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Court of Criminal Appeal 8 February 2013

Braedon WILLIAMS v R

[2013] NSWCCA 15

Theft & property
CRIMINAL LAW AGGRAVATED BREAK, ENTER AND STEAL OFFENDERS PARITY/PROPORTIONALITY QUASI CUSTODY

Citation: Braedon Williams v R [2013] NSWCCA 15
Court: NSW Court of Criminal Appeal
Date: 8 February 2013
Judge(s): McClellan CJ at CL, Hidden J, Adamson J

Background

The appellant pleaded guilty in the District Court to aggravated break, enter and steal under s 112(2) of the Crimes Act 1900, with a further offence of the same kind taken into account on a Form 1. Both offences were committed in the Albury area in the early hours of 12 February 2011 alongside two co-offenders, Nathan Sullivan and Eric Williams. The offences involved break-ins at a service station and a supermarket, with goods totalling approximately $3,400 in value stolen.

The sentencing judge imposed a total term of 4 years imprisonment, with a non-parole period of 2 years and 9 months. The judge also purported to direct that, upon release on parole, the appellant be placed directly into a full-time drug rehabilitation program and not be permitted to be at large. The appellant was 23 years old at sentencing and had a substantial criminal record, a history of substance abuse, and a disturbed upbringing.

The co-offenders received different sentences. Sullivan received an effective non-parole period of 3 years. Eric Williams, who had completed a 12-month residential rehabilitation program while on bail, received a suspended sentence of 2 years. The significant disparity between the appellant's sentence and those of his co-offenders formed the basis of the appeal.

  • Whether the sentencing judge erred by failing to reduce the sentence in anticipation of the appellant undertaking a residential rehabilitation program (the quasi-custody ground).
  • Whether a comparison of the appellant's sentence with those imposed on his co-offenders gave rise to a justifiable sense of grievance on grounds of parity or disparity.

Decision

Ground 1: Quasi-Custody

The Court rejected the quasi-custody argument on two distinct grounds. First, because the appellant's total sentence exceeded 3 years, the sentencing judge had no power to direct the conditions of any parole order. That power rests with the Parole Authority under ss 134 to 135 of the Crimes (Administration of Sentences) Act 1999, not the sentencing court. The purported direction was therefore beyond jurisdiction, even though it was understandable given the recommendation from the Probation and Parole officer.

Second, the established principle allowing credit for quasi-custody applies where an offender has already completed a residential rehabilitation program before sentencing. In all the authorities cited, the sentencing court was able to assess the actual benefit of a completed program and its conditions. The Court found no authority supporting a reduction in sentence based on a program not yet undertaken, and declined to extend the principle to that circumstance.

Ground 2: Parity

On the comparison with Sullivan, the Court found no marked disparity warranting intervention. The sentencing judge had considered both men in the same proceeding and was plainly conscious of their differing subjective circumstances, including Sullivan's commission of the offences while subject to conditional liberty and his poor rehabilitation prospects.

On the comparison with Eric Williams, the Court accepted that the difference in outcome was marked. However, it held that Judge Frearson had been well aware of the sentences imposed on the appellant and Sullivan, and was entitled to treat Eric Williams' case as exceptional. Eric Williams had genuinely completed a substantial rehabilitation program and demonstrated real change. The marked difference in sentence was therefore explicable and did not establish that the appellant had been unfairly treated.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The quasi-custody principle, which allows credit on sentence for time spent in full-time residential rehabilitation, applies where the program has been completed before sentencing. The Court of Criminal Appeal declined to extend it to anticipated or prospective programs not yet undertaken.
  • Where a total sentence exceeds 3 years, the sentencing court has no power to direct the conditions of any parole order. That authority rests exclusively with the Parole Authority under the Crimes (Administration of Sentences) Act 1999.
  • Parity between co-offenders does not require identical outcomes. A marked difference in sentence can be justified where one offender demonstrates exceptional rehabilitation and the sentencing judge is aware of the sentences imposed on co-offenders.
  • In dismissing the parity ground, the Court confirmed that the question is whether an objective comparison of sentences conveys that justice has not been done, not simply whether outcomes differ.
  • A sentencing court acting on the recommendation of a Probation and Parole officer does not thereby acquire powers it does not otherwise possess under statute.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 50, 51
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 134, 135

Cases:
- Renshaw v R [2012] NSWCCA 91
- R v Campbell [1999] NSWCCA 76
- Muldrock v The Queen [2011] HCA 39, 244 CLR 120
- Ng v R [2011] NSWCCA 227, 214 A Crim R 191