R v Wilson; R v Beath-Williams
[2022] ACTSC 20
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wilson; R v Beath-Williams |
Citation: | [2022] ACTSC 20 |
Hearing Date: | 2 February 2022 |
DecisionDate: | 2 February 2022 |
Before: | Norrish AJ |
Decision: | See [108]-[109] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – reckless wounding – aggravated robbery – co-accused – disadvantaged background – drug and alcohol dependence – Bugmy principles – parity – totality of criminality – breach of conditional liberty – vulnerable victim |
Legislation Cited: | Crimes Act 1900 (ACT) ss 19, 20 Crimes (Sentencing) Act 2005 (ACT) ss 10, 12, 33, 35, 36 Criminal Code 2002 (ACT) s 45 |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 |
Parties: | The Queen (Crown) Ashleigh Wayne Wilson (Offender) Andrew James Francis Beath-Williams (Offender) |
Representation: | Counsel S Jerome (Crown) J Sabharwal (Offender – Wilson) J White SC (Offender – Beath-Williams) |
| Solicitors ACT Director of Public Prosecutions (Crown) Tim Sharman Solicitors (Offender – Wilson) Legal Aid ACT (Offender – Beath-Williams) | |
File Numbers: | SCC 139 of 2021 SCC 140 of 2021 |
NORRISH AJ:
Two prisoners appear before me today for sentence. One prisoner is Andrew James Francis Beath-Williams, who appears for sentence in relation to a charge to which he pleaded guilty last year, that he on 1 October 2020 at Canberra in the Australian Capital Territory was knowingly concerned in the reckless infliction of grievous bodily harm upon Petar Matic by another person Ashley Wilson, the co-accused. This is an offence contrary to a combination of s 20 of the Crimes Act 1900 (ACT) (the Crimes Act) and s 45 of the Criminal Code 2002 (ACT) (the Criminal Code) and, I am informed by the learned Crown prosecutor, has a maximum penalty of 13 years' imprisonment.
Mr Ashleigh Wilson appears for sentence in relation to two offences to which he pleaded guilty in October last year. One offence is the offence of, on 1 October 2020, intentionally inflicting grievous bodily harm upon Peter Matic and a second offence, related in time and very intimately connected with the facts of the first matter, of committing robbery in company with one or more persons and, at the time, being in possession of an offensive weapon, or aggravated robbery as it is described. The intentional infliction of grievous bodily harm offence, contrary to s 19 of the Crimes Act, carries a maximum penalty of 20 years' imprisonment. The aggravated robbery carries a maximum penalty of 25 years' imprisonment and/or a fine of up to $400,000.
I have accorded in the fixing of the appropriate penalties to each offender a discount reflecting the utilitarian value of the pleas of guilty, taking into account all that has been put to me by the parties.
In your case, Mr Beath-Williams, I have accorded you a discount of 25 per cent on the otherwise appropriate sentence.
In your case, Mr Wilson, I have accorded you a discount of 20 per cent on the otherwise appropriate sentence.
That is reflected in the orders that I will make. I will come back to the operation of s 35 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) briefly in the context of the submissions that were made and the evidence available to me.
Each of the prisoners has been in custody since the beginning of February last year. In the case of Mr Wilson, he has been in custody since he was arrested in Tasmania on 4 February 2021. He was extradited to the ACT a few days after his arrest and I take into account all of the time he has been in custody and his sentences will be backdated to take into account that time.
Likewise, in the case of Mr Beath-Williams, he has been in custody since 10 February 2021 and all time spent in custody has been taken into account.
In the situation of Mr Beath-Williams, I have had careful regard to the oral submissions of the learned Senior Counsel representing his interests and I have formed the view that whilst I would not give him a discrete discount for the co-operation to the authorities as identified pursuant to s 36 of the Sentencing Act, I am prepared to accept his assistance to the investigators as a mitigating matter relevant both to his contrition and generally mitigating as it affects both the head sentence and the non-parole period.
In fact, I note in relation to the terms of s 36 of the Sentencing Act that where an offender provides assistance to authorities in relation to the relevant proceeding, a court may impose a lesser penalty including a shorter non-parole period on the offender than it would otherwise have imposed having regard to the degree of assistance provided pursuant to s 36(2). In my view, there is not a need to discretely identify that assistance by a percentage figure, as can sometimes be done.
It seems to me, usually, that in giving a percentage for a discount for that matter one would need to have regard, for example, to the perhaps future requirement to reconsider the extent of that discount if the co-operation is not given in the future that may have been promised. This is not such a case. But it certainly is relevantly a mitigating factor in the manner in which I have outlined.
If I could turn to the facts of the matters as they emerge from the statement of facts and noting what has been said about the facts in the submissions of the parties.
The offenders were known to one another. I have been informed that Mr Wilson is an uncle of the prisoner. It should be pointed out Mr Wilson was an older man than the offender, as I understand it 34 years of age at the time of the commission of the offence. The prisoner, Mr Beath-Williams, is a young man now, as I would understand it, 24 years of age. But the two offenders were known to one another for some period of time, obviously, before the commission of the offence. There is nothing suspicious or sinister about their relationship. These two men and another man, Mr James Taylor, believed the victim had sexually abused a young friend of theirs.
The three men discussed causing physical harm to the victim in retribution and the two prisoners lured, as it is described in the statement of facts, the victim to a car park in the Canberra city under the guise of purchasing cannabis from a mutual acquaintance or young woman, Ms Emma Gill. She has not been charged in relation to this matter, as was pointed out by learned senior counsel for Mr Beath-Williams, but ultimately the absence of any charge brought against her is not a matter of significance in the treatment of these two prisoners. I should point out that the third man involved in this affair, Mr Taylor, has not been charged but the reason for that is he has not been found by the authorities.
The essence of the offending, as it relates to Mr Beath-Williams, was that he drove himself, Mr Wilson, and Mr Taylor to the scene of the arranged meeting with the victim. He was aware that Mr Wilson and Mr Taylor each carried a knife although he was unaware of the fact that the knives were to be used to stab the victim, as occurred. When the meeting occurred with the victim, the victim was, as the statement of facts assert, 'ambushed' and seriously assaulted inside the car in which he met with the offenders Mr Wilson and the man, Mr Taylor.
The victim was in the presence of his mother. Mr Wilson stabbed the victim in the neck with a knife and Mr Taylor also stabbed the victim at least once with a knife. During the course of the attack, Mr Wilson and Mr Taylor demanded jewellery and money from the victim. The victim's watch was taken, not of great value but, of course, of personal value to the victim, as was $110 in cash. I am assuming, although it is not necessarily important in the outcome of the matter, that was cash that the victim had brought on the understanding that he was going to buy some cannabis.
The attack upon the victim occurred for some period of time. He estimated the attack lasted for 15 to 20 minutes. But it may well have been shorter than that. Certainly a number of events happened very swiftly and, as was pointed out, a great deal of confusion arose as to the circumstances of the attack, who did what and, in fact, who was involved. One of the features of the case is the issue of Mr Taylor's identity. It would seem as though the investigators, I am relying now upon Senior Counsel for Mr Beath-Williams' submission, were unaware of Mr Taylor's involvement in the matter until Mr Beath-Williams supplied information about Mr Taylor when interviewed on 10 February 2021.
The victim's mother, who was present but not injured herself, drove off to get assistance and the victim was treated at The Canberra Hospital emergency department having been picked up by an ambulance from a service station. I note, in relation to the matter, that what had occurred between Mr Wilson, Mr Taylor, and the victim was not precisely known to Mr Beath-Williams. As I said earlier, whilst he was aware of the possession of knives, he variously believed that the victim was to be either bashed or, alternatively, spoken to, about the alleged sexual abuse of the mutual friend.
There is independent evidence to show that Mr Beath-Williams was very concerned about what had happened when he discovered the ultimate outcome of the confrontation. He told Ms Gill, who he saw later that night, “Oh fuck, it went wrong. It was just meant to be a bashing. Petar got stabbed.” He said, presumably based upon what he had been told by others, that Mr Wilson “got into the back seat of the car”, “Petar was with his mum”, and “Ashleigh stabbed him”.
The victim suffered a number of injuries. Firstly, a wound to the left side of his neck, a photograph of which I have seen. A stab wound to the neck is, of course, a significant injury because of the risk of causing life threatening consequences. There was a stab wound to the thigh, both the lateral thigh ,and the posterior thigh. There were wounds to the left hand in the palm of the hand. There was a fracture of a nasal bone. There was a bruising to the left side of the head and eye, and other bruising to the head. The victim required hospitalisation, went under general anaesthetic, and the stab wounds to the thigh and to the hand required surgery. There are various complications said to arise from these injuries which could be regarded as permanent complications, but not life threatening. The victim has numbness and reduced flexion to one finger. He has permanent scarring to the left side of the neck, the left thigh, and the left hand.
The victim is, of course, no doubt traumatised by the conduct of the prisoner and in that regard I have paid attention to the Victim Impact Statements of the primary victim and his mother who was present and an eyewitness to what occurred. Reference was made I hasten to say, and I will come back to this shortly by reference to the legislation, particularly to s 33 of the Sentencing Act, to the fact that the victim was a vulnerable person, as was his mother. His mother was not a primary victim, it should be pointed out. Her vulnerability arose out of her presence, but she was not injured. No crime is alleged against either offender in respect of any conduct towards her.
The vulnerability of the primary victim can be identified, it must be said, by the fact that he was in a location present with the two men that were armed, he being unaware that they were armed. He could not call upon his mother to provide assistance to him. But his vulnerability is at a low level. There are many degrees of vulnerability and this is not such an extreme case of vulnerability as to what required significant aggravation to be found in the objective offending. Bearing in mind, of course, that he had come to the meeting suspecting that he was going to be involved in the drug transaction – the offenders having organised something different for him.
The prisoner, Mr Wilson, fled New South Wales the day after the attack. Of course he had much to be concerned about. The extent to which he was identified as an offender is not entirely clear to me and, I must say, I do not have all the evidence available to me. I received some conflicting information which I need not dwell upon in that regard. But certainly he was known sufficiently to the investigators to be arrested in Tasmania on 4 February 2021, having travelled firstly to New South Wales and then to Tasmania to avoid apprehension.
His post-offence conduct is not a matter that operates as an aggravating factor, to be fair. But he did endeavour to avoid apprehension. That having been said he also confessed to the attack upon the victim, without naming the person, when he gave particulars of the attack to a ‘girlfriend’ in early January 2021. He in fact, at that time, showed that girlfriend the knife that he used to stab the male. She contacted the police, it would appear, arising out of their conversation but whether that was the first occasion, that is on the 8 January 2021, that the police were aware of the identity of this particular prisoner I am unaware.
As I said in relation to the other man, Mr Taylor, there was no information to identify him and I accept what has been put to me based upon what has been read from the record of interview with the prisoner Mr Beath-Williams that, in fact, initially the investigators did not accept the assertion of the prisoner that Mr Taylor had been involved. It turned out that the information provided to the prisoner was truthful and I see that as an important matter to take into account by reference to s 36 of the Sentencing Act.
With regard to Mr Beath Williams he was initially interviewed in relation to the matter in 2020 and denied involvement. He was interviewed whilst in custody in relation to unrelated matters. On 10 February 2021 when he came into custody in relation to this matter, he gave an extensive interview and volunteered information about his involvement in the affair.
The Crown, very helpfully, in the statement of facts set out at a great deal of the detail relating to the admissions made by the prisoner and, as I understand it, the prosecution of this prisoner, the acceptance of his plea of guilty to the charge brought, and the facts of the matter as presented to the court, are dependent upon the admissions that Mr Beath-Williams made to police on the 10 February 2021 which is to his credit.
Coming back very briefly to the plea of guilty of each man, I have noted s 35 of the Sentencing Act, and particularly, by reference to the terms of s 35(2), in respect of Mr Beath-Williams, I have ultimately accepted the argument put by his learned Senior Counsel, the plea of guilty to the particular charge before me now was entered at the first reasonable opportunity as a plea of significant utilitarian value, in the sense that it saved the victim the ordeal of having to give evidence, as with his mother, saved the time and the expense for the community of prosecuting the prisoner.
It is to be fairly said, in the context of the detail of the submissions made by Senior Counsel for the prisoner Mr Beath-Williams, that having regard to the charges that were initially preferred against Mr Beath-Williams, including a charge of attempted murder, the charges initially brought would not have been proven based upon the admissions of the prisoner. As I said, the admissions of the prisoner give rise to the particular charge which I am concerned with, which is not one of recklessly inflicting grievous bodily harm, but one of being knowingly concerned in the reckless infliction of grievous bodily harm, in the sense that he drove the principal offenders to the scene in the knowledge that they were in the possession of knives. Although, not believing that they were to use the knives in the manner in which they did.
The Crown put very helpful submissions in relation to the matter but the core of what was put to me by the learned Crown is that it was suggested it was open to the accused to plead to the charge to which he eventually pleaded as a natural ‘statutory alternative’ to what was principally charged. I believe that I should accept the argument of Mr White SC in relation to that matter that it was not necessarily a matter that was statutorily available to the prisoner to accept as an appropriate charge, given the specific charges that were initially brought against him.
It is a different situation, however, in respect of Mr Wilson. As I understand the matter, he pleaded guilty at the time of case conferencing as, I hasten to say, did Mr Beath-Williams, but in respect of charges for which he had been committed for trial. That having been said no trial date had been fixed, and I have accepted the argument put by learned counsel for Mr Wilson, Mr Sabharwal, as to the extent of discount. The Crown as I understand it does not see error in the argument put by Mr Sabharwal that, having regard to authority in this Territory in respect of these matters by reference to s 35, a discount of 20 per cent in all the circumstances represents a fair recognition of the utilitarian value of the plea of guilty.
There are a number of authorities I have been referred to in this regard by learned counsel for the Crown, in the context of the terms of s 35. There is reference to the decision of Millard v The Queen [2020] ACTCA 20, particularly at [26], and another case of R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103. Other cases I might note in passing include Cranfield v The Queen [2018] ACTCA 3, particularly the judgment of the court at [37]-[38]; Blundell v The Queen [2019] ACTCA 34, particularly at [12] – [14], part of which, to be fairly noted, was cited by the Crown; and the decision of R v Nicholas; R v Palmer [2019] ACTCA 36 particularly at [39] and [52]–[53].
With regard to the objective seriousness of the offending, there was considerable discussion about this, and little issue between the parties as I would identify it. The Crown conceded that the culpability of Mr Beath-Williams was less than Mr Wilson for several very important reasons. One was, of course, the fact that the prisoner Mr Beath-Williams pleaded guilty to a less serious offence than Mr Wilson in relation to the issue of the infliction of grievous bodily harm upon the victim.
The roles of the two men of course are very different, as I have outlined from the facts of the matter. There are common, what could be called, aggravating factors in the context of the overall consideration of the material relating to both men. Both offenders were subject to conditional liberty at the time of the offending. But, that having been said, they were not subject to parole or Intensive Correction Orders at the time of the offending, but subject to Good Behaviour Orders in respect of rather serious offences.
Secondly, the offence common to the two men, if I could call it that, although expressed differently in each case, involved a degree of pre-meditation, being the arming of himself by Mr Wilson, and Mr Beath-Williams being aware of that arming and driving to the scene knowing that there was to be a confrontation.
The third aspect of aggravation is of course the “vigilantism” to which the Crown referred. People are not entitled, no matter how grievously affected they believe other third parties may be, to take the law into their own hands. It usually ends badly, as we see in this and other courts, and it ended badly in this particular situation, particularly for the victim of this crime.
Another aggravating factor to take into account was the fact that Mr Wilson was in possession of a weapon of which the prisoner Mr Beath-Williams was aware. Having said that, that is very intimately bound up with the facts of the case which they are now concerned with, as well as the fact that the knives subsequently were used to cause injury, a matter for which the prisoner Mr Beath-Williams is not personally responsible.
Turning, if I may, to their criminal histories, as I have already pointed out, the prisoner Mr Beath-Williams is a much younger man than his uncle. By reference to the Pre-Sentence Report, I note he was born on 14 April 1997, which confirms what I said earlier, that he was 23 years of age at the time of the offending. He will turn 25 in April. The co-offender, Mr Wilson, again by reference to the Pre-Sentence Report, was born in January 1988 and thus turned 34 earlier this year. I have referred to the fact that they were subject to conditional liberty.
Turning to Mr Beath-Williams' criminal history briefly, although it is an extended criminal history, I note that he has a number of findings of guilt in the Childrens Court dating back to 2017. It seems to me that his offending is entirely consistent with a life of some disadvantage, which I will come to shortly. After a number of appearances in the Childrens Court, including in respect of crimes of violence, such as assault occasioning actual bodily harm and aggravated robbery in company, as an adult Mr Beath-Williams has been convicted of a number of offences of dishonesty, but also, as the Crown points out, offences of violence, including convictions in the Magistrates Court in 2017 for two counts of common assault and assault occasioning actual bodily harm, amongst other offending at the same time.
He appeared in the ACT Supreme Court in 2018 in respect of an offence of assault occasioning actual bodily harm for which he was placed on a suspended sentence, pursuant to s 12 of the Sentencing Act, for a period of 15 months commencing on 16 June 2018. He has also been convicted in the ACT Supreme Court in March 2019 for offences of burglary and theft.
There were subsequent findings of guilt in the ACT Magistrates Court in 2020 for assault and obstructing a public official. He was found guilty in the Magistrates Court for offences committed after the offence with which I am concerned. As I understand it, these were offences that were committed on 4 October 2020. To be fair to him, they are subsequent to the commission of the current offence and are not offences that were committed whilst on bail in relation to the current offence.
The Crown referred particularly to his offences of violence although, having accepted that the conduct that I am concerned which is an offence of violence, Mr Beath-Williams was not the perpetrator of the violence, as the pleadings make clear.
It should be pointed out in relation to this offender, as with Mr Wilson, as I said earlier, there was a breach of a Good Behaviour Order. The Crown has very fairly pointed to aspects of that matter but said that no action should be taken given the reality of the situation with which we now concern ourselves, and ultimately, I will make an order that there be no action in relation to that Good Behaviour Order.
The prisoner Mr Beath-Williams thus has a criminal history that does not entitle him to any particular leniency of itself, but a history that probably reflects his background circumstances as it does for Mr Wilson.
Mr Wilson has lived in the ACT, but also NSW. In fact, as I understand it, he moved from the ACT to NSW as a child and so I see, by reference to the criminal histories, that he has a substantial criminal history in NSW going back to when he was a juvenile in 2003.
He has findings of guilt in relation to offences of violence in NSW. He appeared at the Sydney District Court in November 2011 and was found guilty of an offence of aggravating breaking and entering and commit a serious indictable offence, to wit, inflicting actual bodily harm, for which he was sentenced to two years' imprisonment with a non-parole period of six months, and placed on a s 9, as it then was, Good Behaviour Bond for a period of three years. He was also sentenced to a term of imprisonment at the same time in respect of an offence common assault committed at the same time as the other offences.
He appeared at the Local Court at Batemans Bay in 2017 and was sentenced to a term of imprisonment for the offence of intimidation. That was a term of imprisonment of 12 months with a non-parole period of four months. There was a related offence of damaging property. That sentence was appealed unsuccessfully at the District Court at Bega.
He has findings of guilt in the ACT going back to 2008. The matters in 2008 are minor driving matters. He has a finding of guilt in 2011 for dangerous driving or reckless driving. He has findings of guilt in relation to the obstruction of officials, a finding of guilt in relation to an offence of common assault in the ACT Magistrates Court in 2012. He has another offence of the same type, it would appear separately committed but on the same date. He has findings of guilt for driving with a prescribed drug in his blood, and other driving offences.
His criminal history is over a longer period of time than his co-accused. Mr Beath-Williams has not been, prior to today, sentenced to full-time imprisonment but not so for Mr Wilson. Having said that, in relation to both men, it could be fairly said that the current offences represent a significant escalation upon their previous criminality and whilst their criminal histories do not entitle them to any particular leniency, I do not regard their criminal histories as of themselves being aggravating factors. They only inform, as far as I am concerned, the circumstances of them meeting up with the victim to purportedly sell drugs to him.
If I could turn, if I may, to what could be called the subjective cases. They involve consideration of material tendered by the Crown. I have a Pre-Sentence Report in relation to both offenders. It is important to note as a general observation that, in my view, both reports are quite positive. Both offenders in custody have endeavoured to make improvements, if that is the correct expression, in their lives.
In the case of Mr Wilson, if I just digress for a moment, I have a number of certificates of attainment whilst in custody of courses that he has undertaken, and other programs that he has been involved in to try and address self-improvement, and that is confirmed in the Pre-Sentence Report.
To perhaps come back to Mr Beath-Williams, and deal with individual matters, he is a person of Aboriginal background. His family, I would take it, the Williams aspect of his family, are Wiradjuri people from the Cootamundra district, although he was born and raised in Canberra.
I have a reference from his aunt who lives at Bombala, herself a woman that has had to deal with drug addiction, as she freely admits, but has moved to Bombala and started a new life and offers accommodation for the prisoner, in due course, to get away from what would appear to be an environment of drug and alcohol abuse in which the prisoner has been involved over a number of years.
He is the eldest of four siblings. I have a reference from his sister, a very impressive document, it must be said, and I accept what has been put on the prisoner's behalf that his sister is a person of attainment. She is 22 years of age. She is a student mid-wife and has a particular interest in mental health and clearly has professional experience in relation to those matters. She speaks of the disadvantage of the prisoner in his upbringing, the support that the family has tried to give him, and the circumstances of his upbringing involving physical and mental abuse, as the prisoner has identified in the letter that he wrote to me, and as is identified in the history he gave in the Pre-Sentence Report.
His sister is mindful of the need for professional assistance for him, and I accept that his rehabilitation would be greatly assisted by professional assistance. One of the matters I have struggled with is the way in which that could best be provided to him. I believe it can be provided to him as efficiently through the parole supervision system than through some form of conditional liberty, as was suggested by his counsel.
He has a number of mental health issues of which his sister is aware. Although I do not have a detailed psychological report, this is quite consistent with his upbringing, the disadvantages of abuse that he has suffered and the like. He has symptoms of Post-Traumatic Stress Disorder. In that regard, he has had, amongst the distressing events in his upbringing, cruelty imposed upon him by his stepfather and problems of recovering from a motor vehicle accident in May 2019.
I appreciate, of course, that he had a history of offending well before he was injured in that car accident, but he suffered a number of serious injuries and this has caused constant pain and symptoms of what are described by the Pre-Sentence Report as Post-Traumatic Stress Disorder, depression, anxiety and stress.
Furthermore, to add to his stress, is the fact that, ironically perhaps putting it as low as I can, he was the subject himself of a serious crime when he was kidnapped on 24 February 2020 by two men and a woman, and severely assaulted. He has not cooperated with the investigation of that matter, but he does not cooperate because of fears for the safety of his family. I note in relation to this particular matter, that one of his reasons for initially not cooperating with the authorities was fears for his family, and I note that as a relevant explanation for the delay in providing relevant information in relation to this matter.
The Pre-Sentence Report from the ACT Community Correction Service notes a history of Post-Traumatic Stress Disorder, anxiety, depression and ADHD, obviously available from records available to that service, although when seen by the Custodial Mental Health Service (CMHS) while inducted into custody back on 10 February, there was, in the view of the inductors, no evidence of a significant mental illness. He was assessed again in May 2021, following an at-risk referral in the context of 'venting his frustrations' and he was referred for specialist intervention with no further action required.
Custodial records indicate that he engaged with the specialist communities team for a therapeutic intervention assessment and had engaged well through early 2022. In that regard, and also confirmed in the documents presented by his learned senior counsel, I note that he has approached and been involved with a number of organisations that may be able to provide assistance outside of custody.
He was assessed by the Karralika Adult Therapeutic Community Program in November 2021 and is suitable to be admitted into that program, if need be. He completed an assessment with the Ngunnawal Bush Healing Farm and is eligible for intake in that program, and he was motivated to undertake that, which would be a culturally sensitive program for him. He has also been assessed, as noted in the Pre-Sentence Report and in the documents I have been provided, by the Salvation Army's Canberra Recovery Hub which is a drug and alcohol rehabilitation program to address his alcohol and other drug issues.
It would appear on the facts available in this case that his history of drug and alcohol abuse is directly a relevant matter to the fact of the offending, but it is clear from his own letters to me, and from the information in the Pre-Sentence Report, his involvement with drugs has led to his association with people ultimately leading to the circumstances of this particular offending.
He has been using amphetamines and MDMA for a number of years and commenced using alcohol at a relatively young age. He must certainly address those matters in order to provide a framework for his rehabilitation, but he is a relatively young person and whilst I cannot say with certainty, because I do not have a crystal ball, that his prospects of rehabilitation are good, the efforts he has made whilst in custody to address a number of issues, and to seek assistance when he is released from custody, reflect a positive attitude on his part. He is young enough to progress in his rehabilitation if he is prepared to take the right course.
My experience of life dealing with people over many years is that people eventually will determine that they are not going to offend if they are prepared to address the underlying issues that lead to the offending. Being able to recognise those issues, having insight, is a starting point of some significance. I believe the prisoner is at least at that starting point. His sister confirms these observations of mine and whilst she accepts the seriousness of his situation, she believes a rehabilitation facility would be a better option for him.
Unfortunately, as sentencing options arise in this jurisdiction, as with most other jurisdictions, my powers to provide some assistance in that regard are limited, but the order that I have contemplated would permit, within a very short period of time of today's proceedings, the opportunity for the prisoner to return to the community to undertake programs that are available without necessarily having the restrictions placed upon him that, for example, an Intensive Correction Order may give.
With regard to Mr Wilson, he is, as I pointed out, a much older offender, a mature man with a background of serving terms of imprisonment, albeit a record not too dissimilar from that of the co-offender. His Pre-Sentence Report is a positive report in my view. As I have said earlier in passing, he has taken steps in custody and, like his co-offender he was regarded as co-operative and positive in his dealings with the Pre-Sentence Report.
I have pointed out that he was born in the ACT but grew up on the South Coast and was educated largely, as I understand it, in NSW. He had a good relationship with his family but, like his co-offender, a background of alcohol abuse at a young age and use of prohibited drugs, including amphetamines. Although he did cease with amphetamines initially in his late 20s, he had been using methylamphetamine up until his recent incarceration. When he is working full-time, however, he can keep control of his methylamphetamine use and he does have some history of employment which is absent in his co-accused's circumstances.
He had a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) in his school years and that may, to some extent, inform some of his offending in the past. He accepted responsibility for his actions. He described the offences as 'horrible' and expressed remorse for his actions and I accept in his case, and the case of the co-accused as I have mentioned, that both men are remorseful.
It should be pointed out, of course, because of his vigilantism, and Mr Wilson being armed, it seems to me that the reckless infliction of grievous bodily harm, as the Crown has pointed out, is the more serious of the two offences that I am concerned with.
The actual robbery of the victim, on my understanding of the facts, was not pre-meditated. I could not conclude that aggravation existed in relation to that offence. It seemed to be a matter that arose from the circumstances in which the first assault occurred upon the victim and it is the case that the initial reason for meeting up with the victim was for the purposes of seeking some vengeance, if that be the correct word, for his purported misdeeds. Although, there is no evidence that he, in fact, ever did anything wrong, just that the prisoners and Mr Taylor believed that he had done something wrong.
He is assessed as being of medium-high risk of general re-offending and I think that is a fair assessment given his criminal history and the circumstances of these matters. He needs to address illicit substance use, find employment and engage himself in more pro-social activities. He accepted responsibility for not only his actions but the character of his associations which led to the commission of the offences which is to his credit.
With regard to the submissions of the parties, the Crown Prosecutor provided helpful written submissions. Some of the matters that have arisen in the written submissions and the oral submissions of the Crown, I have addressed in passing or directly. I should point out, although it was not specifically raised with me, I am very mindful of the operation of the Sentencing Act. Particularly the terms of s 7, setting out the various purposes of sentencing that arise, not all the time, and not in relation to all matters that are identified in the Act. But I am required to adequately punish each of the offenders to prevent them and others, by deterrence, from committing further offences, protect the community from the offender to the extent that protection of the community is an issue in this matter. I do not believe the two men are a danger to the community, per se. I am required to promote their rehabilitation, so make them accountable for their actions, recognise the harm they have caused to the victim, and denounce their conduct.
By reference to the Crown's written submissions, there are a number of issues arising under s 33 of the Sentencing Act that I am required to take into account, and I have. They include the nature and circumstances of the offending. In the case of Mr Wilson, the fact that each of the offences forms part of a course of conduct but, both matters, obviously, overlap. In that regard, of course, as I raised in the course of submissions, in sentencing him I am required to impose two sentences and thus have regard to the “totality” of criminality. The extent of accumulation is relatively modest, a matter of nine months. There are many, many common factors in both offences. They are very closely related in time. As I have said, the robbery matter, as the Crown conceded, notwithstanding the greater maximum penalty, was the less serious of the two offences, being an offence that, it would seem, arose incidentally out of the primary purpose of the confrontation with the victim.
I have regard to the personal circumstances of the victim and the injury to him and, no doubt, the fear suffered by his mother. I have had regard to the degree of responsibility of each offender for the commission of the respective offences to which they have pleaded guilty, their pleas of guilty, the assistance of the offenders to the administration of justice to the extent that they have co-operated with the prosecution in the completion of the matter, the assistance by Mr Beath-Williams to law enforcement authorities pursuant to s 36. I have had regard to the cultural background, character, antecedents, age, physical and mental condition of each of the offenders.
There is no clear medical evidence of a causal connection between any of the conditions I have identified in the offending. Not that that is necessarily significant. But nobody has put to me that I should, per se, determine that less weight should be given to the issue of general deterrence by reason of matters concerning the mental state of either offender. No authorities were cited nor any particular evidence drawn to my attention. There is, however, arising out of the circumstances of Mr Beath-Williams particularly, a need to have regard to the decision of Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) in my view.
The High Court, in that decision, at paragraphs [42]-[44], spoke, in the context of dealing with a First Nations offender, Mr Bugmy, about the circumstances of deprivation and disadvantage and the impact that may have upon a person. Their observations can have application to people that are not of Aboriginal background as well. But, dealing principally with Mr Beath-Williams and many of the circumstances adverted to by his sister, and by the prisoner in his documents written for my benefit, I take into account that the experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.
Among other things, a background of that kind can compromise the person's capacity to mature and learn from experience. It is a feature of the person's makeup and remains relevant to the determination of the appropriate sentence notwithstanding the person may have a long history of offending (see [43]). Most pertinently, the High Court said at 44:
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to the offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
It is not without some significance, in my view, as often happens with vigilante cases, that vigilantism is usually conduct to be seen in people who do not have the best of opportunities in life. You do not see usually middle class people, from Turramurra or Red Hill in Canberra, resorting to vigilantism to sort out their private disputes. But you do see it often amongst communities where the opportunities of education and the like are not so readily available.
I also note by reference to what I have just said, as the High Court noted in Bugmy, that in Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465, the Court made the observation that the purposes of sentencing were like “guide posts”. Sometimes they point in opposing directions. And that is always the difficulty in sentencing any offender in relation to offences where the various purposes of sentencing then 4, now 7 or 8, in s 7 of the Act, arise for consideration as they do here.
The Crown, as I have pointed out, has dealt with the issues of pleas of guilty – matters to be taken into account – remorse and the like, and I believe I have dealt with those matters. I do not need to discuss those matters any further in the context of what I have decided should be the outcome of these matters. In that regard, of course, firstly in the case of Mr Wilson, I have had regard to the various purported ‘comparative’ cases that I am obliged to have regard to having regard to current sentencing practice and patterns under s 33(1)(za). I will not cite the various judgments but the Crown very kindly provided them to me. I have read through those judgments and I have had regard to the assistance they provide for comparative purposes, noting of course many distinctions both in the subjective and objective circumstances for those cases, compared to the situation of Mr Wilson. I have taken into account all that was written in Mr Wilson’s written submissions.
In the case of Mr Wilson and Mr Beath-Williams, of course, parity is a relevant matter to take into account. There can be no doubt by reference just to the issue of number of charges and maximum penalties involved that parity will demand that a greater sentence be imposed upon Mr Wilson than imposed upon Mr Beath-Williams, even if it be thought, not that I am suggesting it is, that their subjective circumstances were comparable.
For starters, I had pointed out in relation to Mr Wilson, there is an issue of totality of criminality and in that regard I note, without citing his learned words, Chief Justice Street’s observations in the very famous case of R v Holder [1983] 3 NSWLR 245 which set out principles in respect of consideration of totality of sentencing for practical purposes adopted by the High Court in Mill v The Queen [1988] HCA 70; 166 CLR 59.
With regard to Mr Beath-Williams the Crown provided a schedule of cases, again for comparative purposes. Again there are matters that are of some distinction between Mr Beath-Williams and the comparative cases. One such matter is the very character of the charge to which he has pleaded. He hasn’t pleaded to recklessly inflicting grievous bodily harm but as I have said to being knowingly concerned with that offence in the manner identified in the indictment. He has to be sentenced in terms of moral culpability and objective culpability, in that context, and as I regarded the facts as I have identified them. But those comparative cases do provide some assistance in setting out some markers, perhaps as to how the parameters of the appropriate sentence to be imposed.
The Crown’s written submissions in respect of Mr Beath-Williams, particular to him, not dealing with him in the same way as the Crown dealt with Mr Wilson, identified a number of matters which I believe I have dealt with in the course of my remarks on sentence.
The learned submissions of counsel for both prisoners have been taken into account. In the case of senior counsel representing Mr Beath-Williams, I have already dealt with a number of the matters that he identified. I suppose the final matter I should perhaps address directly is the submission he made to me that I should consider an intensive correction order, that is a term of imprisonment to be served by intensive correction order. I have thought about that long and hard but I bear in mind, of course, the prisoner has now been in custody for almost a year. I bear in mind the prisoner’s own comments about the character of intensive correction orders previously imposed.
It seems to me that the flexibility the prisoner may need to undertake programs outside of custody will be better afforded to him by parole supervision than by conditions of an intensive correction order that he, the prisoner himself observed as I said earlier, could be regarded as “setting himself up” for failure. But I believe that the order that I have foreshadowed will give practical effect to the essence of what learned Senior Counsel for the prisoner was submitting to me in his submissions. Mr Sabharwal accepts that a term of full-time imprisonment must be imposed.
The Crown is correct in both instances that is in the case that only a sentence of imprisonment can be imposed for both offenders and in that regard I have noted the terms of s 10 of the Sentencing Act. The practicality in relation to Mr Beath-Williams, given his lower moral and criminal culpability is the way in which that can best be addressed but will provide some encouragement for his rehabilitation. It seems to me, ultimately, that the conclusion that I have reached from my perspective is the best way to reflect both upon the matters the Crown seeks me to properly take into account, particularly issues of general and personal deterrence but also of the other matters that always will be relevant in considering the purposes of sentence, such as the promotion of the rehabilitation of the offender.
Likewise, in relation to Mr Wilson. But, of course, his situation is different for the reasons I have identified. I have sought by fixing the non-parole period I have to give the prisoner some encouragement to continue his rehabilitation in custody. He will have an extensive period of parole supervision.
He is certainly now subject to the longer sentence ever imposed upon him, although he did receive a very substantial sentence in the District Court back in 2011 as I have noted. The fixing of the non-parole period was designed to encourage him when looking at the future to take advantage of the opportunities that will be available to him on release to custody, particularly to undertake those matters that the presentence report refers to. That is, the encouragement of him to undertake drug and alcohol rehabilitation programs. The need for him to find employment which he, himself, acknowledges does mitigate his amphetamine use and also to find himself more pro-social activities to undertake in the community, rather than just consuming drugs.
Thus all matters hopefully taken into account by me, I turn now to the making of the relevant orders. Now, before I make those orders if I could just deal with Mr Beath-Williams first, Mr White?
MR WHITE SC: Yes, your Honour.
HIS HONOUR: I do not propose to fix any conditions. I have seen a judgment in the last day or two where one of the judges fixed standard conditions in accordance with the Administration of Sentences Act. But I understand from other judges it is not necessarily a practise of this court, I will get your assistance by the way, Madam Crown – I’m not ignoring you in this process. Do you think, Madam Crown, Mr White, I have a need to refer to the Sentence Administration Act or is sufficient for me merely to identify a non-parole period?
MR WHITE SC: We don’t see a necessity to refer to the Act, your Honour.
HIS HONOUR: It is done from time to time, though but not necessarily it has to be done. Is that correct?
MR WHITE SC: Yes. That is my understanding.
HIS HONOUR: Is that correct, Madam Crown, as far as you are aware?
MS JEROME: Yes, your Honour.
HIS HONOUR: Right. Thank you. Well, I will sentence Mr Beath-Williams first, if I may? You do not need to stand up Mr Beath-Williams.
In relation to the offence to which you have pleaded guilty, I record a conviction for the offence. In respect of the offence of knowingly concerned with reckless infliction of grievous bodily harm - and I have set out in the order the number of that matter by reference to the court records - you are sentenced to two years three months imprisonment, reduced from three years imprisonment. Commencing on 10 February 2021 and ending on 9 May 2023. The non-parole period commences on 10 February 2021 and expires on 9 February 2022. In respect of the breach of the good behaviour order - and I have supplied the number of that in the formal order - I find the breach proved, but I take no action. Do you understand the effect of that sentence?
THE PRISONER BEATH-WILLIAMS: (No audible reply).
HIS HONOUR: You are eligible for release to parole on 9 February, which I take to be next week some time.
Mr Wilson, you do not need to stand, but I will explain the orders to you. I record a conviction in respect of each offence. In respect of the offence of aggravated robbery, you are sentenced to three years imprisonment, reduced from three years, nine months imprisonment. Commencing on 4 February 2021 and ending on 3 February 2024. In respect of the offence of intentionally inflicting grievous bodily harm, you are sentenced to four years imprisonment and reduced from five years imprisonment. To commence on 4 November 2021, expiring on 3 November 2025.
The non-parole period for the total sentence commences on 4 February 2021 and ends on 3 June 2023. That means a non-parole in effect of two years, four months. Do you understand that?
THE PRISONER WILSON: (No audible reply).
HIS HONOUR: The breach of the good behaviour order, which I cite in the orders, is found, but I direct no action on that. You will be eligible for release to parole on 3 June 2023. Do you understand that?
THE PRISONER WILSON: (No audible reply).
HIS HONOUR: Thank you.
Orders
I make the following orders in respect of Ashleigh Wayne Wilson:
(a) I record a conviction in respect of each offence.
(b) In respect of the offence of aggravated robbery (CC2021/1634), the offender is sentenced to 3 years imprisonment, reduced from 3 years 9 months imprisonment, commencing on 4 February 2021 and ending on 3 February 2024.
(c) In respect of the offence of intentionally inflict grievous bodily harm (SCCAN2021/110) the offender is sentenced to 4 years imprisonment, reduced from 5 years imprisonment, to commence on 4 November 2021 expiring on 3 November 2025.
(d) The non-parole period for the total sentence commences on 4 February 2021 and ends on 3 June 2023.
(e) In respect of the breach of the Good Behaviour Order (CC2018/12202), the breach is found but I direct no action.
I make the following orders in respect of Andrew James Francis Beath-Williams:
(a) I record a conviction for the offence.
(b) In respect of the offence of “knowingly concerned with reckless infliction of grievous bodily harm” (SCCAN2021/150), the offender is sentenced to 2 years 3 months imprisonment, reduced from 3 years imprisonment, commencing on 10 February 2021and ending on 9 May 2023.
(c) The non-parole period commences on 10 February 2021 and expires on 9 February 2022.
(d) In respect of the breach of the Good Behaviour Order for (CAN2020/31550), I find the breach proved but take no action.
| I certify that the preceding one hundred and nine [109] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Norrish Associate: Date: 3 March 2022 |
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Amendments
3 March 2022 Replace “where I had the honour of being junior to Peter Hidden of Queen’s Counsel, as he then was,” with “the Court” Paragraph: [79]
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