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Court of Criminal Appeal 6 February 2019

Gwilliam v R

[2019] NSWCCA 5

Assault & violence
SENTENCE DISPUTED FACTS WHETHER FINDINGS SUPPORTED BY EVIDENCE BASIS OF DRAWING INFERENCES PAROLE PERIOD

Citation: Gwilliam v R [2019] NSWCCA 5
Court: NSW Court of Criminal Appeal
Date: 6 February 2019
Judges: Simpson AJA, Walton J, Wilson J

Background

The applicant pleaded guilty on the day his trial was listed to commence to wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period (NPP) of seven years. The plea followed what had originally been a charge of wounding with intent to murder, with the present offence charged as an alternative.

The offence arose from a drug transaction gone wrong. Although the applicant admitted stabbing the victim during an arranged meeting, the parties fiercely disputed who had brought the knife, who had initiated the violence, and the circumstances of the attack. After a three-day disputed facts hearing, the sentencing judge found against the applicant on all contested issues, concluding that the applicant had brought the knife to the meeting and had initiated the violence.

The applicant was sentenced in the District Court to 13 years and 6 months imprisonment, with an NPP of 8 years and 6 months. He sought leave to appeal on three grounds: that the sentencing judge made findings unsupported by the evidence, that he was denied procedural fairness, and that the NPP was erroneously set.

  • Whether the sentencing judge erred in drawing inferences about the applicant's motive for bringing a knife to the meeting, where neither party had offered a direct explanation for that conduct
  • Whether the applicant was denied procedural fairness in connection with those findings
  • Whether the sentencing judge erred in setting the NPP, in particular by treating the standard NPP as having near-determinative significance

Decision

Grounds 1 and 2: Motive findings and procedural fairness

The Court rejected the argument that the sentencing judge's motive findings were unsupported by the evidence. Having resolved the credibility contest against the applicant (including the finding that the applicant, not the victim, had brought the knife), the judge was entitled to draw inferences from the whole of the evidence about why the applicant had armed himself. The inference drawn, that the knife was effectively insurance against the victim refusing to supply drugs on credit, was open on the evidence. The Court noted it was difficult to identify any other plausible motive. The judge had also expressly found that he was not satisfied beyond reasonable doubt that the applicant had brought the knife intending to stab the victim, which further limited any adverse effect of the motive finding.

The Court also found no procedural unfairness. The applicant had the opportunity to offer an explanation for bringing the knife but could not do so because his case was that it was the victim who had produced the weapon. Once that account was rejected, the sentencing judge was left to reason from the available evidence.

Ground 3: The non-parole period

The Court dismissed the challenge to the NPP. In substance, the applicant's argument was that because the sentencing judge assessed the offence as only slightly above mid-range in objective gravity, the NPP should have been only slightly above the standard NPP of seven years. The Court held this approach was inconsistent with authority. Following Muldrock v The Queen [2011] HCA 39, the standard NPP is one of two legislative guideposts (alongside the maximum penalty) and does not carry determinative significance. The sentencing judge had regard to both guideposts, the objective gravity of the offence, the applicant's subjective circumstances, and allowed a 10% discount for the guilty plea. The Court noted the 10% discount was arguably generous given the lateness of the plea and the need for a disputed facts hearing. The sentence was described as stern, but properly reflective of the gravity of the attack and the severe, permanent injuries inflicted on the victim.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge may draw inferences about an offender's motive from the whole of the evidence where neither party has directly explained the relevant conduct, provided the inference is one that is open on the evidence.
  • No procedural unfairness arises where an offender's opportunity to explain their conduct was foreclosed by the very account they advanced at the hearing and which was subsequently rejected.
  • Under Muldrock v The Queen [2011] HCA 39, the standard non-parole period does not have determinative significance in sentencing. It is one of two legislative guideposts, and the maximum penalty remains equally important.
  • Undue focus on the standard NPP risks distracting from the significance of the maximum penalty, as confirmed in Duncombe v R [2013] NSWCCA 271.
  • A guilty plea entered on the day of trial, combined with the need for a multi-day disputed facts hearing, may significantly reduce the utilitarian value of that plea for the purposes of the sentencing discount.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Way (2004) 60 NSWLR 168
- Duncombe v R [2013] NSWCCA 271
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Barca v The Queen [1975] HCA 42; 133 CLR 82
- Malvaso v The Queen (1989) 168 CLR 227
- Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29
- Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
- Peacock v The King (1911) 13 CLR 619
- Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352