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7
Court of Criminal Appeal 16 February 2010

Williams v R

[2010] NSWCCA 15

Theft & property
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE GROUNDS FOR INTERFERENCE JUDGE ACTED ON WRONG PRINCIPLE OTHER MATTERS

Citation: Williams v R [2010] NSWCCA 15
Court: NSW Court of Criminal Appeal
Date: 16 February 2010
Judges: McClellan CJ at CL; Simpson J; Hidden J

Background

The applicant was convicted after trial of break, enter and steal at an isolated rural property in northern New South Wales, committed between 21 and 26 February 2004. The victim, an artist and art restorer, worked from a remote home accessible only by a winding dirt road and a four-wheel-drive vehicle. During a period of heavy rain that left the property inaccessible, the offender disconnected the generator powering the alarm system, broke in through thick church-timber doors fitted with deadlocks, and removed an extraordinary volume of items including approximately 25 paintings (some by significant artists), a computer, and personal effects estimated at $120,000 in value.

The stolen property was later discovered in a Queensland garage belonging to the mother of someone who had allowed the applicant to store it there. The applicant admitted responsibility to that person but denied involvement at a recorded interview with police, claiming he had acquired the items from markets, pawn shops, and a man in a pub.

The applicant was sentenced in the District Court to a non-parole period of 3 years 9 months with an overall term of 5 years. He sought leave to appeal, arguing first that the sentencing judge applied the wrong aggravating factor, and second that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by applying the statutory aggravating factor of "planned or organised criminal activity" under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, rather than the "professional planning, organisation and execution" formulation from the guideline judgment in R v Ponfield
  • Whether the overall sentence of 5 years (with a non-parole period of 3 years 9 months) was manifestly excessive

Decision

Ground 1: Wrong aggravating factor

The Court of Criminal Appeal accepted that the sentencing judge had erred. Section 21A(2)(n) applies where an offence forms part of a broader planned or organised criminal activity. Because this offence stood alone and was not shown to be part of a wider criminal enterprise, it did not satisfy that provision. The complementary mitigating factor in s 21A(3)(b) also only applies where an offence was not part of such activity, reinforcing that the provision is directed at offending connected to larger criminal schemes.

Despite this error, the court found the offending did bear the hallmarks of "professional planning" as that expression was used by Grove J in R v Ponfield. The execution of the break-in, including disabling the alarm by disconnecting the generator in an obscure location, targeting a remote property during enforced absence, and the nature of the goods taken, all demonstrated a level of planning that was far from opportunistic or amateurish. The court held that the error had not materially influenced the sentence actually imposed.

Ground 2: Manifest excess

The court rejected the submission that the sentence was manifestly excessive. The applicant had a directly relevant prior criminal history, including prior convictions for break and enter, and the sentencing judge was unable to find remorse, rehabilitation prospects, or an unlikely risk of reoffending. The offence was serious, involved a large volume of items with both monetary and sentimental value, and was carried out in a sophisticated manner. The court considered the sentence appropriate.

The court noted, without deciding the point, that Judicial Commission statistics showed the highest sentences actually imposed for this offence (maximum 8 years in the sample period) fell well below the statutory maximum of 14 years. McClellan CJ at CL observed this may suggest past sentencing practice had not reflected the range the legislature intended, a point raised in two earlier Court of Criminal Appeal decisions. Hidden J expressly reserved his position on this observation, noting it had not been addressed in argument.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The aggravating factor in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 ("planned or organised criminal activity") applies where an offence forms part of a broader criminal enterprise, not where a single, stand-alone offence happens to have been carefully planned.
  • "Professional planning, organisation and execution" in the Ponfield guideline sense does not require the offender to be a career criminal in any formal sense. Features such as disabling a security system, exploiting enforced absence, and targeting specific high-value goods can satisfy the description.
  • An error by a sentencing judge in selecting the precise aggravating factor will not automatically lead to a successful appeal where the error has not materially affected the sentence imposed.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reinforced that a prior record of relevantly similar offending, combined with absence of remorse and poor rehabilitation prospects, justifies a substantial sentence for serious break-and-enter offending.
  • McClellan CJ at CL flagged, citing Clinton v R and England & Phanith v R, that statistical sentencing patterns for this offence category may not reflect the range Parliament intended, though Hidden J declined to comment on that point as it was not argued.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n), 21A(3)(b)

Cases
- R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 (guideline judgment on break and enter sentencing)
- Clinton v R [2009] NSWCCA 276
- England & Phanith v R [2009] NSWCCA 274
- Fahs v R [2007] NSWCCA 26