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District Court 28 November 2014

R v WILLIAMS; R v ROBERTS

[2014] NSWDC 374

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL PAROLE PERIOD.

Citation: R v Williams; R v Roberts [2014] NSWDC 374
Court: District Court of New South Wales
Date: 28 November 2014
Judge(s): Judge S Norrish QC

Background

Two Aboriginal offenders, referred to here as Williams and Roberts by their roles as co-offenders, appeared together for sentencing on a series of serious offences. The offending spanned several months in 2013 and involved multiple armed robberies with dangerous weapons at locations including St Helens Park and Tumut, as well as related offences such as assault occasioning actual bodily harm in company, break and enter, and vehicle-related offences.

Roberts committed an armed robbery before the joint offending with Williams, and did so while on parole. He was arrested following the Tumut offences in August 2013, at which point his parole was revoked. Williams remained at large until October 2013 and committed further break and enter offences in the interim.

The sentencing task was complicated by the number of charges, the presence of Form 1 matters (additional offences taken into account without separate punishment), a section 166 certificate for Williams, pre-sentence custody calculations, a Local Court sentence already imposed on Williams, and the need to apply parity principles to two offenders whose overall criminal histories and custody periods differed.

  • How to calculate and structure sentences, including commencement dates, to account for pre-sentence custody, revoked parole, and an existing Local Court sentence
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio
  • How to apply the parity principle where co-offenders have different criminal histories and different post-arrest offending
  • The proper weight to give the Aboriginal background of both offenders, including disadvantage, social exclusion, and the principles from R v Fernando and Bugmy v R
  • How to reflect totality across a complex series of partially accumulative sentences

Decision

Judge Norrish structured the sentences for each offender with different commencement dates to reflect the differing custody histories. For Roberts, a commencement date was set during the period he served the balance of his revoked parole, giving effect to totality. For Williams, the court was required to respect the non-parole period already fixed by the Magistrate, treating that period as running notionally from when Williams returned to custody.

The court found special circumstances in relation to both offenders on multiple bases. This finding justified a reduction in the proportion of the sentence to be served before parole eligibility, below the standard one-third that would otherwise apply. The judgment acknowledged the complexity of the sentencing exercise and the need to address each issue expressly to avoid appellate complaint.

Both offenders' Aboriginal backgrounds and the circumstances of disadvantage and social exclusion associated with that background were taken into account in the sentencing discretion. The court applied the principles established in R v Fernando and affirmed by the High Court in Bugmy v R, which recognise that profound deprivation may diminish moral culpability without excusing the offending.

The parity principle, drawn from Lowe v R and Postiglione v R, required the court to justify the difference in sentence between the two offenders. Williams received a longer overall sentence than Roberts, reflecting his additional offending after Roberts was arrested and his later arrest date, while the non-parole periods were set with close attention to ensuring the disparity was explicable and proportionate.

Orders Made

  • Roberts: total effective sentence of 7 years 3 months imprisonment, with an effective non-parole period of 4 years; parole eligibility date of 28 February 2018
  • Williams: total sentence of 8 years imprisonment, with a non-parole period of 4 years 5 months; parole eligibility date of 16 December 2018
  • Special circumstances found for both offenders
  • Various sentences structured as partially accumulative to reflect totality, with different commencement dates for each offender

Key Takeaways

  • The District Court confirmed that the principles in R v Fernando, as affirmed by the High Court in Bugmy v R (2013), require a sentencing court to give genuine weight to the background of profound social disadvantage experienced by Aboriginal offenders, even in cases involving serious violence.

  • Parity between co-offenders does not require identical sentences. Where one offender commits additional offences after a co-offender's arrest, or has a different custody history, a difference in sentence may be justified provided it is explicable and not the result of inconsistency.

  • Special circumstances can be established on multiple grounds simultaneously. The District Court found them here on a range of bases, warranting a non-parole period that was a smaller proportion of the total sentence than the statutory default.

  • Calculating commencement dates in cases involving revoked parole, pre-sentence custody, and a pre-existing Local Court sentence requires a court to account carefully for all periods in custody and to give appropriate credit without double-counting.

  • A Form 1 mechanism, which places additional offences before the court to be taken into account in setting the overall sentence without attracting separate punishment, remains a significant tool for reflecting the totality of an offender's conduct while avoiding disproportionate cumulation.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), ss 59(2), 97(1), 97(2), 112(2), 166

Cases
- Lowe v R [1984] HCA 46
- Postiglione v R [1997] HCA 26
- Bugmy v R [2013] HCA 37
- Munda v Western Australia [2013] HCA 38
- Muldrock v R (2011) 244 CLR 120
- Pearce v R (1998) 194 CLR 610
- Veen (No 2) v The Queen (1988) 164 CLR 465
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346
- Jimmy v R (2010) 77 NSWLR 540
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Jackson v R [2010] NSWCCA 162
- R v Blackman & Walters [2001] NSWCCA 121
- R v Callaghan (2006) 160 A Crim R 145
- R v Engert (1995) 84 A Crim R 67
- Moffitt v R (1990) 20 NSWLR 114
- SS v R [2009] NSWCCA 114
- R v Lewis [2014] NSWSC 1127
- R v Millwood [2012]