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The Queen v Williams

The Queen v Williams

Case [2014] ACTCA 30 18 August 2014

Statutory Interpretation

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	The Queen v Williams
Citation:	[2014] ACTCA 30
Hearing Date:	11 August 2014
DecisionDate:	18 August 2014
Before:	Refshauge, Penfold and Gilmour JJ
Decision:	1. The appeal be allowed and the sentences be set aside. 2. The respondent be re-sentenced to a total sentence of nine years and six months imprisonment, backdated to 7 September 2013 and made up of: (a) three years’ imprisonment for assault occasioning actual bodily harm; and (b) eight years’ imprisonment for sexual intercourse with a child under ten years, to start eighteen months after the assault sentence. 3. A non-parole period of seven years and six months be set, backdated to 7 September 2013 and expiring on 6 March 2021.
Category:	Principal Judgment
Catchwords:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – interference with sentence imposed by court below requires identification of specific sentencing error or error inferred from manifest inadequacy or excess of sentence – weight given to particular sentencing considerations is not a specific sentencing error, or a particular of manifest inadequacy or excess – particulars of manifest inadequacy or excess may include specified sentencing considerations, whether or not said to have been inappropriately weighted by sentencing judge – giving plea of guilty discount said to be excessive is not a specific sentencing error – circumstances of plea of guilty may be relevant in determining manifest inadequacy or excess – scope and use of “comparable sentences” APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – sentence for assault occasioning actual bodily harm and sexual intercourse with child under ten years – offender with poor criminal record including multiple sexual offences against children – pattern of re-offending shortly after release – importance of community protection – total sentence of seven years and six months manifestly inadequate – offender re-sentenced
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 36
Cases Cited:	Barbaro v The Queen (2014) 305 ALR 323 Bugmy v The Queen (2013) 302 ALR 192; Carroll v The Queen (2009) 254 ALR 379 Dinsdale v The Queen (2000) 202 CLR 321 Hili v The Queen (2010) 242 CLR 520 House v The King (1936) 55 CLR 499 R v Ang [2014] ACTCA 1 R v Ellis (1986) 6 NSWLR 603 R v GE [2014] ACTSC 181 R v Thomson & Houlton [2000] 49 NSWLR 383 R v TW (2011) 6 ACTLR 18 Ryanv The Queen (2001) 206 CLR 267
Parties:	The Queen ( Crown) Shane Williams ( Respondent)
Representation:	Counsel Mr J White SC ( Crown) Mr J Sabharwal ( Respondent)
Solicitors ACT Director of Public Prosecutions ( Crown) Aboriginal Legal Service (ACT/NSW) ( Respondent)
File Number:	ACTCA 4 of 2014
Publication Restriction:	Child victim’s name and identifying information
Decision under appeal:	Court: ACT Supreme Court Before: Chief Justice Murrell Date of Decision: 29 January 2014 Case Title: R…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: The Queen v Williams [2014] ACTCA 30
Case: [2014] ACTCA 30
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an appeal by the Crown against the sentence imposed on the respondent, Shane Williams. The dispute concerned the adequacy of a total sentence of seven years and six months imprisonment, with a non-parole period of four years and six months, for the offences of assault occasioning actual bodily harm and sexual intercourse with a child under ten years. The respondent had received a 25% discount on each offence for his guilty plea, and the sentences were partially accumulated.

The legal issues before the Court were whether the sentence imposed by the sentencing judge was manifestly inadequate, and whether the weight given to the respondent's guilty plea constituted a specific sentencing error or contributed to a manifest inadequacy. The Crown argued that the sentence was unreasonable and plainly unjust, requiring interference with the sentencing judge's discretion. The Court was required to determine if the sentencing judge had erred in principle or failed to consider material considerations, or if the sentence was so low as to infer a failure to properly exercise discretion.

The Court allowed the appeal, finding the total sentence of seven years and six months to be manifestly inadequate, particularly given the respondent's extensive criminal history of similar sexual offences against children and a pattern of re-offending. The Court reasoned that while a guilty plea is a mitigating factor, the discount applied in this instance, combined with the overall leniency of the sentence, failed to adequately reflect the seriousness of the offences, the need for community protection, and the principles of punishment and deterrence. The Court applied the principles established in *House v The King* and subsequent cases concerning appeals against sentence based on manifest inadequacy, noting that such inadequacy can be inferred from the result even without identifying a specific error in the sentencing judge's reasoning.

The Court ordered that the appeal be allowed, the original sentences be set aside, and the respondent be re-sentenced to a total of nine years and six months imprisonment. This new sentence comprised three years for the assault occasioning actual bodily harm and eight years for the sexual intercourse with a child under ten years, with the latter to commence eighteen months after the assault sentence. A non-parole period of seven years and six months was also imposed.

Orders