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9
Court of Criminal Appeal 24 March 2005

R v Anthony Robert Williams

[2005] NSWCCA 99

Homicide
SENTENCING

Citation: R v Anthony Robert Williams [2005] NSWCCA 99
Court: NSW Court of Criminal Appeal
Date: 24 March 2005
Judges: Tobias JA, Buddin J, Hall J

Background

The applicant was tried in the Supreme Court for the murder of his de facto partner at Kingswood on 17 November 2001. The jury acquitted him of murder but returned a verdict of guilty of manslaughter. The sentencing judge imposed 14 years imprisonment with a non-parole period of 10 and a half years, both terms commencing on 24 December 2001.

The facts were serious. Evidence from neighbours described the applicant striking the deceased with a heavy steel weight bar in a car park. The applicant gave a different account at trial, claiming the deceased had attacked him first, but the sentencing judge rejected that account as not credible. The relationship had a history of violence, and the applicant had a significant history of drug use, including amphetamines.

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing that the sentencing judge had made errors in determining the factual basis upon which the jury returned its manslaughter verdict, and had improperly used aggravating factors that were already elements of the offence.

  • Whether the sentencing judge erred in determining the factual basis upon which the jury returned a verdict of manslaughter rather than murder
  • Whether the sentencing judge improperly treated as aggravating factors matters that were already elements of the offence of manslaughter
  • Whether, if those errors were established, a lesser sentence was warranted

Decision

The Court of Criminal Appeal identified a series of errors in the sentencing judge's approach. The primary concern was that the sentencing judge had not correctly identified the basis upon which the jury returned its manslaughter verdict. Determining that basis matters because it defines the factual foundation upon which the sentence must be built. Getting it wrong risks sentencing the offender for conduct the jury may not have found proven to the requisite standard.

The Court also found that the sentencing judge had improperly treated as aggravating factors certain matters that were already elements of the offence itself. Counting such matters twice inflates the assessment of the offence's gravity beyond what the law permits.

The Court concluded that the accumulation of these errors warranted intervention. It accepted that the offence was one of considerable objective gravity, as it involved an intentional killing with either intent to kill or intent to inflict grievous bodily harm. However, the gravity was moderated by the absence of planning and by a measure of provocation offered by the deceased in the period leading up to the fatal incident. The applicant had little of a subjective nature to advance in mitigation, and his criminal history counted against him.

Applying the principle established in cases such as R v Blacklidge that every manslaughter involves the felonious taking of a human life, the Court re-sentenced the applicant to a lesser but still substantial custodial term. No special circumstances warranting a variation to the standard ratio between the non-parole period and the total sentence were established.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentence imposed at first instance quashed
  • Applicant sentenced to 12 years imprisonment commencing 24 December 2001, with a non-parole period of 9 years
  • Non-parole period to expire on 23 December 2010, at which point the applicant becomes eligible for release on parole

Key Takeaways

  • A sentencing court must correctly identify the factual basis upon which a jury returned its verdict before proceeding to sentence; failure to do so constitutes a sentencing error capable of vitiating the sentence on appeal.
  • Aggravating factors that are also elements of the offence for which an offender is being sentenced cannot be used again to increase the sentence; to do so amounts to impermissible double-counting.
  • The Court of Criminal Appeal confirmed that every manslaughter conviction involves the felonious taking of a human life, and that this is the starting point for assessing the objective gravity of the offence.
  • Mitigating factors such as absence of planning and provocation by the deceased are relevant to moderating the objective gravity of a manslaughter, but they do not operate in isolation from the overall circumstances of the offending.
  • Where multiple sentencing errors are identified collectively, even if each error standing alone might not have been decisive, their accumulation can be sufficient to justify appellate intervention and re-sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act (NSW)

Cases
- House v The King (1936) 55 CLR 499
- R v Berg [2004] NSWCCA 300
- R v Blacklidge (NSWCCA, 12 December 1995, unreported)
- R v Cramp [2004] NSWCCA 264
- R v Isaacs (1997) NSWLR 374
- R v Sandford (1994) 72 A Crim R 160
- R v Wickham [2004] NSWCCA 193
- Stingel v The Queen (1990) 171 CLR 312