AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 27 August 2018

Wingco v R

[2018] NSWCCA 187

Theft & property
CRIMINAL LAW

Citation: Wingco v R [2018] NSWCCA 187
Court: NSW Court of Criminal Appeal
Date: 27 August 2018
Judge(s): Gleeson JA (at [1]); R A Hulme J (at [39]); Button J (at [40])

Background

The applicant pleaded guilty in the District Court to eight offences of stealing from the person, with seven further offences taken into account on a Form 1 (a procedural mechanism for sentencing courts to consider additional charges without recording separate convictions). The offences involved picking wallets and purses from shoppers at retail centres across Sydney between March and June 2015. Police executing search warrants at the applicant's home and a storage unit found over 80 purses and wallets and cash exceeding $30,000.

The sentencing judge imposed an aggregate sentence of 3 years and 4 months, with a non-parole period of 1 year and 10 months, backdated to 12 November 2016. The judge found the offending fell well below mid-range seriousness and applied a 25 percent discount for early guilty pleas. She also found special circumstances given the applicant's diagnosis of breast cancer in late 2016 and subsequent chemotherapy treatment, and noted the applicant's kleptomania reduced her moral culpability and diminished the weight given to general deterrence.

The applicant, self-represented, sought leave to appeal the severity of the sentence on three grounds: that the sentencing judge failed to consider rehabilitation courses completed in custody, failed to account for her medical condition, and failed to consider her family circumstances, specifically her brother's serious illness in the Philippines.

  • Whether certificates of courses completed by the applicant after sentencing constituted admissible fresh evidence capable of establishing error by the sentencing judge
  • Whether the sentencing judge erred in her treatment of the applicant's medical condition
  • Whether the applicant's brother's medical condition in the Philippines, not raised at the sentencing hearing, could ground a ground of appeal or support a reduction in the non-parole period

Decision

On Ground 1, the Court refused to admit the course completion certificates. Both certificates (for a hygiene operations course and an EQUIPS Foundation course) were issued after the sentencing date. The Court applied the principles from Khoury v R and Tran v R, confirming that events arising entirely after sentencing cannot constitute an error by the sentencing judge. A fundamental precondition to quashing a sentence is identifying that the original sentence was in some respect wrong at the time it was imposed; post-sentencing conduct does not satisfy that test.

On Ground 2, the Court found that the sentencing judge had expressly considered the applicant's medical condition. Her Honour made a finding of special circumstances specifically because of the breast cancer diagnosis and chemotherapy treatment, recognising that imprisonment would weigh more heavily on the applicant by reason of her ill health. No error was identified.

On Ground 3, the Court declined to accept the applicant's uncorroborated assertions about her brother's illness in the Philippines. The matter had not been raised at the sentencing hearing, and no evidence of the brother's condition was before the Court. Whether the circumstances had arisen before or after sentencing made no difference to the outcome: if they pre-dated sentencing, no adequate explanation existed for their omission; if they post-dated sentencing, it could not have been an error to omit them. The Court noted that, given the applicant was imminently eligible for parole, any request to travel overseas to visit her brother was a matter for the State Parole Authority, which holds the power to grant or refuse permission to leave Australia under a parole order.

Orders Made

  • The application for leave to appeal against sentence was refused.

Key Takeaways

  • A sentencing judge cannot be found to have erred by failing to consider events or circumstances that arose entirely after the sentencing date; the relevant question is whether the sentence was correct at the time it was imposed.
  • Admitting fresh evidence on a sentence appeal is a discretionary power, and "proper grounds" must be established before that discretion is exercised; caution is required, particularly where evidence is uncorroborated.
  • Where a subjective matter (such as a family member's illness) was not raised at the original sentencing hearing, an appellate court cannot assess whether the facts existed at the time, and an applicant who failed to raise it bears the consequences of that omission.
  • Upholding the sentence, the Court of Criminal Appeal confirmed that matters arising after sentence concerning an applicant's personal circumstances are generally for bodies such as the State Parole Authority, not for an appellate court, to address.
  • No error was established in the sentencing judge's treatment of the applicant's medical condition where the judge had explicitly recognised it, made a finding of special circumstances on that basis, and adjusted the sentence accordingly.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94, 193C(1), 527C(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 214A(1)(g)

Cases:
- Khoury v R [2011] NSWCCA 118
- R v Lanham [1970] 2 NSWR 217
- Tran v R [2014] NSWCCA 32