R v Williamson

[1996] QCA 548

[1996] QCA 548

COURT OF APPEAL
PINCUS JA
DERRINGTON J

AMBROSE J

CA 392 of 1996
THE QUEEN
v.

DAVID GUY WILLIAMSON	Appellant
BRISBANE ..DATE 01/11/96
JUDGMENT
011196 T11-12/SJ22 M/T COA253/96

PINCUS JA: Mr Justice Ambrose will deliver the first judgment.

AMBROSE J: This was an appeal against conviction and an application for leave to appeal against sentence. The appeal against conviction was abandoned on the hearing and the only question is whether an application for leave to appeal against sentence ought be granted.

The offences of which the applicant was convicted occurred on 3 January 1996. The offences were committed by the applicant and another man named Chessells. At that time the two of them apparently had consumed alcohol and Mr Chessells apparently in that state considered that the occupants of a house in Maryborough had done something that had an effect on his family.

Mr Chessells and the applicant then travelled by taxi cab to the residence of the person thought to have interfered with the family of Mr Chessells. While in the taxi cab there was an indication that they proposed to do something in the house "to fix" the occupants, to use their language.

The house was broken and entered and the contents of the house, or some of them, were destroyed. It seems that there was a car parked outside the house that was used by a babysitter in the house who was chased away from it by the applicant and that car was also damaged. It seems on the material likely that each of the applicant and Mr Chessells damaged the vehicle.

Mr Chessells pleaded guilty to the three charges brought against both him and the applicant. That is, the first one of burglary and then two wilful damage charges. Mr Chessells, who pleaded

2   JUDGMENT

011196 T11-12/SJ22 M/T COA253/96

guilty, was sentenced to three years imprisonment and a recommendation was made that he be eligible for parole after serving nine months of it.

The applicant, on the other hand, pleaded not guilty and was convicted by a jury and upon his conviction he was sentenced to four years imprisonment on the head sentence, the burglary charge, with nine months concurrent for the wilful destruction charges. No recommendation was made with respect to his eligibility.

Looking at the matter generally on the evidence and indeed on the sentencing remarks made by the sentencing Judge when imposing sentence on Mr Chessells it seems that Mr Chessells was the person whose idea it was to visit this house and do damage to the contents because of what he believed the occupants had done to affect his family. It seems that the applicant went along with him.

According to the taxi driver he attempted to calm Mr Chessells down a bit but on the evidence generally of the babysitter who was unfortunate enough to be in the house when the two of them arrived it was the applicant who chased him and it seems clear on the evidence that the applicant and Mr Chessells between them committed the offence of doing wilful damage to the contents of the house and to the babysitter's car outside.

With respect to the application for leave to appeal against sentence the applicant complains that whereas Mr Chessells would be eligible for parole nine months after imposition of sentence

3   JUDGMENT

011196 T11-12/SJ22 M/T COA253/96

he will not be eligible for two years and that there is a sufficient disparity in sentence to justify the interference of this Court.

Both the applicant and Mr Chessells have significant criminal histories and it may be that the offences of which the applicant has been convicted over the years are marginally of a more serious nature than those of Mr Chessells. On the other hand both of them have histories extending over many years and involve mainly simple offences.

The basis upon which Mr Chessells was dealt with more leniently must, it seems to me, be that he pleaded guilty rather than going to trial as did the applicant. There seems to me to be little to distinguish their culpability on the evidence before His Honour when both sentences were imposed and I take the view that, although the sentence of four years imposed on the applicant for the offences of which he was convicted could not be said to be manifestly excessive and indeed one might contend that the sentence of three years imposed on Mr Chessells who seems to have been the leader of the adventure was on the low side, nevertheless, this Court must guard against perceptions of disparity and in my view the applicant has succeeded on demonstrating that there has been a disparity.

In my view, on the facts of this case, his sentence should be no higher than the sentence imposed upon Mr Chessells. I would therefore grant the application, allow the appeal, and reduce the applicant's sentence to one of three years imprisonment.

4   JUDGMENT

011196 T11-12/SJ22 M/T COA253/96

I would not, however, make any recommendation with respect to eligibility for parole. That would have the result that Mr Chessells received some benefit from his plea of guilty. The applicant did not plead guilty and indeed even as late as the time he drafted his notice of appeal he asserted that he could not expand on the circumstances in which the offences were committed because he was not present when they were committed and that one of the things he intended to rely upon in his appeal was that police evidence was withheld which would have proved his innocence.

So there is a degree of lack of remorse demonstrated even when he comes to this Court but nevertheless, in my view, the general attitude towards avoiding disparity of sentences imposed upon joint offenders has been breached in this case.

I would therefore allow the application, I would allow the appeal, and I would impose a sentence of three years imprisonment.

PINCUS JA: I agree. There are two differences, as my brother Ambrose has pointed out, between the treatment accorded this applicant and that accorded to his co-offender; one in the head sentence and the other in relation to the non-parole period. It appears to me that the combination of the two creates an excessive difference between the two sentences and I would therefore propose that the order which Mr Justice Ambrose mentions should be made.

DERRINGTON J: In agreeing with those who have gone before me I

5   JUDGMENT

011196 T11-12/SJ22 M/T COA253/96

would simply confirm that the reason why the penalty should be reduced is the issue of disparity of sentences between that of the applicant and that of Chessells and I would add that I am not impressed by the other propositions that the applicant has put up.

PINCUS JA: The orders of the Court will be: appeal against conviction dismissed, application for leave to appeal against sentence granted, appeal against sentence allowed. The sentence of four years imprisonment imposed below be reduced to three years, otherwise the sentence imposed below confirmed.

-----

6   JUDGMENT