Citation: Williams v Regina; Saunders v Regina [2006] NSWCCA 33
Court: New South Wales Court of Criminal Appeal
Date: 23 February 2006
Judge(s): Basten JA, Howie J, Hall J (Hall J delivered the leading judgment; Basten JA and Howie J agreed)
Background
Two co-offenders, Williams and Saunders, were convicted after a jury trial of aggravated kidnapping in company, contrary to s 86(2)(a) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment. The conviction arose from an incident on 15 December 2002 at Narara, NSW, in which the two men detained a 15-year-old boy for approximately two hours to find out who had assisted him in breaking into Saunders' garage two days earlier. During that earlier break-in, the victim had stolen a motorcycle and inadvertently led police to discover cannabis plants Saunders was cultivating. The sentencing judge found the offenders had no intention of hurting the victim but accepted the ordeal was frightening and intimidating.
Each applicant was sentenced in the District Court on 18 February 2005 to four years imprisonment with a non-parole period of two years. Williams' sentence commenced on 30 August 2004, and Saunders' on 24 August 2004, each accounting for time already served in pre-sentence custody.
Both applicants sought leave to appeal to the Court of Criminal Appeal. Saunders challenged the severity of his sentence. Williams raised three distinct grounds: that the sentencing judge failed to give him a discount for an offer to plead guilty made before trial, that the equal sentences created a justifiable sense of grievance given differences in their respective roles and circumstances, and that the sentence was manifestly excessive.
Legal Issues
- Whether Williams was entitled to a sentencing discount for a pre-trial offer to plead guilty to the offence of which he was ultimately convicted (the lesser, alternate count rather than the charged offence).
- Whether imposing the same sentence on Williams and Saunders gave rise to a justifiable sense of grievance, given differences in their objective criminality and subjective circumstances.
- Whether the sentences imposed on either applicant were manifestly excessive.
- Whether the sentencing judge misidentified the applicable maximum penalty (a ground raised by Saunders but ultimately not pressed).
Decision
On Williams' plea-discount ground, the Court found that the offer to plead was made to the charge of specially aggravated kidnapping, not to the aggravated kidnapping charge on which he was ultimately convicted. The Court accepted that this distinction affected the weight properly given to the offer. However, the Court still found that the sentencing judge had not adequately accounted for the offer, and this error, combined with other mitigating factors including Williams' good prior character and rehabilitation prospects, led the Court to intervene and re-sentence him.
On the parity ground, the Court examined several differences between the two offenders. Williams had a shorter involvement in the offence (arriving at 4:00 pm, compared to Saunders who had been involved from midday), good prior character, and no related offending on a Form 1. In contrast, Saunders had a greater personal motivation for the offending (the break-in exposed his cannabis cultivation), was on bail at the time of the kidnapping for the drug offences, and had additional offences taken into account at sentence. The Court accepted that these differences were sufficient to justify a disparity in sentences, and that the equal sentences imposed below gave Williams a justifiable sense of grievance.
The Court re-sentenced Williams to a non-parole period of 18 months commencing 30 August 2004 (expiring 28 February 2006), with a balance of term of 12 months expiring 28 February 2007. This reflected a finding of special circumstances based on his good prior character and rehabilitation prospects, and also gave effect to time spent in custody between his arrest on 4 January 2003 and his release on bail on 19 February 2003.
For Saunders, the Court dismissed the appeal. It identified four factors supporting the sentence: his personal motivation linking the drug cultivation to the kidnapping, the Form 1 drug offences being taken into account concurrently, the fact that he was on bail at the time of the kidnapping, and a finding that the characterisation of him as a person of unblemished character prior to the cultivation charge was arguably generous given the evident sophistication of his drug growing operation. The Court held the four-year sentence with a two-year non-parole period was within the sentencing judge's discretion and no error was demonstrated.
Orders Made
Williams:
- Sentences set aside and applicant re-sentenced by the Court of Criminal Appeal.
- Special circumstances found, having regard to good prior character and rehabilitation prospects.
- Credit given for time in custody from 4 January 2003 to 19 February 2003.
- Re-sentenced to a non-parole period of 18 months, commencing 30 August 2004 and expiring 28 February 2006, with eligibility for parole on that date.
- Balance of term of 12 months to commence 1 March 2006 and expire 28 February 2007.
Saunders:
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Where co-offenders receive identical sentences, a court will examine whether differences in objective criminality and subjective circumstances are sufficient to give the more favourably placed offender a justifiable sense of grievance; in this case, those differences were found to be material.
- A pre-trial offer to plead guilty to a lesser alternate charge carries less weight than an offer to plead to the principal charge, but may still be a relevant mitigating factor the sentencing judge must consider.
- Being on bail at the time of committing a further offence is a material aggravating factor in sentence, as affirmed in Saunders' case.
- In dismissing Saunders' appeal, the Court of Criminal Appeal confirmed that additional offending taken into account on a Form 1, even where fully concurrent, is a legitimate factor in assessing the overall sentence for the principal offence.
- No error is established simply because two co-offenders receive different sentences; the critical question is whether the objective and subjective differences between them justify any disparity.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 86(2)(a), 86(3)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- Curry [2002] NSWCCA 109
- Lowe (1984) 154 CLR 606
- Johnson [2003] NSWCCA 129
- Oinonen [1999] NSWCCA 310
- Pennisi [2001] NSWCCA 326
- Cardoso [2003] NSWCCA 15
- Kelly [2005] NSWCCA 280
- Collett & Anor (CCA, unreported, 7 June 1974)