R v Windle [2012] NSWCCA 222

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Windle [2012] NSWCCA 222 Hearing dates: 28 June 2012 Decision date: 16 October 2012 Before: Basten JA at [1]; Price J at [61]; S G Campbell J at [62] Decision: (1) Allow the appeal and set aside the sentence imposed by the District Court on 15 December 2011. (2) 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. (3) Direct that the sentence commence on 29 October 2011. (4) Note that the first date on which the offender will be eligible for release on parole is 28 October 2015. The sentence will expire on 28 February 2017. Catchwords: CRIMINAL LAW - Director's appeal against sentence - offence committed while in custody and eligible for parole - whether error for sentencing judge to backdate sentence to last opportunity to be considered for parole - whether court required to take into account period in custody after parole revoked for offence - Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24 and 47

CRIMINAL LAW - Director's appeal against sentence - attempt to strangle with intent to murder - leniency for revelation of intention by offender - whether extent of leniency depends on extent of revelation - whether numerical discount should be stated - discussion of R v Ellis (1986) 6 NSWLR 603

CRIMINAL LAW - Director's appeal against sentence - attempt to strangle with intent to murder - mental illness - applicant's mental illness did not establish defence of insanity - whether principle of retribution in sentencing diminished in cases of mental illness - whether mental illness relevant to gravity of offence - whether increase in sentence for protection of society is speculation leading to arbitrary result - whether sentence incorporating protection of society can exceed otherwise appropriate sentence - whether mental illness increases the need for personal deterrence and protection of the public - discussion of Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465