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Court of Criminal Appeal 4 May 2016

Williams v R

[2016] NSWCCA 68

DrugsTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE AGGREGATE SENTENCE PRINCIPLE OF TOTALITY PARITY WHETHER JUSTIFIABLE SENSE OF GRIEVANCE

Citation: Williams v R [2016] NSWCCA 68
Court: NSW Court of Criminal Appeal
Date: 4 May 2016
Judge(s): Hoeben CJ at CL, Harrison J, Davies J

Background

The appellant was convicted and sentenced in the District Court for a series of serious offences: five supplies of methylamphetamine (totalling over 432 grams and 453 grams respectively, each at or above the commercial quantity threshold), a large-scale larceny of alcohol valued at over $241,000, and a Form 1 matter involving the destruction of a motor vehicle by fire. He pleaded guilty to the supply charges in Count 2, the larceny, and the Form 1, and was found guilty after a judge-alone trial on the remaining supply charge (Count 3).

Bennett DCJ imposed an aggregate sentence of eight years and six months, with a non-parole period of five years, commencing 20 March 2014. The appellant sought leave to appeal against the severity of that sentence on seven grounds.

A co-accused, Mr Dunston, had been sentenced separately on related but more limited drug supply charges, and the appellant raised parity with that sentence as one of his grounds.

  • Whether the sentencing judge erred in assessing the objective seriousness of the commercial drug supply offences
  • Whether the judge failed to properly assess the objective gravity of the supply charges
  • Whether undue weight was placed on alleged offending committed while the appellant was in custody
  • Whether the judge failed to apply the totality principle correctly by commencing the aggregate sentence at the expiry of fixed terms already being served
  • Whether excessive weight was given to community protection in light of a psychological report tendered at sentence
  • Whether the aggregate sentence was manifestly excessive
  • Whether the sentence gave rise to a justifiable sense of grievance on parity grounds, by reference to the co-accused's sentence

Decision

Harrison J, with whom Hoeben CJ at CL and Davies J agreed, dismissed each ground of appeal.

On objective seriousness, the Court found no error in the sentencing judge's characterisation of the drug supply offences. The quantities involved were substantial, multiple transactions had occurred using a police source, and the appellant was an organiser of supply rather than a peripheral participant.

On totality, the Court rejected the submission that the aggregate sentence was structured incorrectly. The sentencing judge was entitled to take into account the full range of offending and to commence the aggregate sentence in the manner adopted. The Court found no failure to apply the totality principle.

On parity, the Court held that the appellant had no justifiable sense of grievance when compared with the co-accused. The differences in the nature and volume of their respective offending were significant. The co-accused faced a smaller quantity of drugs and was not also the subject of a large larceny matter and a Form 1. The dissimilarities in offending adequately explained the difference in sentences, and the remaining grounds, including those relating to protection of the community and alleged in-custody offences, were also rejected.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that parity arguments require a genuine similarity in offending before a co-accused can establish a justifiable sense of grievance; differences in the quantity of drugs, additional offences, and the offender's role are all relevant to whether sentences are truly comparable.
  • A sentencing court is not precluded from giving significant weight to community protection where a psychological report before the court discloses a risk posed by the offender, provided that factor is weighed alongside other established sentencing principles.
  • The totality principle does not operate as a rigid rule requiring a specific starting or ending point for an aggregate sentence; the court must assess the combined effect of all offending in a way that is just and appropriate as a whole.
  • No error was established in characterising commercial-quantity drug supply offences as falling in the mid-range of objective seriousness where the offender organised multiple transactions over an extended period involving substantial quantities of methylamphetamine.
  • Alleged offending in custody may be a legitimate sentencing consideration, but the weight given to it must be proportionate and consistent with the overall sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), ss 117, 195(1A)(b)

Cases:
- Cahyadi v Regina [2007] NSWCCA 1; (2007) 188 A Crim R 41
- Delaney v R; R v Delaney [2013] NSWCCA 150
- House v R [1936] HCA 40; (1936) 54 CLR 499
- JM v Regina [2014] NSWCCA 297
- Mulato v R [2006] NSWCCA 282
- R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152