R v Williams

[2006] VSC 368

IN THE SUPREME COURT OF VICTORIA Unrestricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1478 of 2004

THE QUEEN

v

CARL ANTHONY WILLIAMS

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2006
DATE OF SENTENCE	26 July 2006
CASE MAY BE CITED AS:	R v Williams
MEDIUM NEUTRAL CITATION:	[2006] VSC 368

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Re sentencing to correct error in accumulation.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Tinney	Ms K Van Den Akker Office of Public Prosecutions
For the Accused	Ms M Altman	Lethbridges

HER HONOUR:

1. Pursuant to s.104A(1) of the Sentencing Act of 1991 I intend to correct an error in the manner of the cumulation of the sentence that I imposed[1].  Through my associate, Corrections advised that the manner in which the sentence was pronounced did not reflect what I stated was the intended overall sentence that was to be imposed upon the prisoner, partly due to the manner in which Corrections calculate sentences.  Firstly, there is an error of fact that needs to be corrected also.  When dealing with the matter of the sentence imposed by his Honour Kellam J in an appeal heard by the Court of Appeal, I was informed that the Court of Appeal had declared 450 presentence detention days.  Unfortunately, it was a matter that I was unable to access as it is restricted, so I relied upon that information.  Corrections have now informed me, through my associate, that the amount of presentence detention days declared by the Court of Appeal was 850 days.  It is clear, that the difference reflects the time spent in custody between the sentence imposed by Kellam J and the sentence reimposed by the Court of Appeal.  I had based my calculations on the sentence imposed by his Honour Kellam J and the date on which he imposed that sentence, varying it only by the 33 days that the Court of Appeal allowed.  It makes, accordingly, no difference to the manner in which I had calculated the time spent in presentence detention, but it is important that I make it clear, that I understand, that at the time, that was on 29 October 2004, Kellam J sentenced you to an overall term of seven years with a five year minimum, he declared that you had served 450 days presentence detention.  The Court of Appeal varied that sentence and on 24 November 2005 sentenced you for a term of six years and 333 days with a minimum of four years and 333 days.  They declared that you had served 850 days presentence detention.  The 400 days difference, reflects the time from the sentence imposed by Kellam J to the sentence imposed by the Court of Appeal.  Accordingly, as I had dealt with the sentence as commencing from 29 October 2004, I have already taken into account, in my calculations, the amount of time you have served in respect of the sentence for the trafficking offences and it therefore, does not alter the amount that I determined you had served, or was to be served.

   [1]R v Williams [2006] VSC 367.

1. In relation to the method of cumulation, I intended that one year of the sentence you are currently undergoing was to be served cumulatively upon the sentence I was then imposing.  The new overall minimum term, from the date of my sentence, was to be 21 years, with the time that you have already served not to be taken into account on the new minimum term.  That is not reflected, according to Corrections, in the manner in which I had imposed the sentence.  I therefore reimpose the sentence in the following terms:

1. I direct that you are to be imprisoned for the term of 26 years for the count of murder and I direct that 20 years and 270 days of that sentence is to be served cumulatively on the sentence imposed by the Court of Appeal on 24 November 2005 on the trafficking charges.  That makes a total effective sentence of 27 years.

1. I further direct, that you are to serve a minimum term of 21 years before becoming eligible for parole.  I have, in imposing that sentence, already taken into account the 850 days of presentence detention, and therefore, I direct that the 850 days served prior to this sentence, is not to be deducted from the new overall minimum of 21 years.  I make it clear, that this is the new overall minimum term, that has been imposed in respect of both the sentence of the Court of Appeal and the sentence that I imposed on 19 July 2006.  Anything?

MR TINNEY:           I just note my instructor points out that the return of prisoners indicates that Kellam J made a declaration in respect of 457 days rather than 450, but I do not know that that has any bearing on - just as a matter of the precise declaration that he made, it was 457 apparently, Your Honour.

HER HONOUR:      Right, I am sorry I read the sentence and I thought it said 450.

MR TINNEY:           Yes, I am going from the return there.

HER HONOUR:      I do not have the return of prisoners, I have the sentence of his Honour.  So, that is what I read it as being 450.

MR TINNEY:           Yes, Your Honour.

HER HONOUR:      If I am wrong on that, Mr Williams should get the benefit of whatever it is.

MR TINNEY:           Please, Your Honour.

MS ALTMAN:         Yes, Your Honour.

HER HONOUR:      All right.  Thank you.

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