Adam Williamson v The Queen

[2018] VSCA 193

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0092

ADAM WILLIAMSON	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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JUDGES:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	7 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 193
JUDGMENT APPEALED FROM:	[2017] VSC 172 (Jane Dixon J)

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CRIMINAL LAW – Sentence – Leave to appeal – Parity – Leave granted.

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WHELAN JA:

1. The applicant, Adam Williamson, in company with a co-offender, Jonathan Cooper, committed an aggravated burglary upon an elderly man who lived alone in 2015.  In the course of the burglary Cooper fatally stabbed the elderly resident.  The applicant and Cooper then stole money and other goods and left.

1. Cooper pleaded guilty to a charge of murder, a charge of aggravated burglary, and a charge of theft.  After an appeal to this Court[1] he was sentenced to a term of imprisonment of 22 years for the murder, a term of imprisonment of 8 years for the aggravated burglary, and a term of imprisonment of 2 years for the theft.

   [1]DPP v Cooper [2018] VSCA 21.

1. After Cooper’s sentence was imposed by this Court, the applicant was sentenced on 17 April 2018.[2] The applicant had pleaded guilty to a charge of murder contrary to s 3A of the Crimes Act 1958, what was once called ‘felony murder’.  On that charge he was sentenced to a term of imprisonment of 25 years.  He was sentenced to a term of imprisonment of 8 years for the aggravated burglary, and a term of imprisonment of 2 years 6 months for the theft.

   [2][2018] VSC 172.

1. After orders for cumulation, the total effective sentence imposed on Cooper was 24 years.  A non-parole period of 20 years was fixed.  The total effective sentence imposed on the applicant was 27 years.  A non-parole period of 23 years was fixed. 

1. The applicant now seeks leave to appeal on a single proposed ground.  It is as follows:

GROUND 1:   The learned sentencing Judge erred in her application of the parity principle in that she imposed sentences and an overall non-parole period so disparate from the sentence imposed upon the co-offender Cooper as to give rise to a justifiable sense of grievance in the Applicant.

PARTICULARS

a)The learned Judge placed insufficient weight upon Cooper’s leading role, accompanied by murderous intent, in causing the death of the deceased — leading to sentences disproportionate to the differences in the roles of Cooper and the Applicant.

b)The learned Judge placed too much weight on Cooper’s cooperation and assistance in assessing his prospects of rehabilitation — leading to sentences disproportionate to the differences between Cooper and the Applicant.

c)The learned Judge placed insufficient weight upon Cooper’s prior conviction for a not dissimilar aggravated burglary, and the fact that it was he who was armed with a knife — leading to sentences disproportionate to the differences between Cooper and the Applicant.

c)Too little weight was placed upon the disparity in the criminal histories and antecedents of Cooper and the Applicant in assessing the relative prospects of rehabilitation of each.

e)Too little weight was given to the Applicant’s plea of guilty.

1. The sentencing judge in the course of her sentencing reasons referred to this Court’s decision in Director of Public Prosecutions v Perry.[3] The sentencing judge found that this was not a case of murder within the meaning of s 3A of the Crimes Act 1958 where murderous intent had been present, but she observed that she was inclined to regard the applicant’s offence as at the high end of the spectrum of cases falling under s 3A where murderous intent was not established.

   [3][2016] VSCA 152.

1. Having read the respective written cases, in my opinion the applicant should have leave to appeal on the proposed ground.  In my view the proposed ground is arguable, given that Cooper was the one who stabbed the elderly victim and thereby caused his death and given the fact that Cooper had a prior conviction for aggravated burglary.  I would not, however, confine the applicant to reliance upon those two circumstances.  I emphasise that I express no view on the ultimate merits of the proposed ground. 

1. The applicant is granted leave to appeal on the proposed ground as particularised.