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Court of Criminal Appeal 17 November 2011

Williams v R

[2011] NSWCCA 244

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING CRIMINAL CASE CONFERENCING TRIAL ACT PARITY BETWEEN CO OFFENDERS

Citation: Williams v R [2011] NSWCCA 244
Court: NSW Court of Criminal Appeal
Date: 17 November 2011
Judges: Beazley JA, James J, Fullerton J

Background

The appellant had pleaded guilty in the District Court to three offences: armed robbery, robbery in company, and escape from lawful custody. The armed robbery involved a prolonged and violent attack on a taxi driver at a unit block, carried out with two co-offenders. The robbery in company occurred after the appellant escaped from custody and involved a second taxi driver being punched, robbed, and struck with a coin dispenser inside his vehicle.

The sentencing judge initially sentenced the appellant on 25 June 2010, then set aside those sentences and re-sentenced on 9 September 2010 to correct an error relating to a finding of special circumstances. The resulting aggregate sentences were total head sentences of nine and a half years with a combined non-parole period and fixed term of six years four months.

The appellant sought leave to appeal, arguing that the sentences were excessive. The principal ground was that the sentencing judge had failed to apply the mandatory sentencing discount available under the Criminal Case Conferencing Trial Act 2008, and that parity with a co-offender's sentence had not been maintained.

  • Whether the sentencing judge was required to apply a sentencing discount under the Criminal Case Conferencing Trial Act 2008, and whether a failure to do so constituted error
  • Whether the sentences imposed were disproportionate to those received by the co-offender Davies for the same offences, raising a parity ground of appeal
  • Whether any demonstrated error warranted the Court of Criminal Appeal intervening to re-sentence the appellant

Decision

The Court found that the sentencing judge had failed to apply the discount mandated by the Criminal Case Conferencing Trial Act 2008. That legislation, applicable in the relevant trial court, required a sentencing reduction where a case conference had taken place and a guilty plea followed. The failure to apply this statutory discount constituted an error of law that infected the sentences.

On the parity ground, the Court found a disparity between the appellant's sentences and those imposed on the co-offender Davies that was not justified by any material difference in criminality. The appellant's role, while serious, did not warrant a significantly heavier sentence than Davies received, particularly given the mandatory discount had also not been applied to the appellant's benefit.

The Court accepted that the offences were serious and that the appellant's criminality was properly characterised as above mid-range. Nonetheless, the combined effect of the statutory discount error and the unjustified parity gap required the sentences to be quashed and fresh sentences imposed. The new sentences reflected both the required statutory discount and a principled comparison with the co-offender's outcome.

Orders Made

  • Leave to appeal against sentences imposed by Judge Knox on 9 September 2010 granted
  • Appeal against sentence allowed
  • Sentences imposed on 9 September 2010 quashed
  • In lieu thereof, the appellant was sentenced as follows:
  • Armed robbery: non-parole period of 2 years 5 months (commencing 1 September 2008, expiring 31 January 2011) and balance of term of 2 years 5 months (expiring 30 June 2013)
  • Robbery in company: non-parole period of 3 years 4 months (commencing 1 March 2009, expiring 30 June 2012) and balance of term of 2 years 8 months (expiring 28 February 2015)
  • Escape from lawful custody: fixed term of 6 months (commencing 1 July 2012, expiring 31 December 2012)
  • Earliest date of eligibility for parole: 31 December 2012

Key Takeaways

  • The Criminal Case Conferencing Trial Act 2008 imposed a mandatory sentencing discount where its procedural requirements were satisfied; a sentencing judge's failure to apply that discount constituted an error of law justifying appellate intervention.
  • Parity between co-offenders is not an absolute principle, but a disparity in sentences that is not explained by a material difference in culpability or relevant personal circumstances is a recognised ground of appeal, affirming the approach in Postiglione v The Queen (1995-1996) 189 CLR 295.
  • In re-sentencing, the Court of Criminal Appeal recalibrated both the individual sentences and their cumulative structure to maintain an overall ratio between non-parole periods and head sentences consistent with the sentencing judge's own finding of special circumstances.
  • Where a statutory discount applies, it operates as a floor on the benefit an offender must receive, not merely a factor in the exercise of general sentencing discretion.
  • The seriousness of the underlying offending, including the use of violence against taxi drivers in separate incidents, was acknowledged throughout; the reduction in sentence reflected legal error rather than any reassessment of the gravity of the conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 310D(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 57
- Criminal Case Conferencing Trial Act 2008 (NSW)

Cases
- Do v R [2010] NSWCCA 182
- Greer v R [2011] NSWCCA 40
- Kim Chompeay v R [2011] NSWCCA 96
- LJ v R [2010] NSWCCA 289
- Postiglione v The Queen (1995-1996) 189 CLR 295
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346
- R v Murchie (1999) 108 A Crim R 482
- Sutton v R [2004] NSWCCA 225
- Tran v R [2010] NSWCCA 183
- Veen v The Queen (No 2) (1987-1988) 164 CLR 465