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Court of Criminal Appeal 3 October 2001

REGINA v Glen WILSON [2001] NSWCCA 399 revised - 6

[2001] NSWCCA 399

Also reported as 125 A Crim R 450
Assault & violenceTheft & property

Citation: Regina v Glen Wilson [2001] NSWCCA 399; (2001) 125 A Crim R 450
Court: New South Wales Court of Criminal Appeal
Date: 3 October 2001
Judge(s): Wood CJ at CL; Studdert J; Bell J

Background

The respondent pleaded guilty in the Sydney District Court to two offences: assault with intent to rob while armed with an offensive weapon (a blood-filled syringe), contrary to s 97(1) of the Crimes Act 1900 (NSW), and attempt to steal from the person, contrary to s 94 of the same Act. Both offences occurred within a short interval on the afternoon of 3 February 2001 in Surry Hills. The respondent had approached a woman at an ATM and pointed a syringe filled with his own blood at her, then later attempted to snatch bags from an elderly woman waiting at a bus stop.

The sentencing judge in the District Court imposed a total sentence of two years and three months imprisonment for the principal offence, with a non-parole period of only one month and five days. The respondent was effectively released to parole on the day of sentencing, conditioned on completing a residential drug rehabilitation program. The Crown appealed, contending the sentence was manifestly inadequate.

The respondent was 39 years old at the time of sentencing and had suffered a serious drug addiction since the age of 16. He had volunteered incriminating information to police regarding the armed assault offence during an interview directed at the second offence, and he entered pleas of guilty at the earliest opportunity.

  • Whether the sentence imposed by the District Court was manifestly inadequate for offences of this nature and gravity.
  • Whether the sentencing judge erred in principle by dismissing or diminishing the relevance of deterrence and by criticising established appellate authority, including R v Henry and Hodge, without having those decisions before him.
  • Whether, even if the sentence was manifestly lenient, the Court of Criminal Appeal should exercise its discretion to decline to intervene in light of the respondent's demonstrated rehabilitation progress.

Decision

The Court of Criminal Appeal unanimously found the sentence was manifestly lenient. Bell J, who delivered the primary judgment, identified that the sentencing judge had fallen into error by minimising the objective seriousness of threatening a person with a blood-filled syringe and by departing from the established sentencing approach for such offences without proper basis.

Wood CJ at CL added significant observations about the sentencing judge's conduct. His Honour found it troubling that the sentencing judge had proceeded to criticise the Court of Criminal Appeal's decisions in Henry and Hodge without having those decisions before him. The sentencing judge's dismissal of the deterrent value of sentencing, a principle long recognised in the courts, was equally criticised as an error of principle.

However, despite finding error, the Court exercised its discretion not to intervene. The respondent had made demonstrable progress in his rehabilitation program, and the Court accepted that interfering with that progress at that stage would be counterproductive. Wood CJ at CL noted that there are circumstances in which it is proper for an appellate court to hold back from intervening so as to preserve what may be a genuine, and perhaps final, opportunity for rehabilitation.

Studdert J agreed with both Bell J's proposed order and Wood CJ at CL's additional observations, and the appeal was accordingly dismissed.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that threatening a person with a blood-filled syringe is an objectively serious offence requiring a significantly deterrent sentence, and a sentencing judge cannot diminish that gravity through personal disagreement with established appellate authority.
  • A sentencing judge who criticises binding or persuasive appellate decisions without having those decisions before them risks falling into appealable error of principle.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999, an offender is entitled to a discount reflecting assistance to police, distinct from the utilitarian discount for a guilty plea.
  • In dismissing the appeal, the Court reaffirmed that even where a sentence is found to be manifestly lenient, the appellate court retains a discretion not to intervene when doing so would undermine a genuine and potentially final opportunity for rehabilitation.
  • Sufficient error was established to justify intervention in principle, yet the Court's discretion operated to preserve the respondent's rehabilitation trajectory, illustrating that a finding of manifest leniency does not automatically compel resentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 94, 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- R v Henry (1999) 46 NSWLR 346
- Hodge (NSWCCA, 10 November 1993)
- Dinsdale v The Queen [2000] HCA 54; 115 A Crim R 558
- R v Thompson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Power v The Queen (1973) 131 CLR 623
- R v Rushby (1977) 1 NSWLR 594
- Allpass (1994) 72 A Crim R 561
- Horn (NSWCCA, 1990)
- Maddocks (NSWCCA, unreported, 25 November 1993)
- Ranse (NSWCCA, unreported, 8 August 1994)
- R v Camilleri (NSWCCA, unreported, 8 February 1990)
- R v McDonald (NSWCCA, unreported, 12 October 1998)
- R v Morrissey (NSWCCA, unreported, 15 July 1994)
- R v Lattouf