Wanstall v R [2024] NSWCCA 167

Wanstall v R [2024] NSWCCA 167

The sentencing judge fell into error by making an adverse finding against the applicant in the absence of evidence that the solicitor's statement in the Local Court was based on false instructions from the applicant. This error affected the assessment of the applicant's truthfulness and remorse, requiring resentencing. Upon resentencing, the offence was assessed at mid-range of seriousness, with a discount for a late plea, and appropriate recognition given to subjective factors including the applicant's low risk of reoffending, positive prospects of rehabilitation, acknowledgment of loss of career as significant extra-curial punishment, but not to adverse media publicity, resulting in a...

Parties
Applicant: Damian Scott Wanstall; Respondent: Rex (Crown)
Jurisdiction
Australia
Judgment Date
09 September 2024
Procedural Posture
Criminal Appeal / Leave to Appeal Against Sentence; Resentencing
Outcome
Appeal allowed; sentence quashed; new sentence imposed
Legal Topics
Appeal Against Sentence, Commonwealth Offence, Extra Curial Punishment, Adverse Publicity, Sentencing Principles, Intoxication, Remorse
Criminal Law Appeal Against Sentence Commonwealth Offence Extra Curial Punishment Adverse Publicity Sentencing Principles Intoxication Remorse

Case Brief

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Parties

Damian Scott Wanstall

Applicant

Rex (Crown)

Respondent

Procedural Posture

Criminal Appeal / Leave to Appeal Against Sentence; Resentencing

Legal Issues

  1. 1 Whether the sentencing judge erred in making adverse findings based on instructions allegedly given by the applicant relating to the facts of the offence
  2. 2 Whether the sentencing judge erred in credit findings regarding the applicant's truthfulness and remorse
  3. 3 Whether extra-curial punishment (media publicity, career loss) should be taken into account in sentencing

Ratio Decidendi

The sentencing judge fell into error by making an adverse finding against the applicant in the absence of evidence that the solicitor's statement in the Local Court was based on false instructions from the applicant. This error affected the assessment of the applicant's truthfulness and remorse, requiring resentencing. Upon resentencing, the offence was assessed at mid-range of seriousness, with a discount for a late plea, and appropriate recognition given to subjective factors including the applicant's low risk of reoffending, positive prospects of rehabilitation, acknowledgment of loss of career as significant extra-curial punishment, but not to adverse media publicity, resulting in a...

Court Disposition

Appeal allowed; sentence quashed; new sentence imposed

Orders

  • Grant leave to appeal
  • Allow the appeal