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Court of Criminal Appeal 1 June 2015

Wilson v R

[2015] NSWCCA 128

Homicide
CRIMINAL LAW SENTENCE APPEAL EXTENSION OF TIME REQUIRED “MULDROCK ERROR” CONCEDED BY CROWN COURT REQUIRED TO RE EXERCISE THE SENTENCING DISCRETION

Citation: Wilson v R [2015] NSWCCA 128
Court: NSW Court of Criminal Appeal
Date: 1 June 2015
Judge(s): Hoeben CJ at CL; Hall J; Garling J

Background

The applicant was convicted by jury in November 2007 of murder and sentenced in April 2008 by Howie J to a non-parole period of 20 years, commencing 19 May 2006, with a balance of term of six years and six months. The offence arose from a planned armed robbery at the deceased's home in the early hours of 11 January 2005. The applicant went to the premises armed with a pistol, with the intention of robbing the deceased of a large sum of money. During the confrontation, the deceased was pistol-whipped and then shot in the forehead at close range. The trial judge found the applicant intended to kill the deceased and that he lost his temper during the course of the robbery.

Two co-offenders were convicted of the lesser offence of manslaughter and received substantially shorter sentences. The applicant sought an extension of time to appeal his sentence, relying on the High Court's later decision in Muldrock v The Queen [2011] HCA 39, which clarified the correct approach to standard non-parole period legislation.

  • Whether an extension of time should be granted to bring a sentence appeal filed more than four years out of time
  • Whether the original sentencing judge erred in his approach to the standard non-parole period legislation, as identified in Muldrock v The Queen ("Muldrock error")
  • Whether, in re-exercising the sentencing discretion and taking into account events since the original sentence, a lesser sentence was warranted in law

Decision

The Court of Criminal Appeal granted the extension of time. Although the delay was substantial (exceeding four years), the Crown conceded Muldrock error and the applicant bore no personal fault for the delay. Applying the principles from Kentwell v The Queen, the Court found the interests of justice favoured granting the extension.

The Crown's concession of Muldrock error meant the original sentencing approach was flawed. The primary issue for the Court then became whether, on a re-exercise of the sentencing discretion, a lesser sentence was warranted under s 6(3) of the Criminal Appeal Act 1912. This required consideration of all relevant factors, including developments since the original sentence was imposed.

On the positive side, the Court noted that the applicant's subjective case was strong at original sentence and had grown considerably stronger over nine years of custody. His history of profound childhood deprivation, which was relevant under the principles confirmed in Bugmy v The Queen, did not diminish with the passage of time. His conduct in custody was described as overwhelmingly positive, and he had successfully removed himself from a drug-using environment both before and during incarceration. There had been only a single negative conduct report during his entire period of imprisonment.

Against those factors, the Court acknowledged the substantial objective seriousness of the offence: the applicant had entered a man's home armed with a loaded firearm, intending to rob him, and shot him at close range after pistol-whipping him. General deterrence and denunciation remained relevant and weighty considerations. The applicant had not expressly admitted the killing occurred in the manner found by the trial judge, and had not expressed remorse for the robbery itself. Balancing these considerations, the Court concluded a lesser sentence was warranted.

Orders Made

  • Extension of time within which to apply for leave to appeal against sentence granted
  • Leave to appeal granted and the appeal allowed
  • Sentence imposed by Howie J on 4 April 2008 quashed and replaced with a non-parole period of 16 years commencing 19 May 2006 and expiring 18 May 2022, with a balance of term of 5 years and 4 months expiring 18 September 2027

Key Takeaways

  • A concession of Muldrock error by the Crown shifts the central question to whether, in re-exercising the sentencing discretion, a lesser sentence is warranted in law, requiring consideration of all factors including post-sentence developments.
  • Substantial delay in seeking an extension of time does not necessarily defeat an application where the Crown concedes a fundamental error in the original sentencing approach and the applicant bears no personal responsibility for the delay.
  • Under the principles from Bugmy v The Queen, the effects of profound childhood deprivation on an offender of Aboriginal descent do not diminish with the passage of time and must be fully weighed in any re-sentencing exercise.
  • Positive post-sentence conduct, including rehabilitation from drug use and constructive engagement while in custody, can constitute a significant factor supporting a reduced sentence on re-sentencing.
  • General deterrence and denunciation retain their importance even where personal deterrence has reduced in significance over time, particularly in cases involving serious and premeditated criminal activity leading to a killing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Elturk v R [2014] NSWCCA 61
- R v Kirrlie Shane Wilson [2008] NSWSC 238