AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 5 November 2013

Willmott v R

[2013] NSWCCA 244

Homicide
CRIMINAL LAW APPEAL SENTENCING MURDER APPEAL SENTENCING

Citation: Willmott v R [2013] NSWCCA 244
Court: NSW Court of Criminal Appeal
Date: 5 November 2013
Judge(s): Basten JA (with Adams J and Latham J agreeing)

Background

The appellant pleaded guilty to the murder of a man at a caravan park on the Central Coast of New South Wales on 13 October 2010. The killing followed a dispute that began inside a cabin where the parties had been drinking. The deceased had initially demanded that the appellant leave, and then went looking for the appellant to confront him physically. The appellant, having armed himself with multiple knives, returned to confront the deceased and launched a frenzied attack.

In July 2012, Price J in the Supreme Court sentenced the appellant to 28 years imprisonment, comprising a non-parole period of 21 years commencing from the date of custody, with a balance of term of seven years. The sentencing judge applied a 20 per cent discount for the early guilty plea, which meant the undiscounted starting point was 35 years.

The appellant sought leave to appeal on the sole ground that the sentence was manifestly excessive. Counsel for the appellant accepted in oral argument that a 35-year starting point might have been within range after a trial, but argued it was too high once the plea discount was applied. The appellant contended the appropriate pre-discount starting point should have been 28 years, not 35 years.

  • Whether the undiscounted starting point of 35 years imprisonment was manifestly excessive, rendering the resulting 28-year sentence after the guilty plea discount outside the available range
  • Whether sufficient weight was given by the sentencing judge to findings of remorse, absence of premeditation, and a significant degree of provocation by the deceased
  • Whether comparable murder sentences established that the sentence imposed was outside the appropriate range

Decision

The Court of Criminal Appeal granted leave to appeal given the severity of the sentence, but unanimously dismissed the appeal. Basten JA (with whom Adams J and Latham J agreed) found that the appellant had not established the sentence fell outside the available range.

On the circumstances of the offending, the Court noted several significant aggravating features. The appellant had armed himself with multiple knives before returning to confront the deceased, and his attack was of extraordinary ferocity. He was also on parole at the time of the offence, which the sentencing judge treated as a significant aggravating factor. The sentencing judge had been careful to avoid double punishment on that account by backdating the sentence to the date of custody.

The Court considered four comparable murder cases involving knife attacks. While each resulted in a sentence of lower severity than that imposed on the appellant, Basten JA observed that none involved an offender with the appellant's record for violent assault, nor an attack of comparable ferocity. The Court noted the limited utility of sentencing statistics without a close examination of the circumstances of each case, consistent with the approach in Hili v The Queen.

The comparable cases therefore did not demonstrate that Price J's sentence was manifestly excessive. The appeal was dismissed accordingly.

Orders Made

• The appeal is dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing statistics carry limited weight without a careful examination of the underlying circumstances of each comparable case.
  • A pre-discount starting point of 35 years for murder was held not to be manifestly excessive where the offending involved arming with multiple knives, an extraordinarily ferocious attack, a prior record of violent assault, and commission of the offence while on parole.
  • Mitigating factors such as remorse, absence of premeditation, and provocation by the deceased did not, taken together, require a lower starting point where the objective seriousness of the offence was of a high order.
  • Under s 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard non-parole period for murder is 20 years, providing a statutory reference point that the sentencing court must consider but which does not cap the available range for cases of greater culpability.
  • Where an offender's criminal record and the degree of violence involved distinguish the case from otherwise comparable sentencing decisions, those comparisons will not establish that the resulting sentence was outside the appropriate range.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 21A, 54D, 61

Cases
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- R v Merritt [2004] NSWCCA 19; 59 NSWLR 587
- R v Willmott [2012] NSWSC 824 (sentence under appeal)
- Regina v Cotterill [2012] NSWSC 89
- Regina v Gabor Ziha [2008] NSWSC 145
- Regina v Reid [2005] NSWSC 230
- Regina v Robinson [2007] NSWSC 460