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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
Date: 09 February 2022
Judge(s): Johnson J, Rothman J, Hamill J

Background

The applicant pleaded guilty to robbery in company arising from a service station robbery in Casino, NSW in March 2018. The plea was accepted in full satisfaction of an original charge of armed robbery with wounding. The applicant and four co-offenders robbed the service station, during which a co-offender produced a knife and slashed the victim's face, causing a significant laceration. The plea was accepted on the basis that the applicant was unaware that his co-offender was carrying a knife.

The District Court sentenced the applicant to six years' imprisonment with a non-parole period of three years and ten months. The applicant sought leave to appeal on five grounds, arguing errors in the assessment of objective seriousness, findings as to injury, treatment of mental health conditions, the timing of the plea discount, and manifest excess.

Legal Issues

  • Whether the sentencing judge erred in assessing objective seriousness, including by implicitly taking into account the co-offender's knife and attributing to the applicant a greater role in planning than was open on the evidence
  • Whether the sentencing judge erred in finding, without sufficient evidence and without affording procedural fairness, that the applicant's punch caused physical injury to the victim
  • Whether the sentencing judge failed to properly consider the applicant's mental health conditions (PTSD and Major Depressive Disorder) as reducing moral culpability
  • Whether the sentencing judge erred in treating the applicant's early offer to plead guilty as not made at the earliest opportunity, resulting in a reduced plea discount
  • Whether the sentence was manifestly excessive

Decision

Ground 1: Objective seriousness and the Henry guideline

The Court accepted that some factual matters were ambiguous, including references to "two offenders armed" which, on analysis, appeared to include the knife of which the applicant was unaware (at [30], [63]). The Court also found that the degree of planning, while slightly above that contemplated in the Henry guideline, did not clearly take the offence beyond that range on its own (at [159]-[160]). However, the Court concluded that the assessment of objective seriousness is classically within the sentencing judge's discretion and will only be disturbed on appeal where an identifiable or manifest error is established (at [163]-[165]). No such error was established here, and the assessment remained available to the sentencing judge despite minor factual imprecision (at [166]-[167]).

Ground 2: Finding that the applicant's punch caused injury

The Court upheld this ground. There was no evidence before the sentencing judge that the applicant's punches caused injury to the victim (at [138]-[141]). The Agreed Facts attributed no injuries to the applicant's conduct; the major injuries were lacerations caused by the knife, for which the applicant bore no responsibility; and the bruising was consistent with the struggle involving the other co-offenders (at [140]-[142]). The finding was a fact used adversely against the applicant and required proof beyond reasonable doubt, which was not established. The applicant was also never challenged on this point during his evidence (at [141]). Ground 2 was upheld (at [143]).

Ground 3: Mental health and moral culpability

The Court upheld this ground. While the sentencing judge applied the Bugmy principles relating to childhood deprivation and disadvantage, her Honour failed to take into account, as a distinct matter, the applicant's diagnosed PTSD and Major Depressive Disorder in assessing his moral culpability (at [130]-[132]). The uncontested psychiatric evidence was accepted by both the Crown and the sentencing judge, yet the Remarks on Sentence contained no determination of the effect of those conditions on moral culpability (at [126]). The Court found that the omission unduly confined the sentencing discretion (at [132]). Further, the finding that the violence was "simply not necessary" overlooked how the applicant's mental conditions and normalisation of violence, arising from his background, were directly relevant to his conduct (at [133]). Ground 3 was upheld (at [143]).

Ground 4: Utilitarian plea discount

The Court rejected this ground, though with some sympathy for the applicant's position. The offer to plead was made before committal, but the sentencing judge treated the 20% discount as appropriate because a formal plea could theoretically have been entered at committal (at [108]-[118]). The Court reasoned that where a Crown declines to accept a plea in full satisfaction of an indictment, it is not appropriate to penalise an accused for not formally entering a plea and thereby effectively admitting elements of the more serious charge still on the indictment (at [114]). Nonetheless, while the Court indicated it would have allowed close to 25%, the 20% discount was within the available range and did not constitute error warranting intervention (at [118]-[119]).

Ground 5: Manifest excess

Because grounds 2 and 3 were upheld and resentencing was required, the Court found it unnecessary to resolve the manifest excess ground (at [168]-[169]).

Resentencing

On resentencing, the Court commenced with a starting point of six years and six months' imprisonment, reflecting objective seriousness assessed above the mid-range (at [194]). Taking into account the applicant's PTSD and Major Depressive Disorder, childhood trauma, the normalisation of violence arising from that background, impressive rehabilitation in custody including complete abstinence from alcohol and a mentoring role for younger prisoners, and allowing a discount of close to 25% for the utilitarian value of the plea, the Court imposed a head sentence of five years' imprisonment (at [195]). Special circumstances were found, resulting in a non-parole period of three years to allow an extended period of supervised release to consolidate rehabilitation (at [196]-[197]).

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The sentence imposed by the District Court on 4 October 2019 was quashed
  • In lieu thereof, the applicant was sentenced to a non-parole period of 3 years commencing 28 September 2019 and concluding 27 September 2022, with a remainder of term of 2 years concluding 27 September 2024
  • The applicant was first eligible for release on parole on 27 September 2022

Key Takeaways

  • A sentencing court cannot, when assessing an offender's individual role and moral culpability, find as a fact adverse to the offender that a punch caused injury unless that finding is proved beyond reasonable doubt and was the subject of procedural fairness, including the opportunity to respond (at [139]-[141]).

  • Where an accused pleads guilty to an alternative charge that the Crown declined to accept before committal, treating the plea as not entered at the earliest opportunity risks penalising the accused for declining to admit elements of a more serious charge still on the indictment; the Court of Criminal Appeal described this as giving the Crown undue control over the timing of the discount (at [114]-[117]).

  • Applying Bugmy principles regarding childhood deprivation is a distinct sentencing exercise from taking into account a diagnosed psychiatric condition such as PTSD or Major Depressive Disorder; failing to address the latter as a separate matter affecting moral culpability is an error (at [130]-[132]).

  • Under the joint criminal enterprise doctrine, an offender is not responsible for a co-offender's use of a weapon where the weapon's presence was unknown to the offender and its use was not reasonably within the scope of the common purpose (at [150]-[151]).

  • Guideline judgments such as R v Henry establish a range for a typical case; an offence may fall outside that range on account of aggravating features, but assessment of objective seriousness remains quintessentially within the sentencing judge's discretion and will be disturbed on appeal only where an identifiable error or a manifestly unjust outcome is established (at [163]-[166]).

Legislation and Cases Referenced

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

Cases
- Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kennedy v R [2010] NSWCCA 260
- Knight v R [2010] NSWCCA 51
- McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- R v Duong, Lu, Do and Tran (1992) 61 A Crim R 140
- R v Harris [2011] NSWCCA 105
- R v Hemsley [2004] NSWCCA 228
- R v Henry (1999) 48 NSWLR 346; [1999] NSWCCA 111
- Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
- The Queen v de Simoni (1981) 147 CLR 383; [1981] HCA 31
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14