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Court of Criminal Appeal 18 July 2013

Williams v R

[2013] NSWCCA 168

Assault & violencePublic order & justice offences
CRIMINAL LAW ATTEMPTED CONTRACT KILLING MERITS OF APPLICATION CONSIDERED PARITY APPLICATION REFUSED

Citation: Williams v R [2013] NSWCCA 168
Court: NSW Court of Criminal Appeal
Date: 18 July 2013
Judge(s): Ward JA; Fullerton J; Schmidt J

Background

The applicant pleaded guilty to causing grievous bodily harm with intent to murder under s 27 of the Crimes Act 1900, arising from his role in an attempted contract killing in February 2006. He was one of four participants in a plan to murder a woman's former partner, orchestrated by that woman (the co-offender) who had recruited the applicant. The applicant in turn recruited the person who physically carried out the attack, manipulating that person through a false claim that the victim was a paedophile.

In March 2008, the applicant was sentenced to 10 years imprisonment with a non-parole period of 7 years, reflecting a 45 per cent discount for his early plea and assistance to authorities. His co-offender, charged with soliciting to murder under s 26 of the Crimes Act, was initially sentenced to 10 years with a 6-year non-parole period. The Crown successfully appealed that sentence as manifestly inadequate, and she was re-sentenced to 13 years and 6 months with a non-parole period of 10 years, though her re-sentence was moderated by the principle of double jeopardy.

Nearly five years after his sentence, the applicant sought an extension of time to apply for leave to appeal against the severity of his sentence. The sole ground advanced was parity: he claimed a justifiable sense of grievance arising from the disparity between his sentence and the co-offender's re-sentence.

  • Whether the Court should grant an extension of time to bring a leave application filed approximately five years out of time
  • Whether the merits of the parity argument justified granting the extension
  • Whether the applicant had a justifiable sense of grievance given the difference between his sentence and the co-offender's re-sentence
  • Whether a co-offender's sentence, which was reduced on re-sentence due to the double jeopardy principle, is suitable as a comparator for parity purposes

Decision

The Court refused the extension of time, finding that the delay was not adequately explained and that the underlying parity argument lacked merit. The application had been triggered by Legal Aid's review of the file following Muldrock v R, but no Muldrock error was identified and only the parity ground was ultimately pressed. The Court applied the approach in Lowe v R [2013] NSWCCA 141, where an appeal similarly prompted by a Legal Aid Muldrock review and raising parity was refused, noting that the absence of a satisfactory explanation for the delay and the public interest in timely appeals weighed against granting leave.

On the merits, the Court found no justifiable sense of grievance. The co-offender's re-sentence had been moderated by the principle of double jeopardy, which operated to reduce what would otherwise have been a higher sentence following the Crown's successful appeal. The Court held that a sentence lenient by operation of law in those circumstances was unsuitable as a comparator for parity purposes.

The Court also rejected the argument that the Crown had an obligation to inform the applicant of the co-offender's sentence and verdict. The case of R v Tan, where a court directed that co-offenders be notified of a re-sentencing outcome, was distinguished on the basis that it arose from an identifiable sentencing error common to all offenders. No such common error existed here; the inadequacy of the co-offender's initial sentence was particular to her, not shared.

Even if some degree of disparity had been established, the Court indicated it would not have reduced the applicant's sentence to a level that would be wholly inadequate given the seriousness of his offending. The Court applied the principle from Green v R; Quinn v R that there is no obligation to reduce a sentence to an inadequate level merely because a co-offender received one.

Orders Made

  • The application for extension of time to appeal was refused.

Key Takeaways

  • A co-offender's sentence that was reduced on re-sentence by operation of the double jeopardy principle may be unsuitable as a comparator for parity purposes, because its leniency results from the operation of law rather than an assessment of comparable culpability.

  • Refusing an extension of time, the Court of Criminal Appeal confirmed that a lengthy, unexplained delay weighs heavily against granting leave, even where the application is framed around a substantive sentencing principle such as parity.

  • An appeal triggered by a Legal Aid file review for Muldrock purposes, where no Muldrock error is ultimately identified, does not automatically provide a satisfactory explanation for delay in bringing a separate parity ground.

  • Under the principle confirmed in Green v R; Quinn v R, the existence of unjustified disparity does not create an obligation to reduce a sentence to an inadequate level; the court retains a discretion and may decline to intervene where the result would be a manifestly insufficient sentence.

  • No obligation exists on the Crown to proactively notify a co-offender of the outcome of another offender's sentencing proceedings, and the absence of such notification does not, of itself, provide a sufficient basis for an extension of time.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 26, 27, 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54A, 68A

Cases:
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Bowtell v R [2004] NSWCCA 17
- Edwards v R [2009] NSWCCA 199
- El Hassan v R [2003] NSWCCA 252
- Flack v R [2011] NSWCCA 167
- Green v R; Quinn v R [2011] HCA 49; 244 CLR 462
- Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
- Kauwenberghs v R [2008] NSWCCA 98; (2008) 186 A Crim R 197
- Louizos v R [2009] NSWCCA 71; (2009) 194 A Crim R 223
- Lowe v R [2013] NSWCCA 141
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Ng v R [2011] NSWCCA 227; 214 A Crim R 191
- Osman v R [2008] NSWCCA 157
- Phanith v R [2009] NSWCCA 274
- R v Christie [2000] NSWCCA 354
- R v Tan (NSW Court of Criminal Appeal, 11 March 2004, Unreported)