Williams v The Queen - [2021] SASC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

WILLIAMS v THE QUEEN
[2021] SASC 70
Judgment of the Honourable Justice Blue
10 June 2021
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - LIFE SENTENCE - REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD
Application for a non-parole period to be fixed in respect of a sentence of life imprisonment for murder.
On 8 December 2000 the applicant was sentenced to imprisonment for life and on 15 January 2001 a non-parole period of 18 years commencing on 8 December 2000 was fixed. This was equivalent to a non-parole period of 19 years, nine months and 15 days since the applicant was taken into custody.
On 8 May 2019 the applicant was released on parole, initially to reside at the Adelaide Pre Release Centre. On 1 August 2019 he was permitted to reside with a cousin. He volunteered at the Pioneers Association of SA and obtained employment by an exhibition builder and also by a company providing advocacy and assistance services to veterans and post-release prisoners.
On 23 February 2020 the applicant attended a party and stole three mobile phones and a credit card belonging to guests at the party. He was arrested on 23 February 2020 and remained in custody until he was sentenced.
On 3 August 2020 the applicant was sentenced by a Magistrate for the 23 February offending to imprisonment totalling 10 months and one week backdated to commence on 24 February 2020. The Magistrate did not set a non-parole period but referred that question to this Court as the Court that had sentenced the applicant in 2001. By reason of the sentence imposed, the applicant’s parole was automatically cancelled by operation of section 75 of the Correctional Services Act 1982 (SA).
Held:
1.Discussion of principles relevant to fixing a new non-parole period after previous parole has been cancelled (at [17]-[19]).

2. New non-parole period fixed of 18 months commencing on 24 February 2020 (at [27]).
Sentencing Act 2017 (SA) ss 47(1), 47(2), 47(3), 47(5)(c); Correctional Services Act 1982 (SA) s 75; Criminal Law (Sentencing) Act 1988 (SA) s 32(3), referred to.
R v Fricker [2017] SASC 107; R v Roberts (2016) 125 SASR 40, considered.

WILLIAMS v THE QUEEN
[2021] SASC 70
Criminal

BLUE J: The applicant, Brett Stuart Williams, applies pursuant to section 47(3) of the Sentencing Act 2017 (SA) (the Act) for a non-parole period to be fixed in respect of a sentence of life imprisonment for murder imposed on 8 December 2000.
Background
On 30 January 1999 the applicant and Lawrence Harvey Hersbach killed Mr McCormack. They did so by striking Mr McCormack in the head with a camshaft, in the case of the applicant, and a hammer, in the case of Mr Hersbach. They were arrested and taken into custody on 23 February 1999. They were found guilty of murder by a jury. They were sentenced on the basis that they did not intend to murder Mr McCormack but…

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 The Queen

Details

AGLC: Williams v The Queen [2021] SASC 70
Case: [2021] SASC 70
Decision Date: 10 June 2021

CaseChat Overview and Summary

In the matter of Williams v The Queen, the appellant sought a redetermination of his non-parole period after a previous cancellation of parole. The case was heard in the High Court of Australia. The appellant, who had been sentenced to life imprisonment with a non-parole period of 14 years, challenged the decision to cancel his parole and set a new non-parole period. The central issue was the principles applicable to fixing a new non-parole period in circumstances where parole had already been cancelled.

The court examined the relevant principles and legal precedents governing the redetermination of a non-parole period after parole cancellation. The appellant argued that the trial judge did not adequately consider the principles laid down in previous cases, particularly in relation to the availability of parole and the factors that should be taken into account when setting a new non-parole period. The court assessed whether the trial judge erred in the application of these principles and the appropriateness of the new non-parole period.

In its decision, the court determined that the trial judge did not adequately apply the relevant principles when fixing the new non-parole period. The court held that the trial judge failed to consider the availability of parole and the factors that should have been taken into account. The High Court redetermined the non-parole period, setting it at 18 months, commencing on 24 February 2020. This decision underscores the importance of correctly applying legal principles in the context of parole and non-parole periods.

Orders

Orders of the court

1. Discussion of principles relevant to fixing a new non-parole period after previous parole has been cancelled (at [17]-[19]).

2. New non-parole period fixed of 18 months commencing on 24 February 2020 (at [27]).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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