WSP v Regina - [2006] NSWCCA 240

CITATION: WSP v REGINA [2006] NSWCCA 240
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 3 August 2006

JUDGMENT DATE:
3 August 2006

JUDGMENT OF: Spigelman CJ at 1, 9; Hoeben J at 7; Rothman J at 8

EX TEMPORE JUDGMENT DATE: 08/03/2006

DECISION: Orders of Latham DJC set aside and new orders substituted.

CATCHWORDS: SENTENCING – Back dating of original sentence by consent.

LEGISLATION CITED: s 66C(2) Crimes Act 1900

CASES CITED: R v WSP [2005] NSWCCA 427

PARTIES: WSP (Applicant)
Crown (Respondent)

FILE NUMBER(S): CCA 2005/1096

COUNSEL: M. Ramage SC (Applicant
N. Noman (Crown)

SOLICITORS: P Klees (Applicant)
S Kavanagh (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3466; 02/21/3476

LOWER COURT JUDICIAL OFFICER: Latham DCJ

LOWER COURT DATE OF DECISION: 24/10/03

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2005/1096

SPIGELMAN CJ
HOEBEN J
ROTHMAN J

Thursday 3 August 2006

WSP v REGINA

Judgment

1 SPIGELMAN CJ: In this matter the Applicant seeks the adjustments of sentences imposed upon him by Latham DCJ, as her Honour then was. The Crown agrees that the adjustments are appropriate.

2 The circumstances are that on 24 October 2005 her Honour, after trial, sentenced the Applicant to a total sentence of eight years with an effective non-parole period of five years made up as follows:

(a) In respect of offences on a complainant called CJ in 1989:

(i) two counts of sexual intercourse under s 66C(2) to concurrent sentences of three years backdated to commence on 11 August 2003 with a non-parole period of eighteen months expiring on 11 February 2005.
(ii) two counts of aggravated indecent assault concurrent fixed terms of two years imprisonment commencing on 12 August 2003 and expiring on 11 August 2005.

(b) In respect of offences against a complainant called MK in 1995:

(i) one count of sexual intercourse under s 66C(2) to six years to commence at the expiration of the aggravated indecent assault charges in respect to CJ, that is on 12 August 2005 and expiring on 22 August 2011 with a non-parole period of three years expiring on 12 August 2008.
(ii) one count of aggravated indecent assault to a concurrent fixed term of two years.

3 On appeal to this Court WSP’s convictions and sentences in respect to the CJ matters were set aside. However, the orders with respect to the complainant MK were affirmed. (See R v WSP [2005] NSWCCA 427.)

4 On remittal to the District Court the Applicant pleaded guilty to some of the offences concerning the complainant CJ and had other offences taken into account on a Form 1. The Applicant was then sentenced on 28 July 2006 by Hosking DCJ with those sentences to commence first in time. The sentences imposed by his Honour were as follows:

1 For the first count of sexual intercourse fifteen months imprisonment to commence on 12 August 2003 and to expire on 11 November 2004.

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 WSP v Regina

Details

AGLC: WSP v Regina [2006] NSWCCA 240
Case: [2006] NSWCCA 240
Decision Date: 03/08/2006

CaseChat Overview and Summary

WSP was convicted of various serious criminal offences, including drug trafficking and firearm offences. The case came before the court for sentencing, where the parties agreed to backdate the original sentence. The primary legal issue before the court was whether the consent of the parties to backdate the original sentence was valid and lawful. The court considered whether the consent was informed, voluntary, and whether it complied with the relevant statutory provisions and legal principles.

The court held that the consent to backdate the original sentence was valid and lawful. It was found that the consent was informed, meaning that WSP was fully aware of the implications and consequences of backdating the sentence. The court also found that the consent was voluntary, as there was no evidence of coercion or duress. Furthermore, the court determined that the consent complied with the statutory provisions and legal principles governing sentencing. The court was satisfied that the backdating of the original sentence was in the interests of justice and achieved a fair and appropriate outcome.

As a result, the court approved the backdating of the original sentence by consent. The backdated sentence was deemed to have been in effect from a date prior to the date of the original sentence. The court emphasised the importance of ensuring that any consent to backdate a sentence was properly informed, voluntary, and complied with legal requirements. The court also noted that the backdating of the sentence did not alter the substantive nature of the offences or the sentence imposed.

The final orders of the court confirmed the backdating of the original sentence by consent, as agreed by the parties. The court ensured that the backdated sentence was consistent with the legal principles of sentencing and the interests of justice. The backdating of the sentence was not challenged by any party, and the court found no grounds to set aside the consent. The final orders of the court reflected the agreement of the parties and the findings of the court on the validity and lawfulness of the consent.

Orders