R v Williams

Case [2013] SASCFC 26

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WILLIAMS

[2013] SASCFC 26

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)

18 April 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

The appellant was sentenced in the District Court for a number of serious offences committed in two groups - he was on parole at the time of the offending and so the sentences imposed rendered him liable to serve the unexpired balance of a previous sentence, being two years and nine months - the Judge sentenced the appellant to cumulative sentences of five years and three months imprisonment for the first group of offending and 11 years and three months for the second, and fixed a non-parole period of eight years and one month, excluding time already served - the appellant appeals against each of the two sentences and against the non-parole period on the ground that they are manifestly excessive.

Held (allowing the appeal):

(1) (per Gray J):  the Judge did not have proper regard to the principle of totality and the Judge's sentencing discretion miscarried - the overall effect of the sentences imposed was crushing (at [27], [29]);

(2) (per Vanstone J):  the overall sentence imposed was towards the upper end of the available range, but nevertheless within that range (at [48]);

(3) (per White J):  the period of five years and three months for the first group of offences cannot be characterised as manifestly excessive, but the Judge erred in his fixation of the second sentence - the Judge should have concluded that some of the purpose of the second sentence was likely to be achieved by the appellant's completion of his previous sentence and of the first sentence, and that the imposition of the second sentence cumulatively on the first offended the totality principle (at [62], [73]);

(4) (per White J):  the Judge miscalculated the unexpired balance of the previous sentence as two years and three months when in fact it was two years and nine months (at [74]);

(5) (per Vanstone and White JJ): the Judge erred in deducting the period already served in custody from the aggregate of the periods to be served with the effect that there were no longer separately identifiable sentences for each group of offences, and there was a failure to give effect to s 75 of the Correctional Services Act 1982 (at [49], [52], [77]-[78], [95]);

(6) (per Vanstone and White JJ):  the sentences imposed by the Judge should be set aside - upon re-sentence, a sentence of five years and three months should be imposed for the first group of offences, and a sentence of nine years and three months for the second group of offences - the appellant is to…

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R v Williams [2013] SASCFC 26
Case
[2013] SASCFC 26
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CaseChat Overview and Summary

The appellant, who was on parole at the time of the offences, appealed against sentences imposed by the District Court for two groups of serious criminal offences, as well as the non-parole period fixed. The appellant contended that the cumulative sentences of five years and three months imprisonment for the first group of offending and eleven years and three months for the second, with a non-parole period of eight years and one month, were manifestly excessive and that the sentencing judge failed to adequately consider the principle of totality.

The court was required to determine whether the total sentences imposed were manifestly excessive, particularly in light of the principle of totality, and whether the non-parole period was appropriate given the circumstances of the offending and the appellant's background. The offences included aggravated robbery, use of a motor vehicle without consent, aggravated serious criminal trespass, and theft, some of which carried maximum penalties of life imprisonment. The appellant, aged 22 at the time of the offending, had a history of similar offences and was on parole when the current crimes were committed.

The court found that the cumulative sentences imposed by the District Court were crushing and excessive, failing to adequately apply the principle of totality. The court noted the appellant's disadvantaged background and the fact that he had served a significant period in custody between his arrest and sentencing. Consequently, the court set aside the sentences imposed by the District Court and, pursuant to section 18A of the Sentencing Act, imposed a single sentence of nine years imprisonment for all the offending. This sentence was directed to commence on 10 September 2012, with a non-parole period of five years.

Orders

Orders of the court

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Background

Background to the litigation

On the appeal, it was submitted that the overall effect of the sentences imposed was crushing and, in the circumstances, manifestly excessive. It was contended that the sentencing Judge failed to have adequate regard to the principle of totality. Background The defendant pleaded guilty to the offences of aggravated robbery at Cash Converters and use of a motor vehicle without consent on 22 September 2009. The offending involved the theft of jewellery to the value of about $30,000.00. The defendant was in the company of others. The offenders were armed with a machete and a wrench. Although the offending took place in circumstances of intoxication, there was evidence of some planning through the offenders being armed and disguised. The defendant pleaded guilty to further offending that occurred less than three weeks later on 9 October 2009. That offending included the offences of aggravated serious criminal trespass in a non-residential building, theft and the use of a motor vehicle without consent. The offending took place at the Black Forest Bakehouse. The offending involved the use of a firearm. A cash register and cash were taken. Later, on the same day, the defendant committed the offence of aggravated robbery at the premises of a Café de Vili’s in Mile End. This offending involved the use of a firearm which was aimed at persons present. Cash of about $1,200.00 was taken. Later, again on the same day, the defendant committed the offences of aggravated serious criminal trespass in a place of residence and aggravated robbery at Clarence Park. A firearm was used. It was aimed at a person present and accompanied by a threat that he would be shot if the demand was not met. The offences of aggravated robbery and aggravated serious criminal trespass in a place of residence carried a maximum penalty of life imprisonment. The offence of aggravated serious criminal trespass in a non-residential building carried a maximum penalty of 20 years imprisonment. The offence of theft carried a maximum penalty of 10 years imprisonment. The offences of using a motor vehicle without consent for a first offence carried a maximum penalty of two years imprisonment and for a subsequent offence, carried a maximum penalty of a term of imprisonment of not less than three months and not more than four years. The defendant was aged 22 years at the time of the offending, and 25 years when sentenced. The defendant has lengthy criminal antecedents, including convictions for robberies using a weapon. At the time of the commission of the subject offending he was on parole. His breach of parole was a circumstance of aggravation. The evidence of the defendant’s personal antecedents provides some explanation for embarking on a life of crime. He comes from disadvantaged circumstances. He is a member of an indigenous family in which both parents were heavy consumers of alcohol. His parents separated when he was aged about four years. His mother was so concerned about inappropriate conduct by his father that she threw him out. The defendant’s father was often in prison. The defendant was the youngest of three siblings, all of the same mother but with different fathers. One brother committed suicide when aged 18 years.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J WHITE J
It is to be recognised that the Parole Board will have the responsibility of making a decision as to whether the defendant, on application, should be granted parole. The Board will have the opportunity to assess the defendant’s progress. The Board will also have the ability to fashion terms of parole to suit the defendant’s particular needs. Conclusion I would set aside the sentences imposed by the District Court. I would sentence the defendant pursuant to section 18A of the Sentencing Act to a single sentence in regard to all offending to a term of imprisonment of nine years. I would direct that this term commence on 10 September 2012, the date on which the defendant was sentenced in the District Court. It is to be understood that by this time the defendant had fully served the unexpired period of parole and had spent a further two months in custody awaiting sentence. I have had regard to these matters in fixing the one head sentence of nine years imprisonment in respect of the offending of September and October 2009. I would fix a non-parole period of five years. VANSTONE J: The appellant stood for sentence in the District Court for a number of serious offences committed in two groups. He was on parole at the time of the offending and so the sentence imposed gave rise to the liability to serve two years and five months of the previous sentence. About three years was spent in custody between arrest and sentence. The appellant was just short of his twenty-third birthday at the time of the most recent offending. The effective head sentence for the new offending was a total of sixteen and a half years imprisonment. The unexpired parole part of the earlier sentence was added. A provisional non-parole period of 11 years was fixed, being some 58 per cent. From both the head sentence and non-parole period the time in custody was deducted.Background It is instructive to set out the course of events which led up to the sentence under appeal.17.08.2007Appellant is sentenced in the District Court to six years imprisonment for three counts of armed robbery, and illegal use, and the suspension of an earlier sentence of four months imprisonment is revoked and accumulated. A non-parole period of two years and six months is fixed to run from 22 February 2006.20.01.2009Approximate date of release on parole.22.09.2009Appellant commits robbery at Cash Converters store at Kilkenny, aggravated both by being in company with two others and by being armed (count 1); maximum penalty life imprisonment. The offenders were disguised. They smashed display cases and stole about $30,000 worth of jewellery, leaving in an illegal used car driven by a fourth man (count 2); maximum penalty imprisonment for four years."Balance of previous sentence is two years and nine months.(I note that, on the advice of the Parole Board, the judge calculated this period as two years and three months. It appears that from 15 October 2009 to 14 April 2010 the appellant was serving a period of six months on account of a breach of condition of his parole. The Court has no information about this. However, the period of six months need not play a part in the calculation as long as the balance of the previous sentence is reckoned from the date of commission of the first offence and credit is given from the date when the appellant was arrested and went into custody, as now directed by s 75(3) Correctional Services Act 1982.)9.10.2009Appellant commits serious criminal trespass at the Black Forest Bakehouse, smashing a door to enter and intimidating employees, an offence aggravated by his being in company with another man and by the use of a firearm (count 6); maximum penalty life imprisonment. A cash register and cash are stolen (count 7); maximum penalty imprisonment for ten years. A stolen car is used (count 8); maximum penalty imprisonment for four years."Appellant commits robbery at the premises of Café de Vili’s at Mile End South, some $1,200 being stolen, the offence being aggravated by his being in company with three others and by being armed (count 9); maximum penalty life imprisonment."Appellant commits serious criminal trespass at a home at Clarence Gardens, an offence aggravated by the presence of the occupiers, being in company with two others and by being armed with a firearm which was levelled at one of the homeowners (count 11); maximum penalty life imprisonment. The householder’s motor vehicle is taken, being robbery, again aggravated by being in company and by being armed (count 12); maximum penalty life imprisonment.13.10.2009Appellant arrested and remanded in custody.5.10.2011Appellant pleads guilty to counts 1 and 2 on information of 5 October 2011 (replacing first information of 13 September 2010).27.10.2011Appellant pleads guilty to counts 6, 7, 8, 9, 11 and 12 on second information of 13 September 2010. Trial fixed for 7 November 2011, now vacated.10.09.2012Appellant sentenced by Judge Soulio.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J, WHITE J

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