WILCOX v REGINA [2011] NSWCCA 42

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: WILCOX v REGINA [2011] NSWCCA 42 Hearing dates: Friday 8 October 2010 Decision date: 22 March 2011 Before: McClellan CJ at CL at 1 Hall J at 2 Barr AJ at 3 Decision: (1) Appeal against convictions dismissed. (2) Grant leave to appeal against the sentences and allow the appeal in part. (3) Vary the sentence for the Smiths Lakes offence so that it will be taken to have commenced on 17 May 2008 and will expire on 16 May 2014. (4) Quash the sentence for the Tahmoor offence and, taking into account the Nambucca Heads offence, set a non-parole period of 8 years, commencing on 17 May 2010 and expiring on 16 May 2018, and a balance of term of 4 years, expiring on 16 May 2022. (5) Declare that the appellant will become eligible for parole on 16 May 2018. Catchwords: CRIMINAL LAW - appeal against conviction - multiple armed robberies - coincidence evidence - evidence correctly set out in notice - conflicting witness identification evidence - jury obliged to consider that evidence - no injustice in admitting that evidence - whether there was a rational view consistent with innocence for the jury to consider - no risk of unfair prejudice or miscarriage of justice - conviction appeal dismissed Sentence appeal - trial judge applied standard non-parole period to s.97(2) offences - question is whether sentences excessive - trial judge must consider objective seriousness - care to be taken when considering Judicial Commission Statistics - maximum sentence determined by Parliament, not statistics - analysis of comparative sentences - sentence was impermissibly high - adjustment through accumulation Legislation Cited: Crimes Act 1990 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Evidence Act 1995 Cases Cited: Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194 R v Hayes [2001] NSWCCA 410 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Vuni [2006] NSWCCA 171 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Zhang [2005] NSWCCA 437 Category: Principal judgment Parties: David Richard WILCOX v REGINA Representation: Counsel: C: V Lydiard A: In Person (for conviction appeal) A: P Strickland SC (for severity appeal) Solicitors: C: S Kavanagh A: S E O'Connor (for severity appeal) File Number(s): 2006/9624 Decision under appeal Date of Decision: 2008-12-12 00:00:00 Before: Coolahan DCJ File Number(s): 2006/9624