R v Windle [2012] NSWCCA 222

R v Windle [2012] NSWCCA 222

The sentence of four years and six months with a non-parole period of two years and six months was outside the legitimate range for an offence of attempting to strangle a fellow inmate with intent to murder, notwithstanding the offender's serious mental illness and voluntary disclosure of intention. The objective seriousness, the maximum penalty and standard non-parole period, the commission of the offence while in custody, and the offender's criminal record required a heavier sentence. There was no basis for a finding of special circumstances, so the statutory ratio in s 44(2) applied. After allowing 25% for the early guilty plea, the appropriate sentence was five years and four months...

Jurisdiction
Australia
Judgment Date
16 October 2012
Procedural Posture
Director's Appeal Against Sentence / Appeal From Sentence Imposed by the District Court on 15 December 2011; Resentencing
Outcome
Appeal allowed; sentence set aside; respondent resentenced.
Legal Topics
["director's Appeal Against Sentence" 'attempt to Strangle With Intent to Murder' 'manifest Inadequacy of Sentence' 'mental Illness in Sentencing' 'voluntary Disclosure of Intention and Ellis Leniency' 'special Circumstances Under S 44' 'commencement Date and Backdating of Sentence' 'offending While in Custody']
['criminal Law' 'sentencing'] ["director's Appeal Against Sentence" 'attempt to Strangle With Intent to Murder' 'manifest Inadequacy of Sentence' 'mental Illness in Sentencing' 'voluntary Disclosure of Intention and Ellis Leniency' 'special Circumstances Under S 44' 'commencement Date and Backdating of Sentence' 'offending While in Custody']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Director's Appeal Against Sentence / Appeal From Sentence Imposed by the District Court on 15 December 2011; Resentencing

Legal Issues

  1. 1 ['Whether the sentence imposed for attempting to strangle a fellow inmate with intent to murder was manifestly inadequate.' "Whether the sentencing judge's backdating of the sentence to 29 October 2011 should be adopted on resentencing." "What leniency should be allowed for the offender's voluntary disclosure of his intention to kill, in light of R v Ellis (1986) 6 NSWLR 603." "How the offender's mental illness affected moral culpability, deterrence, protection of society and proportionality in sentencing." 'Whether there were special circumstances justifying departure from the statutory ratio between the non-parole period and the balance of sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).']

Ratio Decidendi

The sentence of four years and six months with a non-parole period of two years and six months was outside the legitimate range for an offence of attempting to strangle a fellow inmate with intent to murder, notwithstanding the offender's serious mental illness and voluntary disclosure of intention. The objective seriousness, the maximum penalty and standard non-parole period, the commission of the offence while in custody, and the offender's criminal record required a heavier sentence. There was no basis for a finding of special circumstances, so the statutory ratio in s 44(2) applied. After allowing 25% for the early guilty plea, the appropriate sentence was five years and four months...

Court Disposition

Appeal allowed; sentence set aside; respondent resentenced.

Orders

  • ['Allow the appeal and set aside the sentence imposed by the District Court on 15 December 2011.' 'Resentence the offender to a period of imprisonment for five years, four months, being a non-parole period of four years and a balance of the term of the sentence of 16 months.' 'Direct that the sentence commence on 29...