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Court of Criminal Appeal 16 September 2005

Stephen Barry Williams v R

[2005] NSWCCA 355

Also reported as (2005) 156 A Crim R 225
DrugsFirearms & weapons
APPEAL AGAINST SENTENCE MANUFACTURE PROHIBITED DRUG SUPPLY PROHIBITED DRUG POSSESS PROHIBITED WEAPON PSYCHIATRIC DISABILITY BREACH OF PEARCE DOCTRINE

Citation: R v Stephen Barry Williams [2005] NSWCCA 355
Court: NSW Court of Criminal Appeal
Date: 16 September 2005
Judges: Basten JA, Simpson J, Buddin J

Background

The applicant pleaded guilty in the District Court to four charges arising from a commercial drug operation he ran from his home in Granville in mid-2003. The charges included manufacturing methylamphetamine, possessing pseudoephedrine as a precursor to manufacture, supplying methylamphetamine, and possessing a replica pistol. A further supply offence was placed on a Form 1 (meaning it was taken into account at sentencing without a separate conviction being recorded).

The sentencing judge, Twigg DCJ, imposed an identical sentence of eight years imprisonment with a four-year non-parole period on each of the four counts. No attempt was made to identify an appropriate sentence for each offence individually, and the Form 1 offence appeared to be incorporated into all counts rather than one specific count.

The applicant sought leave to appeal against the severity of those sentences, and separately argued that the sentencing methodology was legally flawed.

  • Whether the sentencing judge breached the Pearce doctrine by imposing a global, undifferentiated sentence across multiple counts rather than sentencing for each offence individually
  • Whether the sentencing judge failed to comply with section 44 of the Crimes (Sentencing Procedure) Act 1999, which requires a court imposing imprisonment to set a specific non-parole period for each sentence
  • Whether the overall sentence was manifestly excessive, having regard to the applicant's significant psychiatric history and the guilty pleas entered
  • Whether the Form 1 offence was properly taken into account

Decision

The Court of Criminal Appeal found that the sentencing approach adopted below was legally flawed in two respects. First, imposing identical sentences on each count without any attempt to calibrate an appropriate penalty for each individual offence violated the principle established in Pearce v The Queen, which requires a court to sentence separately for each offence before considering totality. Second, section 44 of the Crimes (Sentencing Procedure) Act 1999, as amended from 1 February 2003, required the court to set a non-parole period for each sentence. The judge's global approach failed to do this.

The Court also accepted that the overall sentence was manifestly excessive. The applicant's subjective circumstances were substantial. He had been diagnosed with a psychiatric disorder from the age of nine, suffered repeated sexual abuse during hospitalisation as a child, and carried significant ongoing psychiatric disability. These factors warranted meaningful weight in the sentencing exercise.

Simpson J, writing the principal judgment, observed that the manufacture and supply charges were sufficiently serious to anchor the overall sentencing, and that the precursor possession offence was integral to the manufacture charge. The Court applied a twenty per cent discount for the guilty pleas, consistent with the approach taken below, and found special circumstances justifying a departure from the standard statutory ratio between the non-parole period and the balance of the sentence.

The Court declined to make any of the sentences cumulative. Simpson J reasoned that appropriate sentences on the manufacture and supply counts would adequately reflect the totality of the applicant's criminality, and that the weapon and precursor offences could be served concurrently.

Orders Made

  • Leave granted to appeal against severity of sentence imposed by the District Court on 16 September 2004
  • Applicant resentenced as follows:
  • On each of the manufacture and supply prohibited drug charges: non-parole period of three years and three months commencing 23 July 2003, expiring 22 October 2006; balance of term of two years and nine months, expiring 22 July 2009
  • On the possess precursor charge: fixed term of two years commencing 23 July 2003, expiring 22 July 2005
  • On the possess prohibited weapon charge: fixed term of eighteen months commencing 23 July 2003, expiring 22 January 2005
  • Earliest date eligible for release on parole: 22 October 2006

Key Takeaways

  • The Pearce doctrine requires a sentencing court to identify an appropriate sentence for each individual offence before addressing totality. Imposing a single undifferentiated global sentence across multiple counts is a sentencing error.
  • Under section 44 of the Crimes (Sentencing Procedure) Act 1999 (as amended from 1 February 2003), a court imposing imprisonment must set a non-parole period for each sentence; a blanket approach that treats all counts identically does not satisfy this obligation.
  • Significant psychiatric disability, particularly where it has its origins in childhood trauma and institutional abuse, was recognised by the Court of Criminal Appeal as a mitigating factor warranting genuine weight in the sentencing exercise.
  • A Form 1 offence must be taken into account in respect of a specific charge, not spread across all counts in an unattributed fashion.
  • In determining concurrency versus accumulation, the Court confirmed that where the principal offences adequately reflect the overall criminality, it is not erroneous to impose all sentences concurrently, provided the sentencing court has first assessed each offence on its own terms.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1), 24A(1), 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3, s 44
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Weapons Prohibition Act 1998 (NSW), Schedule 1, s 7(1)

Cases:
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Edwards (1996) 90 A Crim R 510
- R v Fahda [1999] NSWCCA 267
- R v Johnson [2005] NSWCCA 186
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Simpson [2001] NSWCCA 534