R v Williams - [2004] NSWCCA 246

No judgment structure available for this case.

Reported Decision:
148 A Crim R 325

New South Wales

Court of Criminal Appeal

CITATION: Regina v S B Williams [2004] NSWCCA 246

HEARING DATE(S): 18/06/04

JUDGMENT DATE:
29 July 2004

JUDGMENT OF: Bryson JA at 1; James J at 6; Kirby J at 7

DECISION: By majority:; 1. Leave to appeal granted; 2. Appeal allowed; 3. In respect of count 1 of the first indictment (the malicious wounding with intent) the sentence be quashed and in lieu thereof the applicant be sentenced to 6 years imprisonment to date from 16.10.02 and expire on 15.10.08, with a non parole period of 3 years and 2 months to date from 16.10.02 and expire on 15.12.05; 4. In respect of counts 1 and 2 of the second indictment (the gaol assaults) the concurrent terms of imprisonment of 9 months should in each case be varied so as to commence on 16.05.05 and expire on 15.02.06.

CATCHWORDS: Criminal Practice & Procedure - malicious wounding with intent - whether sentence excessive - whether sentences on other counts inadequate - or should have been accumulation (gaol assaults) s7(1A) Criminal Appeal Act 1912 - whether power to adjust sentences not the subject of appeal.

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Fernando (1992) 76 A Crim R 58
R v Thomson (2000) 49 NSWLR 383
Fernando (No 2) [2002] NSWCCA 28
Pearce v The Queen (1998) 194 CLR 610
R v Hayes [2001] NSWCCA 358
R v Shepherd [2003] NSWCCA 351
R v Goundar (2001) 127 A Crim R 331
R v Morgan (1993) 70 A Crim R 368
R v Salameh (CCA (NSW), 9.6.94, unreported)
R v Trevenna [2004] NSWCCA 43
Veen [No 2] (1988) 164 CLR 465
R v Itamua [2000] NSWCCA 502

PARTIES :
Regina
Steven Brian Williams

FILE NUMBER(S): CCA 60293/03

COUNSEL: G Rowling (Crown)
A Haesler (Appl)

SOLICITORS: C K Smith (Crown)
V Havryliv (Appl)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/61/0151; 02/61/0152

LOWER COURT
JUDICIAL OFFICER : Finnane DCJ

60293/03

BRYSON JA
JAMES J
KIRBY J
Thursday 29 July 2004

REGINA v Steven Brian WILLIAMS

Judgment

1 BRYSON JA: I have had the advantage of reading in draft the judgment of Kirby J. In my respectful view the sentence imposed on the applicant by Finnane DCJ on Count 1 (maliciously wound with intent to do grievous bodily harm) was well within the range of sentences which his Honour could decide upon in the exercise of sound discretion. Nothing said by Finnane DCJ appears to me to reveal any error of principle or of fact, and the conclusion overall about what sentence and non-parole period were appropriate does not appear to me to indicate that any unexpressed error has had any influence. In particular, the starting point of his Honour’s consideration of ten years does not appear to me to be in any way excessive.

2 It is indeed fortunate that the wound inflicted on Mr Bellos was no more serious than it was, but that consideration does little, if anything, to indicate that the starting point of consideration, for an offence the prescribed maximum penalty for which is 25 years’ imprisonment, was in any way severe. The wound was inflicted with a knife: the applicant introduced the use of a knife into the conflict, and with it introduced an element of life-threatening behaviour which until then was not part of the events, deplorable and criminal as those events already were. The wounding was malicious and intended and the bodily harm was grievous.

3 Finnane DCJ discounted the starting point of ten years, in ways which were not fully articulated, to reach the sentence actually imposed: as well as of factors supporting mitigation of the starting point of ten years, consideration was required of the appellant’s lengthy earlier record of criminal convictions, including convictions for crimes of violence, repeatedly punished by imprisonment. Like the starting point, the sentence actually imposed on Count 1 appears to me to be well within the range of sound judgment. Finnane DCJ allowed three and one half years, out of seven and one half years, as time during which parole is potentially to be available, and in view of the applicant’s past response to rehabilitation, this was a decision of some liberality.

4 For these reasons I am of the opinion that the sentence imposed on Count 1 should not be varied on appeal.

5 Except on the subject I have expressly dealt with I agree with Kirby J. The questions which required consideration make it appropriate to grant leave to appeal against sentence, but the appeal should in my opinion be dismissed.

6 JAMES J: I agree with Kirby J.

7 KIRBY J: Steven Brian Williams ("the applicant") seeks leave to appeal against a sentence imposed on 17 December 2002 by Finnane DCJ at Broken Hill. Mr Williams faced two indictments, each containing two counts. The first indictment arose out of a brawl on 7 April 2002 at a cafe attached to the Shell Service Station at Wilcannia. The indictment included the following counts:

Count 1

Count 2

8 The second indictment arose out of an incident a month or so later. On 17 April 2002 the Parole Board revoked Mr Williams' parole. He was then incarcerated at the Broken Hill Correctional Centre. On 19 May 2002 he assaulted two inmates at that Centre. He was charged with two counts of assault occasioning actual bodily harm (s59(1) Crimes Act). The Crown elected to deal with the matter on indictment (maximum penalty: 5 years imprisonment). Mr Williams pleaded guilty in the Local Court and was committed for sentence to the District Court.

9 His Honour imposed the following sentences in respect of the first indictment:

Count 2 (affray)

Count 1 (malicious wound with intent)

10 In respect of the second indictment (the two counts of assault occasioning actual bodily harm), his Honour imposed the following sentences:

Counts 1 and 2

11 The total effective sentence, therefore, was 8 years with a non parole period of 4 years 8 months. The non parole period was calculated by accumulating the non parole period on the affray (6 months), the non parole period on the malicious wound (4 years) and 2 months attributable to the two gaol assaults. The appellant asserts that the sentence on count 1 of the first indictment was manifestly excessive, suggesting that the sentencing Judge made a number of errors. Before dealing with these issues, I should describe the offences.

The Wilcannia offences.

12 At about 8.00 pm on 7 April 2002, Robert Shepherd went to a cafe attached to the Shell Service Station at Wilcannia. The cafe was about to close. He asked for two dim sims. It was obvious to the shopkeeper that he had insufficient money. He asked for credit and was refused. He then began shouting angrily at the person behind the counter. His words and actions were captured on the video surveillance maintained at the premises.

13 Mr Shepherd then left the premises, promising to return. He was plainly drunk. During the course of the day he and two companions, Mr Bugmy and Mr Williams (the applicant), had been drinking a number of casks of wine.

14 Mr Shepherd returned to the cafe a short time later with Mr Williams and Mr Bugmy. Finnane DCJ, who saw the video, described what happened thereafter in these words:

"Things got out of hand after the initial affray. It is obvious from the video that Mr Shepherd and Mr Williams kept coming in and out of the shop. The arguments kept getting louder and louder. Mr Williams produced a knife. He said in evidence here that he carried this knife for his protection. It would appear that he feared retribution being wreaked upon him by members of his own family in Wilcannia for reasons connected with family matters and he was generally fearful of attack at the hands of others. He however had no justification in carrying the knife, much less did he have any justification in producing it.

Mr Shepherd and Mr Williams at one point shown in the video, after Mr Bellos has got a baseball bat and produced it with a view to frightening them off, they are shown abusing him, retreating somewhat, coming back again and then retreating from the shop. Mr Shepherd picked up what appeared to be a garbage tin from outside the shop, came into the shop, Mr Bellos at this stage was in front of the counter, and threw it at him. That knocked him backwards and he lost control of the baseball bat. Mr Bugmy then attacked him, using the sort of tackle that a rugby league player might use and obviously drove him back some distance and onto the floor where he was out of sight of the camera.

Mr Williams raced up with his knife. What then happened was that Mr Bellos was bashed with a baseball bat and stabbed with a knife. Mr Williams did the stabbing. Mr Shepherd was hanging back a bit but then joined in the fray. What part he actually played is completely unclear. Mr Bellos could not really clearly distinguish who was doing what. He did not know any of these people. It is clear Mr Shepherd did run forward to join in the fray but whether he in fact landed a blow or did anything is unclear to me. Certainly he was providing assistance to those who were landing blows and he is thus as guilty as they because he was assisting them in doing what they were doing and the law makes that provision, if you join in with somebody else and help that other person commit a crime you are guilty of the crime yourself."

15 The shopkeeper, Mr Bellos, was taken to hospital. He had a 1 cm stab wound to the left scapula region, requiring four stitches under local anaesthetic. He had a further laceration to the right parietal region, likewise requiring four stitches. It was not described as a stab wound in the medical report which was tendered. It may have been inflicted by the baseball bat. There was a further 1 cm laceration to his left lower lip and a 0.5 cm laceration to the mucus membrane of his left upper lip, presumably the result of a punch or punches. The only wound which was unmistakeably inflicted by Mr Williams was the 1 cm stab wound to the left scapula region.

16 His Honour made the following remarks in respect of these wounds: (ROS p4)

"I have seen photographs of the wounds. They were not life-threatening, nevertheless they caused him discomfort and he had to go to hospital, he had to take time off work, he was shaken up and considerably disturbed by the whole incident. I would expect that he would be affected by this incident in some way or other for the rest of his life, not physically perhaps but certainly mentally."

The assaults in gaol.

17 At 5.30 pm on 19 May 2002 the applicant was standing in a line with other inmates, waiting to be served his evening meal. His brother, Wayne Williams, was standing with him. The applicant said in a loud voice: "Hurry up you white cunts". Another inmate (the first victim) looked back momentarily, and then looked straight ahead.

18 After the meal the applicant approached the person who had looked back. His brother was alongside him. He abused him and then spat in his face. He and his brother seized broom handles which were nearby, which they then used to strike this individual. The applicant's broom handle broke in the course of the attack.

19 Another inmate intervened. The applicant and his brother then turned on that individual (the second victim). He too was abused and hit a number of times with clenched fists. The applicant then attempted to stab him with the broken broom handle.

20 The facts sheet prepared by the police, which was tendered before his Honour, described the injuries sustained by the first victim as "bruising and marks to the body" from fists and the broom handle, and to the second victim as "a laceration to the head, bruising to the hand, and cuts to the face and lips". Both victims were said to have feared for their lives before the intervention of prison officers.

21 The material tendered on sentence included a report from Mr Champion, a psychologist. The report contained the following history given by the applicant to Mr Champion:

"In relation to the incident in the prison, he spoke of making the comment to those in the dinner line in a half joking fashion, though some racial overtones were acknowledged. He spoke of reacting to the 'look' the victim ... had given him, and eventually returned to the scene with a sense of rage, striking the victim first, anticipating that the victim would strike him. He spoke of losing control of his actions, the anger he felt about the events of the previous 2 years (death of mother, deaths of sister and brother, separation from his wife and son) overwhelming him and causing him to act in a violent fashion, and react to what he thought others were saying or doing."

22 Mr Williams gave evidence on sentence. In respect of this incident he said this: (T12)

"A. I thought, well I think or I thought the lad was being racist towards me, you know. Well it was a racial sort of a thing.

23 His Honour, in his remarks on sentence, accepted that Mr Williams believed that he had been called "a dog". His Honour said this: (ROS p7)

".... he attacked two prisoners, both non-Aboriginal, attempting to stab one of them with a broken broom handle. His belief was that one of them called him a dog. To be called a dog in jail is a very serious thing because it suggests you are a prison informer. There seems no reason to suppose that the man concerned called him anything. At the same time I think it quite likely he believed that had in fact occurred and he reacted with considerable violence and irrationality. Both the prisoners were knocked about a bit but not seriously injured. Corrective Services officers were also involved and they received blows attempting to restrain him."

24 When imposing concurrent sentences of 9 months in respect of each assault, his Honour made the following remarks: (ROS p13)

"In relation to the assault occasioning I have decided to impose two concurrent sentences of nine months imprisonment but in fact to make them concurrent with one another and concurrent with the other sentences except for a period of three months so he will do an additional three months for those two assaults."

25 The reference to three months was in fact an error. When the sentences were imposed the addition to the non parole period was two months.

Subjective circumstances.

26 Mr Williams was born on 10 December 1969. He is 33 years old. He has a defacto wife from whom he is separated, and also a young son. He is Aboriginal. He was brought up in Wilcannia. His family was poor. His father died at an early age. He was exposed to violence and excessive drinking. Although he is described as intelligent and articulate, his education was cut short. He left school at the end of Year 9. He has not worked, apart from occasional seasonal and casual work.

27 From an early age Mr Williams abused alcohol and drugs, including cannabis and heroin. He quickly accumulated a lengthy criminal record, mainly for crimes of violence. He was brought before the Children's Court on a number of occasions. Once an adult, he was sentenced in 1989 and 1990 to a short term of imprisonment for assaulting police. On 20 March 1991 he was convicted of two crimes of assault and using an offensive weapon to avoid apprehension. He was sentenced to 1 year 8 months imprisonment, with a non parole period of 15 months. Later the same year he was dealt with in respect of additional charges of assault occasioning actual bodily harm (two counts) as well as assault police. Further terms of imprisonment were added to the sentence he was serving.

28 In July 1994 Mr Williams was again sentenced for assault occasioning actual bodily harm. A term of 1 year 9 months was imposed, with a non parole period of 12 months. Later the same year he was sentenced for assault and rob with striking. He received a 6 year term with a non parole period of 2 years and 3 months. However, when released to parole, he breached the conditions of that parole. Parole was revoked in October 1996. He was required to serve the balance of the term (3 years 6 months), although he was released once more in July 1997.

29 However, at this time Mr Williams was facing further charges. He was convicted of assault occasioning actual bodily harm in late 1996. Again the Parole Board revoked his parole. On this occasion he was released in April 1998. In January 2000 he was sentenced to a short term of imprisonment for assault.

30 In April 2002 Mr Williams was arrested after the incident at the Shell Service Station Cafe at Wilcannia. On 17 April 2002 the Parole Board once more revoked his parole, requiring him to serve the remaining 3 months 24 days of his sentence. It was whilst serving that sentence that he assaulted the other prisoners, the subject of the second indictment (19 May 2002).

31 Mr Williams was examined by a psychologist, Mr Champion. He provided a report of 2 December 2002, which included the following opinion:

"[17] The history as provided is indicative of a long-standing conduct disorder of childhood and adolescence, with anti-social and oppositional-defiant features, which has translated into a personality disorder of adulthood, with anti-social features. I would see the genesis of his maladjustment being in his childhood, through social disadvantage and exposure to violence, exacerbated by substance abuse and repeated incarceration (which tends to blunt sensibilities). His personality appears to be marked by a tendency to rigidity of thought and attitudes, hypersensitivity and deficiencies in personal control; all of which is problematic in an individual with such a significant underlying levels of anger and resentment."

32 Mr Williams has, on a number of occasions, undergone rehabilitation in residential programmes. They have had no impact upon his consumption of alcohol or his substance abuse. Mr Champion made the following observation, which is relevant to the prospects of rehabilitation:

"[26] Perhaps the striking feature with Mr Williams is the level of anger which is evident in him, which when combined with a level of hypersensitivity (bordering at times on paranoia), creates a difficult mix; one which regularly brings him into conflict with others. Mr Williams readily acknowledges his anger, and the difficulties he experiences in controlling it, and his tendency to fly off the handle at the slightest provocation."

33 Mr Champion added:

he is becoming institutionalised, and that any deterrent effect of incarceration has perhaps long ago been lost.

What is clear is that his D & A issues have to be confronted, as do those issues which drive his anger and alienation; and until this can be achieved his prognosis would seem to be poor.

34 In respect of rehabilitation, the sentencing Judge made the following remarks: (ROS 8)

"The problem in sentencing him comes from the fact that he seems to be overwhelmed with a sense of resentment and anger. He has almost what appears to be a paranoid belief that people are out to harm him which causes him to carry weapons. He drinks to excess and takes drugs to excess and is a danger to the community."

35 After the assaults at the Broken Hill gaol Mr Williams was moved to Goulburn and Lithgow gaols, institutions inaccessible to his family, increasing his isolation. He has since been returned to Broken Hill.

Was the sentence on Count 1 excessive?

36 Counsel for the applicant described the reasoning process of Finnane DCJ as "admirably transparent". His Honour identified his starting point and the matters which justified a discount. In respect of the charge of affray (count 2), he said this: (ROS 13)

"Dealing firstly with Mr Williams I took the view that the offence of affray in which he was involved having regard to the part he played in it, his age, the fact that he was prepared to bring a knife along with him, that he was prepared to assault someone behind the counter before getting further involved, the offence would merit a sentence of imprisonment of two years, however, taking into account all the factors that I have mentioned before, Aboriginality, deprivation, early plea of guilty, I have decided that that sentence should be reduced to 18 months and that there should be a six month non parole period."

37 The reference to Aboriginality was a reference to Mr Williams' upbringing in circumstances of social deprivation, making it appropriate to approach the sentencing task in the manner described in R v Fernando (1992) 76 A Crim R 58 at 62-63.

38 His Honour then dealt with count 1, the charge of maliciously wounding with intent. Again he adopted the same approach. He said this: (ROS 13)

"In relation to the malicious wounding offence that is an extremely serious offence. But for the factors that I have mentioned, I would have imposed a sentence of 10 years imprisonment. Because of the factors that I have mentioned, I have reduced that to seven years and six months and I have decided to impose a non parole period which is less than the normal. If I were to do nothing about the normal ratio of non parole period and head sentence, a sentence of seven years and six months would result in a non parole period of five years seven months and 16 days, however I decided to impose a non parole period of four years."

39 The applicant, in these circumstances, makes a number of complaints.

· First, that his Honour overvalued the objective circumstances and undervalued the subjective circumstances, giving insufficient weight to the plea of guilty and the "Fernando matters".

· Secondly, that the starting point of ten years imprisonment was excessive.

40 Dealing with the first matter, the approach of his Honour was unusual. Ordinarily a sentencing Judge is encouraged to identify the discount for the plea of guilty (R v Thomson (2000) 49 NSWLR 383, per Spigelman CJ at 418/419, paras 157, 158 and 160). The other issues should inform the instinctive synthesis used to determine an appropriate sentence. By dealing with the issues "in globo" there was the risk that important aspects of the applicant's subjective case may be undervalued. For the plea of guilty alone one would ordinarily expect a discount of between 20% and 25%. The "Fernando matters" should also have served to moderate the outcome. Yet the figures suggested a total discount of 25%. The inference, according to the applicant, was that one or other aspect had been undervalued.

41 The general principles which should guide the sentencing Judge in respect of the "Fernando" issues were identified by the Chief Justice in Fernando No 2 [2002] NSWCCA 28 in these words:

"[64] As is well established, it is a primary objective of sentencing for criminal offences that the community must be protected from the commission of crimes, by deterring both the particular offender and other possible offenders - referred to as personal and general deterrence respectively. In a case of the character now before the Court, by an offender with this record, the protection of the community requires a substantial period of imprisonment. It is, however, often the case that such considerations of deterrence are properly tempered by considerations of compassion which arise when the Court is presented with information about the personal circumstances which have led an individual into a life of crime.

[65] Such considerations are present in the case before the Court. The Respondent has a personal history of deprivation that is, regrettably, far too common amongst young people, particularly Aboriginal youth.

Neal v The Queen

R v Fernando

R v Hickey

R v Stone

R v Ceissman

R v Pitt

42 The particular mitigating factors to which the Chief Justice was referring were explained by Wood J in Fernando (supra para 31): (at 62)

"While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio economic circumstances an environment that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the Courts of the endemic presence of alcohol within our Aboriginal communities and the great social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralizing factors had placed heavy stresses on them, re-enforcing the resort of alcohol and compounding its worst effects."

43 His Honour was plainly conscious of the Fernando issue, the subjective circumstances of Mr Williams and the early nature of the plea of guilty. I will put to one side for the moment whether his Honour undervalued these circumstances whilst I examine the second complaint.

44 The second complaint was that the starting point of ten years was excessive. The applicant pointed to a number of features of the crime. First, the malicious wounding occurred in the midst of the affray. It was a separate offence. However, there was the danger that because of the shared circumstances giving rise to each offence, there may be double counting. Reference was made to the judgment of McHugh and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610: (at 623)

"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common."

45 Secondly, the nature of the wound, according to the applicant, was not as serious as many matters under s33. It was a one centimetre cut requiring four stitches under local anaesthetic. It was not life threatening.

46 Thirdly, attention was drawn to the statistics from the Judicial Commission. They comprehended a significant number of cases (111). After pleas of guilty, all but 18 were sentenced to less than seven years. Of those cases, 102 were sentenced to a fixed term or a term with a non parole period. Of these, only 21 had a non parole period greater than the four years fixed in this case.

47 Fourthly, the applicant pointed to certain specific cases as providing insight into the appropriate range. Attention was drawn to R v Hayes [2001] NSWCCA 358, which was an appeal against the severity of a sentence under s33 of the Crimes Act 1900. There was a plea of guilty in that case for which the sentencing Judge allowed a discount of 10%, which was held not to have been in error. There were what the Appeal Court described as "horrendous objective factors and slight subjective matters" (para 34). The sentencing Judge described the attack by the offender in these terms:

"A short time later the prisoner came into her bedroom, closing the door behind him, and said to her, 'It looks like I'm going back to gaol'. Miss Garland said, 'Back where?', to which the prisoner replied, 'Back into gaol.' He then began to strike the victim repeatedly with the piece of wood she had observed him carrying. He hit her about the head and face, saying, 'I'm going to kill you, you dirty mother fucker. I'll go back to gaol for you.' Miss Garland attempted to protect herself by putting up her arms. She was struck hard to both arms, causing fractures to both arms and to her fingers. The prisoner continued to attack, striking the victim a number of times on her head and back. At one point the victim managed to grasp the weapon briefly, but the prisoner grabbed it back from her and continued to strike her hard, saying 'You'd better start praying now.' Miss Garland was bleeding heavily from the injuries she had sustained. She began spitting blood. After being hit hard on the temple region she saw blood spurting over the wall. She was struck a number of times.

The prisoner pulled a mosquito net over the victim, wrapping it around her so that she could not move. He continued to strike her repeatedly. She was in a great deal of pain. She was spitting blood, and she spat out a tooth which had been dislodged. She believed the prisoner intended to kill her. She endeavoured at one stage to pretend that she had lost consciousness. However, each time she showed signs of consciousness the prisoner resumed the attack upon her. Her best estimate is that the attack lasted for about twenty minutes, toward the end of which time she was slipping in and out of consciousness.

Eventually the prisoner desisted from the attack. The victim heard him moving about in the room before he left. He made no attempt to get help for the victim. She was discovered by the children about an hour and a half later. An ambulance conveyed her to hospital where she underwent more than nine hours of surgery."

48 Her Honour sentenced the offender to imprisonment for 11 years and 8 months, with a non parole period of 8 years and 9 months. The appeal, asserting that the sentence was excessive, was dismissed.

49 Finally, the applicant pointed to the sentences imposed upon co-offenders and specifically the sentence, adjusted on appeal, in respect of Mr Shepherd ([2003] NSWCCA 351). Mr Shepherd was the person who started the "brawl". Whilst there were differences between his case and that of Mr Williams, there was a need for some proportionality or relativity between sentences. Mr Shepherd was ultimately sentenced to two years imprisonment with a non parole period of one year.

50 The Crown, in its submissions, suggested that R v Hayes (supra para 41) was plainly a more serious case. One case does not establish a range. The statistics from the Judicial Commission demonstrate that a head sentence of 7-1/2 years was "within the range", as was the non parole period. Here the victims were vulnerable, operating a cafe at night on the outskirts of a remote country town (cf R v Goundar (2001) 127 A Crim R 331, para 36). The circumstances of Mr Shepherd were quite different. In that case the Judge specifically found that Mr Shepherd was not aware that Mr Williams had a knife. He was sentenced upon the basis that the wounding was occasioned by punching the proprietor of the cafe in the course of the affray. Mr Williams, on the other hand, stabbed that person with a knife. There was no absence of proportionality.

51 The offence of malicious wounding with intent is plainly a serious offence. The maximum penalty is 25 years imprisonment. The circumstances in which Mr Shepherd was sentenced were so different to those of Mr Williams that there was no obvious absence of proportionality. The case of Hayes does not establish a range, although it does underline the breadth of conduct comprehended by the section.

52 However, the practice of referring to specific sentences under the same section is neither helpful nor justified by authority (cf R v Morgan (1993) 70 A Crim R 368; R v Salameh (CCA (NSW), 9.6.94, unreported); R v Trevenna [2004] NSWCCA 43, per Barr J at 98 to 101). Other cases, at best, become part of a range of sentencing.

53 Here, having regard to the criminal record of Mr Williams, the violent nature of his crimes, and his apparent indifference to rehabilitation, the issues identified by the majority in Veen [No 2] (1988) 164 CLR 465 were matters of some importance. In that case, the High Court (Mason CJ, Brennan, Dawson and Toohey JJ) said this: (at 477)

protection of society may all indicate that a more severe penalty is warranted

54 Nonetheless, giving due weight to such matters, the sentence imposed was, in my view, excessive. There was a single stab wound. It was superficial. It was not life threatening. It did not cause lasting physical damage. Mr Williams was separately punished for his part in the affray. The starting point of ten years was, in my view, too high. Error has been demonstrated.

Was there compensating error?

55 When the appeal was argued, there was debate as to whether there was a further error, this time favouring of the applicant, in respect of the second indictment, the gaol assaults. The assaults appeared to be serious. Yet the sentence for each was 9 months imprisonment concurrent with each other and concurrent, except for 2 months, with the sentences on the charges on the first indictment.

56 This gave rise to a question: Was Mr Williams' sentence of 8 years with a non parole period of 4 years and 8 months a reasonable reflection of his overall criminality even though, arguably, the structure of the sentence (attaching too long a period for the malicious wounding and too short for the gaol assaults) was wrong? If it was wrong, did this Court have the power under s7(1A) of the Criminal Appeal Act 1912 to address these issues? The applicant had appealed only against count 1 on the first indictment. There was no Crown appeal against the sentences imposed in respect of the assaults.

57 Having debated the issues, the parties were given leave to file supplementary submissions.

The concurrent sentences for the gaol assaults.

58 When the Crown prosecutor made submissions on sentence before Finnane DCJ, he drew attention to s56 of the Crimes (Sentencing Procedure) Act 1999. That section is in these terms:

56 Sentences for offences involving assault by convicted inmates

(1) This section applies to a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre.

(2) In the absence of a direction under this section, a sentence of imprisonment imposed on an offender:

(a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or

(b) ....

is to be served consecutively with the other sentence of imprisonment ...

(3) The court imposing the sentence of imprisonment may instead direct that the sentence is to be served concurrently (or partly concurrently and partly consecutively) with the other sentence of imprisonment ... "

59 The section identifies what is meant by "a sentence of imprisonment" in these terms:

"s56(5) In this section, a reference to a sentence of imprisonment is taken to be a reference to:

(a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or

(b) the term of the sentence, in the case of a sentence for which a non-parole period has not been set."

60 The Crown prosecutor, in the sentencing submissions before his Honour, said this: (T8)

"... the section says, 'a convicted inmate of a correctional centre'. So your Honour may conclude that it does not apply in this case. But I just draw it to your honour's attention."

61 His Honour, when sentencing Mr Williams for the assaults, did not refer to s56. He did, however, make the sentences concurrent, except as to 2 months.

62 An affidavit was filed by the Crown clarifying aspects of Mr Williams' incarceration at Broken Hill at the time of the assaults. Mr Williams had been sentenced to 6 years imprisonment with a non parole period of 2 years and 3 months in 1994. He was released upon the expiration of the non parole period. However, his parole was revoked from time to time thereafter, as he committed further offences, or breached the conditions of parole. When revoked, he was not required to serve the full sentence which remained. He was again given parole, which again was revoked when he was found to be in breach. On each occasion the balance of the sentence was recalculated before his release. In this way his 1994 sentence stretched into 2002. On 17 April 2001 the Parole Board revoked Mr Williams' parole because he had failed to report to his supervising officer, failed to live at the address which had been agreed, and failed to abstain from alcohol. It was acknowledged by both parties that, in these circumstances, the assaults by Mr Williams were assaults "committed by an offender while a convicted inmate of a correctional centre".

63 However, it seems to me Mr Williams does not meet the definition of "sentence of imprisonment" in s56(5). The sentence imposed in 1994 was a term of imprisonment in which a non parole period was set, namely, 2 years and 3 months. That period had long since expired. In serving the balance of his sentence he is not subject to a "sentence of imprisonment" for the purposes of s56(5). Accordingly, it cannot be said that his Honour was in error in failing to advert to s56 or failing to accumulate the sentences in respect of the second indictment.

The powers of the Court under s7(1A).

64 However, whether or not there was such error, an issue arises under s7(1A) of the Criminal Appeal Act. In R v Itamua [2000] NSWCCA 502, Smart AJ made the following comments on the facts in that case and the unsatisfactory state of the law: (para 55)

"The situation which exists is anomalous but there is no statutory provision which enables the Court to overcome it, where, as here, there is an excessive sentence on one count and inadequate sentences on all or most of the other counts. There is a pressing need for remedial legislation to cover this unfortunate gap. Regrettably, the Court is bound to proceed on the basis that it cannot disturb any of the current fixed term three year sentences. ..."

65 Section 7(1A) of the Criminal Appeal Act 1912 was introduced to address this issue. In its original form it was in these terms:

7 Powers of court in special cases

(1A) If on an appeal against a sentence under section 5(1), 5D, 5DA or 5DB, the court quashes or varies the sentence passed at trial on any count or part of the indictment, the court may quash or vary the sentence passed at the trial on any other count or part of the indictment and pass such sentence, whether more or less severe, in substitution for it as the court thinks proper, and as may be warranted in law by the conviction on that other count or part of the indictment."

66 The section contemplates "an indictment". Here there were two indictments. Adjustments, were they to be made, would involve both indictments. However, there was no power under that provision to make such adjustments.

67 In July 2003 (with operation from 18 August 2003) the section was amended. The Court was given power to adjust sentences where there was more than one indictment. The amended section was expressed in these terms:

"7(1A) If on an appeal against a sentence under section 5(1), 5DA or 5DB, the court quashes or varies the sentence passed at trial on any count or part of an indictment, the court may quash or vary any other sentence passed at the trial:

(a) in relation to any offence charged in any other count or part of the same indictment, or

(b) in relation to any offence charged in any other count or part of any indictment, or

(c) in relation to any offence dealt with under section 105 of the Criminal Procedure Act 1986, or

(d) in relation to any back up offence or related offence dealt with under section 167 of the criminal Procedure Act 1986,

and pass such sentence, whether more or less severe, in substitution for the other sentence as the court thinks proper, and as may be warranted in law, in respect of the offence."

68 The incident at Wilcannia, giving rise to the first indictment, occurred on 7 April 2002. The gaol assaults took place on 19 May 2002. Accordingly, unless the amending section operated retrospectively, there was no power to make any adjustment (if that was thought appropriate) in the present case. The Crown, in these circumstances, made the following submission:

"7. It is not contended that this Court has power, pursuant to the provisions of section 7(1A) of the Criminal Appeal Act 1912, to vary the sentences imposed by his Honour for the offences of assault occasioning actual bodily harm."

69 The submission is plainly right. The section affected substantive rights. It operated prospectively (cf Pearce & Geddes, "Statutory Interpretation in Australia" (4th Ed) p254 ff).

70 Whatever view the Court were to take concerning the overall criminality of Mr Williams, the issue on this appeal is confined to count 1 of the first indictment. In respect of that issue, the applicant, to my mind, has demonstrated error. There is therefore a need to resentence.

Resentence.

71 An affidavit was filed, sworn by Mr Williams, dated 5 June 2001. He describes his experience in gaol since being sentenced. He was initially transferred to other gaols. However, he has now been returned to Broken Hill. He has been placed on "strict protection". He has undertaken courses and claims to have benefited from them. He said that he has begun art work, which he hopes in time to be able to sell. He has, on occasions, breached prison discipline and been punished. He says that he has begun to recognise the damaging effect of alcohol and drugs and its connection with his offending behaviour. He has also recognised his need to deal with anger.

72 In respect to the plea of guilty, I would allow a discount of 20%. I would, for the same reasons as his Honour, find special circumstances. Mr Williams clearly has a problem with alcohol, drugs and anger. He will require greater than usual supervision.

73 In my view, the appropriate sentence on count 1 of the first indictment is 6 years imprisonment with a non parole period of 3 years and 2 months. The remaining aspects of Mr Williams' sentence are confirmed, subject to the adjustments consequent upon the alteration to the sentence on count 1.

74 The position overall therefore will be as follows:

· On count 2 (affray) a sentence of 18 months imprisonment to date from 16.04.02 and expire on 15.10.03, with a non parole period of 6 months to date from 16.04.02 and expire on 15.10.02.

· On count 1 (malicious wounding) imprisonment for 6 years to date from 16.10.02 and expire on 15.10.08, with a non parole period of 3 years and 2 months to date from 16.10.02 and expire on 15.12.05.

· On each of counts 1 and 2 (gaol assaults) 9 months imprisonment on each, concurrent, to date from 16.05.05 and expire on 15.02.06.

Order

75 The order I propose is as follows:

1. That leave to appeal be granted.

2. That the appeal be allowed.

3. That in respect of count 1 of the first indictment (the malicious wounding with intent) the sentence be quashed and in lieu thereof the applicant be sentenced to 6 years imprisonment to date from 16.10.02 and expire on 15.10.08, with a non parole period of 3 years and 2 months to date from 16.10.02 and expire on 15.12.05.

**********

Last Modified: 08/06/2004

Citations

R v Williams [2004] NSWCCA 246

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CITATION:	Regina v S B Williams [2004] NSWCCA 246
HEARING DATE(S):	18/06/04
JUDGMENT DATE:	29 July 2004
JUDGMENT OF:	Bryson JA at 1; James J at 6; Kirby J at 7
DECISION:	By majority:; 1. Leave to appeal granted; 2. Appeal allowed; 3. In respect of count 1 of the first indictment (the malicious wounding with intent) the sentence be quashed and in lieu thereof the applicant be sentenced to 6 years imprisonment to date from 16.10.02 and expire on 15.10.08, with a non parole period of 3 years and 2 months to date from 16.10.02 and expire on 15.12.05; 4. In respect of counts 1 and 2 of the second indictment (the gaol assaults) the concurrent terms of imprisonment of 9 months should in each case be varied so as to commence on 16.05.05 and expire on 15.02.06.
CATCHWORDS:	Criminal Practice & Procedure - malicious wounding with intent - whether sentence excessive - whether sentences on other counts inadequate - or should have been accumulation (gaol assaults) s7(1A) Criminal Appeal Act 1912 - whether power to adjust sentences not the subject of appeal.
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Fernando (1992) 76 A Crim R 58 R v Thomson (2000) 49 NSWLR 383 Fernando (No 2) [2002] NSWCCA 28 Pearce v The Queen (1998) 194 CLR 610 R v Hayes [2001] NSWCCA 358 R v Shepherd [2003] NSWCCA 351 R v Goundar (2001) 127 A Crim R 331 R v Morgan (1993) 70 A Crim R 368 R v Salameh (CCA (NSW), 9.6.94, unreported) R v Trevenna [2004] NSWCCA 43 Veen [No 2] (1988) 164 CLR 465 R v Itamua [2000] NSWCCA 502
PARTIES :	Regina Steven Brian Williams
FILE NUMBER(S):	CCA 60293/03
COUNSEL:	G Rowling (Crown) A Haesler (Appl)
SOLICITORS:	C K Smith (Crown) V Havryliv (Appl)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/61/0151; 02/61/0152
LOWER COURT JUDICIAL OFFICER :	Finnane DCJ