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Williams v R

Williams v R

Case [2012] NSWCCA 172 16 August 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Williams v R [2012] NSWCCA 172
Hearing dates: 26 June 2012
Decision date: 16 August 2012
Before: Allsop P
Price J
S.G Campbell J
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal - sentencing - murder - sentence prior to Muldrock v The Queen - whether error in regard to standard non-parole period - whether sentencing judge engaged in a two-stage approach - whether provocation may be taken into account in assessing objective seriousness - whether sentencing judge erred in giving weight to prior illicit drug use in assessing good character - whether sentence was manifestly excessive.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
s 21A(3)(e), s 21A(3)(f), s 21A(3)(g),
s 21A(3)(h), s 54B(2),
Criminal Appeal Act 1912 s 6(3)
Cases Cited: Aoun v R [2007] NSWCCA 292
Bolt v R [2012] NSWCCA 50
Butler v R [2012] NSWCCA 23
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Majid v R [2010] NSWCCA 121
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Baker [2000] NSWCCA 85
R v Koloamatangi [2011] NSWCCA 288
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Weininger v The Queen [2003] HCA 14 (2003) 212 CLR 629
Yang v R [2012] NSWCCA 49
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: .
Representation: Mr Dhanji SC (applicant)
Ms J Girdham (respondent)
P A O'Farrell Legal Aid NSW (applicant)
S Kavanagh Solicitor for public prosecutions (respondent)

File Number(s): 2009/213264
Decision under appeal

File Number(s):

2009/213264

Judgment

ALLSOP P: I have had the great advantage of reading in draft the reasons of Price J. I have no hesitation in agreeing with his Honour in relation to grounds 2, 3 and 4. My concern lies with ground 1.

The decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 made clear that the decision in R v Way [2004] NSWCCA 131; 60 NSWLR 168 was wrongly decided. That does not mean that all sentences passed before Muldrock relying on Way are necessarily vitiated by operative error. No such mechanical submission was made by Mr Dhanji SC, who appeared for the applicant. Nevertheless, a judge who has so scrupulously and carefully followed the precedents binding on her (as this judge did, if I may respectfully say so) can be taken to approach the matter accordingly.

Here at [74] of her reasons, the sentencing judge referred to "the principles discussed in" not only Way but a number of decisions of this Court, including R v McEvoy [2010] NSWCCA 110. In that decision, Simpson J (with whom Grove J and R A Hulme J…

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: WILLIAMS v R [2012] NSWCCA 172
Case: [2012] NSWCCA 172
Decision Date: 16 August 2012

CaseChat Overview and Summary

The appellant, Williams, was convicted of murder and was sentenced to imprisonment with a non-parole period of fifteen years. The case was appealed on the basis of the sentence imposed. The court was tasked with determining whether the sentencing judge erred in applying the standard non-parole period for murder, and whether the judge appropriately considered the factors relevant to the assessment of the objective seriousness of the offence and the offender's culpability. The appeal also questioned whether the judge correctly evaluated the relevance of provocation and the appellant's prior drug use in assessing his good character.

The court examined the approach taken by the sentencing judge, focusing on whether the judge engaged in a two-stage process as required by the Muldrock v The Queen decision. The court found that the sentencing judge did not err in considering the provocation as a mitigating factor in assessing the objective seriousness of the offence. The court also concluded that the judge did not err in giving weight to the appellant's prior drug use when evaluating his good character. The court held that the sentence was not manifestly excessive, as the judge had considered all relevant factors and the sentence was within the range of penalties appropriate for the crime committed.

The appeal was dismissed, and the original sentence was upheld. The court affirmed that the sentencing judge had correctly applied the principles of sentencing for murder and had not erred in considering the factors relevant to the assessment of the objective seriousness of the offence and the offender's culpability. The court emphasised the importance of a comprehensive and balanced approach to sentencing, taking into account all relevant mitigating and aggravating factors. The appellant's sentence of imprisonment with a non-parole period of fifteen years was deemed to be appropriate and not manifestly excessive.

Orders