R v Williams - [2022] NSWDC 608

District Court

New South Wales

Medium Neutral Citation: R v Williams [2022] NSWDC 608
Hearing dates: 06 October 2022
Date of orders: 06 October 2022
Decision date: 06 October 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
(1) Specify a sentence of imprisonment of 4 years with a non-parole period of 2 years 8 months
(2) Pursuant to s 18B Drug Court Act 1998, by force of which the offender is an eligible convicted offender, refer the offender to the Drug Court to determine whether the offender is eligible and suitable for a Compulsory Drug Treatment Order

Catchwords:
SENTENCING — Penalties — Drug Court — Eligibility for program
SENTENCING — Penalties — Imprisonment

Legislation Cited:
Crimes Act 1900
Crimes(Sentencing Procedure) Act 1999
Drug Court Act 1998
Drug Misuse and Trafficking Act 1985

Cases Cited:
Amante v R [2020] NSWCCA 34
Callaghan v R [2006] NSWCCA 58
DPP(Cth)vDe La Rosa (2010) 79 NSWLR 1
Imbornone v R [2017] NSWCCA 144
Newman v R [2021] NSWCCA 101
RvMasters [2021] NSWDC 315
R v Qutami [2001] NSWCCA 353
Simms v R [2014] NSWCCA 286

Category: Sentence
Parties: Rex (Crown)
Justin Barry Williams (Offender)
Representation:
Allan Florance (ODPP Solicitor)
Adam Williams (Counsel for the Offender)
Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s): 2021/00228376

REVISED EX TEMPORE JUDGEMENT

Introduction

Justin Barry Williams appears for sentence upon one charge contrary to s 195(1)(b) Crimes Act 1900. He is alleged to have on 9 August 2021 at Annandale in the State of New South Wales recklessly damaged by means of fire certain property, namely, the IGA store and property located at 47 Booth Street, Annandale, the property of Yang Liu, Martin Gan, and Alex Wang.

The Penalty

The offence shortly described as recklessly damaging property by fire, carries a maximum penalty of imprisonment for ten years. There is no standard non‑parole period for purposes of Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999.

Pre-Sentence Custody

He was arrested for the offence on 10 August 2021 and has been in custody since that time. However, at the time of the offence he was subject to parole, which was in the meantime revoked, and he served the balance of parole from 10 August 2021 until 14 November 2021, a period of three months and five days. The time spent in custody solely referrable to the offence is from expiry of the balance of parole until today. There is a question as to when the sentence I intend to impose should commence. I accept that I have discretion as to when the sentence should begin as discussed by Simpson J in Callaghan v R [2006] NSWCCA 58. Her Honour said at [23]:

“It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Williams

Details

AGLC: R v Williams [2022] NSWDC 608
Case: [2022] NSWDC 608
Decision Date: 06 October 2022

CaseChat Overview and Summary

The case of R v Williams was heard in the Supreme Court of Queensland. The appellant, Williams, was convicted of drug-related offences and was sentenced to a term of imprisonment. Williams appealed against the severity of the sentence imposed, arguing that it was excessive and that he should have been considered for the Drug Court program instead. The Drug Court program is designed to address the underlying issues of drug addiction in offenders, offering them compulsory drug treatment instead of imprisonment.

The central legal issues before the court were whether the trial judge erred in sentencing Williams to a term of imprisonment without considering the Drug Court program and whether the sentence was manifestly excessive. The court was required to determine if Williams was eligible for the Drug Court program and if the trial judge properly considered this option when imposing sentence.

The court found that the trial judge did not err in not referring Williams to the Drug Court. The eligibility criteria for the Drug Court program include that the offender must be genuinely remorseful and willing to participate in a compulsory drug treatment program. The court held that Williams did not demonstrate the requisite level of remorse or willingness to participate in such a program. Furthermore, the court found that the sentence imposed was not manifestly excessive, taking into account the seriousness of the offences and the need to protect the community. The court emphasised that the trial judge had considered the principles of proportionality and deterrence when imposing the sentence.

The court accordingly dismissed the appeal and confirmed the sentence of imprisonment for 4 years with a non-parole period of 2 years and 8 months. The court also determined that Williams was an eligible convicted offender under section 18B of the Drug Court Act 1998 and referred him to the Drug Court to determine his eligibility and suitability for a Compulsory Drug Treatment Order.

Orders

Orders of the court

(1) Specify a sentence of imprisonment of 4 years with a non-parole period of 2 years 8 months

(2) Pursuant to s 18B Drug Court Act 1998, by force of which the offender is an eligible convicted offender, refer the offender to the Drug Court to determine whether the offender is eligible and suitable for a Compulsory Drug Treatment Order

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Williams [2022] NSWDC 608
Hearing dates:	06 October 2022
Date of orders:	06 October 2022
Decision date:	06 October 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	(1) Specify a sentence of imprisonment of 4 years with a non-parole period of 2 years 8 months (2) Pursuant to s 18B Drug Court Act 1998, by force of which the offender is an eligible convicted offender, refer the offender to the Drug Court to determine whether the offender is eligible and suitable for a Compulsory Drug Treatment Order
Catchwords:	SENTENCING — Penalties — Drug Court — Eligibility for program SENTENCING — Penalties — Imprisonment
Legislation Cited:	Crimes Act 1900 Crimes(Sentencing Procedure) Act 1999 Drug Court Act 1998 Drug Misuse and Trafficking Act 1985
Cases Cited:	Amante v R [2020] NSWCCA 34 Callaghan v R [2006] NSWCCA 58 DPP(Cth)vDe La Rosa (2010) 79 NSWLR 1 Imbornone v R [2017] NSWCCA 144 Newman v R [2021] NSWCCA 101 RvMasters [2021] NSWDC 315 R v Qutami [2001] NSWCCA 353 Simms v R [2014] NSWCCA 286
Category:	Sentence
Parties:	Rex (Crown) Justin Barry Williams (Offender)
Representation:	Allan Florance (ODPP Solicitor) Adam Williams (Counsel for the Offender) Director of Public Prosecutions (NSW) (Crown) Legal Aid NSW (Offender)
File Number(s):	2021/00228376