Citation: Regina v S B Williams [2004] NSWCCA 246
Court: New South Wales Court of Criminal Appeal
Date: 29 July 2004
Judge(s): Bryson JA; James J; Kirby J
Background
The applicant was sentenced in the District Court at Broken Hill following two separate indictments. The first arose from a violent brawl at a Wilcannia cafe on 7 April 2002, in which the applicant produced a knife during an altercation and wounded the shopkeeper, who had armed himself with a baseball bat. The applicant was convicted of malicious wounding with intent to cause grievous bodily harm (carrying a maximum of 25 years' imprisonment) and affray.
The second indictment arose from two assaults the applicant committed on fellow inmates at the Broken Hill Correctional Centre approximately six weeks later, after his parole had been revoked. He pleaded guilty in the Local Court to two counts of assault occasioning actual bodily harm and was committed to the District Court for sentencing.
Finnane DCJ sentenced the applicant to 7.5 years imprisonment with a four-year non-parole period on the wounding count, and nine months (concurrent) on each gaol assault count. The total effective sentence was eight years with a non-parole period of four years and eight months. The applicant sought leave to appeal, arguing the sentence on the wounding count was manifestly excessive.
Legal Issues
- Whether the sentence imposed on the malicious wounding count was manifestly excessive
- Whether the sentencing judge failed to apply an appropriate discount for the applicant's guilty plea on that count
- Whether the sentences imposed for the gaol assaults were inadequate or should have been accumulated rather than run concurrently
- Whether the Court of Criminal Appeal had power under s 7(1A) of the Criminal Appeal Act 1912 to adjust sentences on counts not the subject of the appeal
Decision
The Court divided on the central question of whether the wounding sentence was excessive. Bryson JA dissented on this point, finding the starting point of ten years and the sentence ultimately imposed were both well within the range of sound judicial discretion. His Honour observed that the applicant had introduced a knife into an already dangerous confrontation, and that the prescribed maximum of 25 years reflected the seriousness of such conduct. He would have dismissed the appeal on this ground.
The majority (Kirby J, with whom James J agreed) found that the sentencing judge had erred in failing to allow a proper discount for the applicant's guilty plea on the wounding count. Kirby J considered that a 20 per cent discount was appropriate, and that the overall sentence was therefore manifestly excessive. The majority also found special circumstances warranting a longer parole period than the statutory default, given the applicant's entrenched problems with alcohol, drugs, and anger management.
On the question of the gaol assault sentences, the majority did not find them inadequate but noted that their commencement dates required adjustment as a consequence of the reduction to the wounding sentence. Kirby J also examined the Court's power under s 7(1A) of the Criminal Appeal Act 1912 to vary sentences on counts not formally the subject of the appeal, concluding that such power existed and should be exercised to ensure the sentences remained coherent as a whole.
Orders Made
- Leave to appeal granted.
- Appeal allowed.
- The sentence on count 1 of the first indictment (malicious wounding with intent) quashed and replaced with 6 years imprisonment, commencing 16 October 2002 and expiring 15 October 2008, with a non-parole period of 3 years and 2 months, commencing 16 October 2002 and expiring 15 December 2005.
- The concurrent 9-month sentences on counts 1 and 2 of the second indictment (gaol assaults) varied to commence 16 May 2005 and expire 15 February 2006.
Key Takeaways
- A sentencing judge's failure to apply an adequate discount for a guilty plea can constitute an error warranting appellate intervention, even where other aspects of the sentencing exercise disclose no identifiable error of principle.
- The Court of Criminal Appeal confirmed it holds power under s 7(1A) of the Criminal Appeal Act 1912 to adjust sentences on counts not formally appealed, where doing so is necessary to maintain the coherence and totality of the overall sentence structure.
- Special circumstances justifying a longer non-parole period (and therefore a shorter parole component than the statutory default) can be established where an offender has chronic substance abuse and anger management issues that will require intensive post-release supervision.
- Bryson JA's dissent illustrates that the assessment of a starting point for a serious offence such as malicious wounding is itself a matter of significant judicial discretion, and appellate courts will not lightly interfere with that starting point merely because a different figure might have been chosen.
- In dismissing the argument that the gaol assault sentences were inadequate, the majority confirmed that concurrent sentences for offences committed in custody do not automatically require accumulation on the sentences already being served.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33, 59(1), 93C
- Criminal Appeal Act 1912 (NSW), s 7(1A)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Fernando (1992) 76 A Crim R 58
- R v Thomson (2000) 49 NSWLR 383
- Fernando (No 2) [2002] NSWCCA 28
- Pearce v The Queen (1998) 194 CLR 610
- R v Hayes [2001] NSWCCA 358
- R v Shepherd [2003] NSWCCA 351
- R v Goundar (2001) 127 A Crim R 331
- R v Morgan (1993) 70 A Crim R 368
- R v Salameh (NSW CCA, 9 June 1994, unreported)
- R v Trevenna [2004] NSWCCA 43
- Veen (No 2) (1988) 164 CLR 465
- R v Itamua [2000] NSWCCA 502