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5
Court of Criminal Appeal 29 April 2005

R v WILSON

[2005] NSWCCA 112

Also reported as (2005) 153 A Crim R 257
Homicide
CRIMINAL LAW SENTENCE MURDER PAROLE 8 YEARS PAROLE 11 YEARS. CRIMINAL LAW

Citation: R v Wilson [2005] NSWCCA 112
Court: NSW Court of Criminal Appeal
Date: 29 April 2005
Judges: Bryson JA; Studdert J; Adams J

Background

The respondent, an 18-year-old man, pleaded guilty to the murder of a taxi driver in Nowra in October 1999. The victim had picked up the respondent and driven him to a remote bushland location. When the respondent admitted he had no money to pay the fare, a confrontation developed and the respondent stabbed the victim in the chest with a knife, killing him. The respondent then stole money, drove the taxi away, returned to the scene, burned the vehicle, and concealed both the knife and his identity.

Sentencing was significantly delayed because the respondent was found unfit to stand trial, and he spent years in custody with serious psychological illness before he could be dealt with by the criminal justice system. Simpson J ultimately sentenced him in July 2004 following a plea of guilty.

The Crown appealed against the sentence imposed by Simpson J, arguing it was manifestly inadequate. The sentencing judge had imposed 12 years imprisonment with a non-parole period of 8 years, declining to find that the murder was premeditated or planned, and sentencing on the basis that the respondent intended to inflict grievous bodily harm at the time he produced the knife.

  • Whether the sentence of 12 years with an 8-year non-parole period was manifestly inadequate for this murder, given its objective circumstances.
  • Whether Simpson J erred in declining to find that the killing was premeditated or committed in the course of a planned robbery.
  • What weight should be given to the extraordinary delay in sentencing, which arose from the respondent's prolonged unfitness to stand trial.
  • How the Court of Criminal Appeal should reach a decision where the three judges held different views about the appropriate sentence, producing a division of opinion.

Decision

The majority of the Court of Criminal Appeal allowed the Crown appeal and increased the sentence. Bryson JA, who favoured the most severe outcome, supported the intermediate position of Studdert J in order to produce a majority decision. This procedural mechanism, where a judge supports a less extreme position than their own preferred one to achieve a result, was itself a notable feature of the case.

On the facts, the court accepted Simpson J's finding that the murder was not proven to be premeditated or planned beyond reasonable doubt. The sentencing judge was not shown to have made an error of law or fact in her approach. Nevertheless, the majority concluded the resulting sentence was manifestly inadequate given the gravity of an intentional killing, even one where the mental element was an intention to cause grievous bodily harm rather than an intention to kill.

Adams J dissented. He agreed there was no identifiable error in Simpson J's reasons and placed significant weight on the exceptional circumstances of the prolonged delay in sentencing caused by the respondent's unfitness, through no fault of his own. Adams J concluded the original sentence was not so manifestly inadequate as to warrant intervention on a Crown appeal, and would have dismissed the appeal.

The Court ultimately resentenced the respondent to 15 years imprisonment commencing 22 October 1999, with a non-parole period of 11 years commencing on the same date.

Orders Made

  • Crown appeal allowed.
  • Sentence imposed by Simpson J set aside.
  • Respondent sentenced to 15 years imprisonment, commencing 22 October 1999 and expiring 21 October 2014.
  • Non-parole period of 11 years, commencing 22 October 1999 and expiring 21 October 2010.
  • 21 October 2010 specified as the first date upon which the respondent is eligible for release on parole.

Key Takeaways

  • A Crown appeal against sentence for murder succeeded where the Court of Criminal Appeal majority found the original sentence of 12 years (non-parole 8 years) was manifestly inadequate, even though no specific error of law or fact was identified in the sentencing judge's reasons.
  • Murder committed with an intention to inflict grievous bodily harm, rather than an intention to kill, remains a very serious offence, and that mental element does not of itself justify a substantial reduction in the sentencing range.
  • Prolonged pre-sentencing custody arising from a finding of unfitness to be tried, and endured through no fault of the offender, can operate as a significant mitigating factor at sentence. Adams J (dissenting) treated this as a reason to dismiss the Crown appeal entirely.
  • Where three judges in the Court of Criminal Appeal hold different views on the appropriate sentence, a judge favouring the most severe outcome may formally support an intermediate position to produce a working majority. That mechanism was applied here, with Bryson JA supporting Studdert J's intermediate conclusion.
  • The finding by the sentencing judge that premeditation had not been proven beyond reasonable doubt was accepted by the Court of Criminal Appeal as open on the evidence, and was not disturbed on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Mental Health (Criminal Procedure) Act 1990 (NSW)
- Supreme Court Act 1970 (NSW)
- Judiciary Act 1903 (Cth)

Cases:
- R v Simpson (2001) 53 NSWLR 704
- R v Thomson (2000) 49 NSWLR 383
- R v Houlton [2000] NSWCCA 183
- R v Kalache (2000) 111 A Crim R 152
- R v Holder [1983] 3 NSWLR 245
- Rohde v Director of Public Prosecutions (1986) 161 CLR 119
- Elliott & Hitchins v R (1983) 9 A Crim R 238
- Gilmore v R (1979) 1 A Crim R 416
- R v Huynh [2001] NSWCCA 269
- R v Merritt [2000] NSWCCA 365
- R v CJP [2004] NSWCCA 188
- Woolworths Ltd v Kelly (1990) 22 NSWLR 189