Williams v R - [2017] VSCA 130

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0195

DWAYNE WILLIAMS	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	REDLICH and McLEISH JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 May 2017
DATE OF JUDGMENT:	5 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 130
JUDGMENT APPEALED FROM:	DPP v Williams (Unreported, County Court of Victoria, Judge Lawson, 9 February 2016)

---

CRIMINAL LAW – Appeal – Sentence – Guilty plea – Seven offences committed in two incidents – Overall total effective sentence of 6 years’ imprisonment, 4 years non-parole period – Whether judge erred in failing to apply Verdins principles 1, 3, 4 and 5 – Appellant suffered chronic paranoid schizophrenia – Appellant under influence of methamphetamine at time of second offending – Whether sufficient evidence that paranoid schizophrenia contributed to second offending – Appeal allowed – Re‑sentenced to overall total effective sentence of 5 years’ imprisonment, 3 years 4 months non-parole period – R v Verdins (2007) 16 VR 269; DPP v O’Neill (2015) 47 VR 395, applied.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J F Desmond	Valos Black & Associates
For the Respondent	Ms S Flynn	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
McLEISH JA
CROUCHER AJA:

The appellant pleaded guilty to several charges on two indictments concerning offending that took place in November 2014 and April 2015. On 9 February 2016, he was sentenced to imprisonment as follows:

Indictment F10699591

Charge Offence Maximum Sentence Cumulation

1 Causing injury recklessly [s 18 Crimes Act 1958] 5 years 17 months Base

2 False imprisonment [common law] 10 years [s 320 Crimes Act 1958] 12 months 3 months

3 False imprisonment 10 years 12 months 3 months

Summary Charge 9 Common assault [s 23 Summary Offences Act 1966] 3 months 2 months 1 month

Total Effective Sentence

(F10699591)
24 months’ imprisonment (12 months cumulative upon the sentence on Indictment F11431748)

Indictment F11431748

Charge Offence Maximum Sentence Cumulation

1 False imprisonment 10 years 1 year 6 months

2 Causing injury intentionally [s 18 Crimes Act 1958] 10 years 4 years Base

Summary Charge 9 Aggravated assault [s 24(2) Summary Offences Act 1966] 2 years 1 year 6 months

Total Effective Sentence
(F11431748) 5 years’ imprisonment

Overall Total Effective Sentence 6 years’ imprisonment

Overall Non-Parole Period 4 years

Pre-Sentence Detention Declared 290 days

6AAA Statement 7 years 6 months’ imprisonment, non-parole period of 5 years

On 23 January 2017, Kyrou JA granted the appellant leave to appeal against both sentences on the grounds set out later in these reasons.

Factual background

The first indictment

On 7 November 2014, the appellant, his former partner, Kelly Etrich, and their daughter were at the appellant’s sister’s house. The appellant and Ms Etrich were drinking heavily.

After midnight, the three of them, together with a friend, left the premises on foot. Ms Etrich told the daughter and the friend to walk ahead while she and the appellant stopped to talk. The…

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.

Continue reading Williams v R

Details

AGLC: Dwayne Williams v The Queen [2017] VSCA 130
Case: [2017] VSCA 130
Decision Date: 5 June 2017

CaseChat Overview and Summary

In the matter of Williams versus The Queen, the appellant, Williams, appealed against his sentence for seven offences committed in two separate incidents. The trial judge had sentenced Williams to a total effective sentence of six years’ imprisonment, with a non-parole period of four years. The appeal was heard in the Victorian Court of Appeal. The primary issue before the court was whether the trial judge erred in failing to apply certain principles from the case of Verdins versus The Queen. Specifically, Williams contended that the trial judge did not sufficiently consider the impact of his chronic paranoid schizophrenia and the influence of methamphetamine at the time of the second offending.

The court needed to determine whether the trial judge had adequately applied the principles set out in Verdins regarding the consideration of mitigating factors in sentencing, particularly in relation to mental health and the influence of drugs. Furthermore, the court had to consider whether there was sufficient evidence to conclude that Williams’ paranoid schizophrenia contributed to the second offending. The appeal hinged on whether the trial judge's failure to adequately consider these factors constituted a significant error in sentencing, warranting a reduction in the overall sentence.

The Court of Appeal found that the trial judge had indeed failed to adequately apply the Verdins principles. The judge did not sufficiently consider the appellant’s chronic paranoid schizophrenia and the influence of methamphetamine at the time of the second offending. The court held that these factors warranted a lesser sentence than that imposed by the trial judge. Consequently, the appeal was allowed, and the appellant was re-sentenced to a total effective sentence of five years’ imprisonment, with a non-parole period of three years and four months. The principles from Verdins and the case of Director of Public Prosecutions versus O’Neill were applied to arrive at the new sentence.

The final orders of the court included the reduction of the appellant's sentence and the modification of the non-parole period. This decision underscores the importance of comprehensive consideration of mitigating factors, such as mental health and drug influence, in criminal sentencing.

Orders