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21
Court of Criminal Appeal 16 August 2012

Williams v R

[2012] NSWCCA 172

Also reported as (2012) 203 A Crim R 172
Homicide
CRIMINAL LAW APPEAL SENTENCING MURDER SENTENCE PRIOR TO MULDROCK V THE QUEEN WHETHER ERROR IN REGARD TO STANDARD NON

Citation: Williams v R [2012] NSWCCA 172
Court: NSW Court of Criminal Appeal
Date: 16 August 2012
Judge(s): Allsop P, Price J, S.G. Campbell J

Background

The applicant pleaded guilty to the murder of a young woman on or about 18 September 2009. The agreed facts established that the applicant strangled and then repeatedly struck the deceased with a shovel, causing death from blunt force trauma and asphyxiation. The killing was not premeditated but was clearly intentional and was followed by attempts to conceal the crime and mislead investigators.

The applicant was sentenced in the Supreme Court to a non-parole period of 16 years, 3 months and 23 days, with a balance of term of 5 years, 5 months and 8 days. He sought leave to appeal against that sentence on four grounds.

The standard non-parole period for murder under the Crimes (Sentencing Procedure) Act 1999 is 20 years, with a maximum of life imprisonment. A 25 per cent utilitarian discount was applied in recognition of the applicant's guilty plea.

  • Whether the sentencing judge erred in the manner she applied the standard non-parole period framework, particularly given that the sentencing occurred before the High Court's decision in Muldrock v The Queen [2011] HCA 39, which overruled the approach prescribed by R v Way
  • Whether the sentencing judge erred by reducing the weight given to the applicant's good character because of his prior illicit drug use
  • Whether the sentencing judge gave sufficient weight to the applicant's youth, the length of his anticipated incarceration, and his good character when assessing prospects of rehabilitation
  • Whether the sentence was manifestly excessive in all the circumstances

Decision

Ground 1: Standard non-parole period and the Muldrock question. The sentencing judge had carefully followed the then-binding approach prescribed by R v Way and elaborated in subsequent Court of Criminal Appeal decisions, including characterising the offence as "just above the mid-range" of objective seriousness. Allsop P acknowledged that this approach, as interpreted and applied by the lower courts, involved a degree of tethering to the standard non-parole period requiring justification for any departure from it, and that Muldrock subsequently confirmed Way was wrongly decided. However, all three judges declined to resolve definitively whether the sentencing judge's approach constituted operative error, because each was independently unpersuaded that a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.

Grounds 2 and 3: Good character and illicit drug use; rehabilitation. The court rejected the argument that the sentencing judge erred in limiting the weight attributed to the applicant's good character by reason of his prior illicit drug use. The court also rejected the ground that insufficient weight was given to the applicant's youth and rehabilitation prospects, finding that her Honour had adequately balanced those considerations against the serious objective circumstances of the offence.

Ground 4: Manifest excess. Price J reviewed comparable cases and concluded the sentence was within the legitimate range of the sentencing discretion. The brutality of the attack, including the applicant continuing to strike the deceased after having already strangled her, significantly weighed against the applicant's subjective case, which was otherwise described as strong. The court found no unreasonable or plainly unjust outcome, with Allsop P going further to describe the sentence as "both just and proportionate."

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence imposed under the Way methodology before Muldrock is not automatically vitiated. The relevant question remains whether a lesser sentence is warranted in law under s 6(3) of the Criminal Appeal Act 1912.
  • Where all members of the court are independently satisfied that no lesser sentence is warranted, it is unnecessary to resolve whether the sentencing judge's application of Way constituted operative error.
  • A sentencing court's characterisation of an offence as "just above the mid-range" of objective seriousness reflects the then-prevailing orthodoxy; Allsop P observed that such expressions imply a degree of precision that may not survive scrutiny after Muldrock, but that reasons should be assessed by a fair reading in the context of the perceived orthodoxy at the time.
  • Prior illicit drug use may legitimately reduce the weight otherwise accorded to a finding of good character, and the court found no error in the sentencing judge taking that factor into account.
  • The spontaneity of a killing does not automatically reduce its objective seriousness, particularly where the offender continued the attack after an initial act of violence had already rendered the victim defenceless.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(e), 21A(3)(f), 21A(3)(g), 21A(3)(h), 54B(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- Bolt v R [2012] NSWCCA 50
- Butler v R [2012] NSWCCA 23
- Yang v R [2012] NSWCCA 49
- Zreika v R [2012] NSWCCA 44
- Aoun v R [2007] NSWCCA 292
- Majid v R [2010] NSWCCA 121
- R v Koloamatangi [2011] NSWCCA 288
- R v Baker [2000] NSWCCA 85
- Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629