v R

Wright v R

Case [2016] NSWCCA 122 23 June 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Wright v R [2016] NSWCCA 122
Hearing dates: 10 June 2016
Decision date: 23 June 2016
Before: Basten JA at [1];
R A Hulme J at [21];
Fagan J at [100]
Decision:
Leave to appeal against sentence refused.

Catchwords: CRIMINAL LAW – appeal against sentence – historical child sexual assault – whether fresh evidence of Alzheimer’s diagnosis shows that a miscarriage of justice occurred in the sentence proceedings – where condition was present but undiagnosed at time of sentence – where sentencing judge had found incarceration would be more difficult than usual – ill-health and advanced age already had a major influence on lenient sentence – evidence could but should not be received by the Court – evidence insufficient to warrant a fresh assessment of sentence – leave to appeal refused
Legislation Cited: Crimes Act 1900 (NSW) ss 73, 76
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 44
Criminal Appeal Act 1912 (NSW) ss 5, 6
Cases Cited: Betts v The Queen [2016] HCA 25
Cornwell v R [2015] NSWCCA 269
Einfeld v The Queen (2010) 200 A Crim R 1; [2010] NSWCCA 87
House v The King (1936) 55 CLR 499
Kentwell v The Queen [2011] 252 CLR 601; [2014] HCA 37
Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
R v AB [2015] NSWCCA 57
R v Deng [2007] NSWCCA 216; 176 A Crim R 1
R v Fordham (1997) 98 A Crim R 359
R v Goodwin (1990) 51 A Crim R 328
R v Lanham [1970] 2 NSWR 217
R v MJR [2002] NSWCCA 129; 54 NSWLR 368
R v Vachalec [1981] 1 NSWLR 351
Turkmani v R [2014] NSWCCA 186; 244 A Crim R 186
Category: Principal judgment
Parties: Richard Wright (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr T Gartelmann SC with Mr E Anderson (Applicant)
Ms S Dowling SC (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2013/269211
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

6 February 2015

Before:

Woodburne SC DCJ

File Number(s):

2013/269211

Judgment

BASTEN JA: In circumstances fully explained by R A Hulme J, the applicant, Richard Wright, sought leave to appeal against sentences imposed by Woodburne DCJ for a number of sexual assaults on young children. Although the circumstances require careful consideration, the material presented to the Court does not ultimately qualify as material upon which this Court could intervene. Accordingly, I would refuse leave to appeal against the sentences.
The admissibility in this Court, on an application for leave to appeal against sentence, of evidence not before the sentencing judge has been the subject of recent consideration in the High Court, restating principles which have, broadly speaking, been applied by this Court for several decades. It is convenient to restate those principles, so far as relevant for present purposes, in order to demonstrate that no occasion for…

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 Wright v R

Details

AGLC: Wright v R [2016] NSWCCA 122
Case: [2016] NSWCCA 122
Decision Date: 23 June 2016

CaseChat Overview and Summary

Wright appealed against the sentence imposed by the trial judge in the County Court. Wright was found guilty of historical child sexual assault and was sentenced to imprisonment. Wright sought to appeal the sentence on the basis of fresh evidence that he was diagnosed with Alzheimer’s disease. The evidence was not known to the sentencing judge at the time of the sentence. Wright submitted that the fresh evidence showed that a miscarriage of justice occurred in the sentencing proceedings because the sentencing judge had already found that Wright’s ill-health and advanced age would have a major influence on the sentence and found that incarceration would be more difficult than usual.

The court was required to consider whether the fresh evidence of Wright’s Alzheimer’s diagnosis showed that a miscarriage of justice occurred in the sentence proceedings. The court had to determine whether the evidence could be received by the Court and whether it was sufficient to warrant a fresh assessment of the sentence. The court also had to consider whether the evidence showed that the sentence was manifestly inadequate. The court considered that the evidence could but should not be received by the Court. The court found that the evidence was insufficient to warrant a fresh assessment of the sentence. The court found that the sentencing judge had already considered the impact of Wright’s ill-health and advanced age on the sentence and that incarceration would be more difficult than usual. The court found that the sentence was not manifestly inadequate.

The court refused leave to appeal against the sentence. The court found that the fresh evidence did not show that a miscarriage of justice occurred in the sentence proceedings. The court found that the evidence was insufficient to warrant a fresh assessment of the sentence. The court found that the sentence was not manifestly inadequate. The court found that the sentencing judge had already considered the impact of Wright’s ill-health and advanced age on the sentence and that incarceration would be more difficult than usual.

Orders