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Court of Criminal Appeal 9 February 2022

Williams v R

[2022] NSWCCA 15

Assault & violenceTheft & property
CRIME APPEAL OBJECTIVE SERIOUSNESS NATURAL JUSTICE NORMALISATION OF VIOLENCE APPEAL GRANTED ON SO SOME GROUNDS

Citation: Williams v R [2022] NSWCCA 15
Court: Court of Criminal Appeal, NSW
Date: 9 February 2022
Judges: Johnson J, Rothman J, Hamill J

Background

The appellant pleaded guilty to robbery in company, arising from an early morning armed robbery at a service station in Casino, NSW in March 2018. The plea was entered in the week the matter was listed for trial and was accepted in full satisfaction of an original charge of armed robbery with wounding. Four co-offenders participated. During the robbery, a 61-year-old victim was punched, threatened with a metal pole, and slashed across the face with a knife wielded by one co-offender.

The agreed facts recorded that the appellant was unaware that the co-offender was carrying a knife. The appellant grabbed cash from the till while a struggle unfolded between the victim and two co-offenders. The sentencing judge imposed a term of six years' imprisonment with a non-parole period of three years and ten months, finding special circumstances.

The appellant sought leave to appeal, arguing the sentence was affected by multiple errors at first instance.

  • Whether the sentencing judge erred in assessing objective seriousness, including by treating the appellant as aware of the knife despite the agreed facts to the contrary
  • Whether the appellant was denied natural justice by a finding that he personally caused physical injury, and the weight given to that finding
  • Whether the sentencing judge erred by failing to determine how the appellant's mental condition should be reflected in his sentence
  • Whether the appellant was entitled to the full 25% utilitarian discount for his guilty plea
  • Whether the sentence was manifestly excessive

Decision

Ground 1: Objective seriousness and weapons. The Court found that the sentencing judge's remarks, including references to "weapons" in the plural and to "two of whom were armed," were ambiguous and, in context, appeared to attribute to the appellant an awareness of both the pole and the knife. Because the agreed facts expressly recorded that the appellant did not know about the knife, taking that weapon into account against him constituted an error. The Court also examined the judge's treatment of planning: although her Honour declined to treat planning as an aggravating factor, she nonetheless used her assessment of it to place the offence beyond the range contemplated by the R v Henry guideline, which the Court found required closer analysis.

Ground 2: Natural justice and causation of injury. The sentencing judge found that the appellant had struck the victim to the head, causing injury. The appellant argued this finding was not open on the agreed facts and that he had been denied an opportunity to address it. The Court examined whether that finding was properly open and whether the procedural requirements of natural justice had been met before the finding was made and weighted against the appellant.

Ground 3: Mental condition. The Court accepted that the sentencing judge had failed to adequately address how the appellant's mental condition, together with his background of deprivation and exposure to violence during youth, should be reflected in the sentence. The principle, confirmed in Bugmy, is that a background of profound disadvantage and normalisation of violence does not diminish in weight simply because an offender has been sentenced before. The Court held that this mitigating material required express consideration and that its omission from the sentencing calculus was an error.

Overall outcome. The Court granted leave to appeal and upheld the appeal on certain grounds. It proceeded to resentence the appellant, taking into account the errors identified, the agreed facts as to weapons awareness, and the full weight of the appellant's personal circumstances including his mental condition and background.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A sentencing court cannot treat a co-offender's weapon as an aggravating circumstance against an accused where the agreed facts expressly record that the accused was unaware of that weapon; doing so constitutes a sentencing error.
  • The principle from Bugmy v The Queen was applied: a history of childhood deprivation, exposure to family violence, and the normalisation of violence retains full mitigatory force and must be expressly addressed in the sentencing remarks.
  • Under the R v Henry guideline framework for robbery offences, a sentencing court must engage explicitly with the specific guideline features before concluding an offence falls outside the guideline range; relying on planning considerations as an adverse factor after declining to treat them as a formal aggravating element requires careful reasoning.
  • Natural justice requires that before a sentencing court makes a finding adverse to the offender, particularly one going beyond the agreed facts, the offender must have had the opportunity to address it.
  • Utilitarian discount for a guilty plea must be assessed by reference to the timing and circumstances of the plea; a reduction below the conventional 25% requires proper justification where the plea, though late, still produced real utilitarian benefit.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(g)
- Criminal Procedure Act 1986 (NSW), s 95

Cases:
- R v Henry (1999) 48 NSWLR 346 (guideline judgment for robbery)
- Bugmy v The Queen (2013) 249 CLR 571 (background deprivation in sentencing)
- Muldrock v The Queen (2011) 244 CLR 120
- House v The King (1936) 55 CLR 499 (appellate interference with discretion)
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Dinsdale v The Queen (2000) 202 CLR 321
- Siganto v The Queen (1998) 194 CLR 656
- The Queen v de Simoni (1981) 147 CLR 383
- Osland v The Queen (1998) 197 CLR 316
- McAuliffe v The Queen (1995) 183 CLR 108
- Benitez v R (2006) 160 A Crim R 166
- Knight v R [2010] NSWCCA 51
- Kennedy v R [2010] NSWCCA 260
- Mulato v R [2006] NSWCCA 282
- R v Hemsley [2004] NSWCCA 228
- R v Harris [2011] NSWCCA 105
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v Duong, Lu, Do and Tran (1992) 61 A Crim R 140