Williams v The Queen
[2013] VSCA 262
•18 September 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| DANIEL ALBERT WILLIAMS | S APCR 2013 0069 |
| v | |
| THE QUEEN |
JUDGES: | BUCHANAN AP and PRIEST JA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 18 September 2013 |
DATE OF JUDGMENT: | 18 September 2013 |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 262 |
JUDGMENT APPEALED FROM: | Unreported, County Court of Victoria at Melbourne, Judge Montgomery, Date of Sentence 11 April 2013 |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Sentence – Aggravated burglary and theft – Timing of plea of guilty – Intellectual disability – Parity – Difference in sentence of co-offenders justified – Sentence of 5 years’ imprisonment with a minimum term of 3 years and 6 months’ imprisonment not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | Robert Davis (Moe) |
| For the Crown | Mr B F Kissane | Mr C Hyland Solicitor for Public Prosecutions |
BUCHANAN AP:
The applicant was arraigned in the County Court and pleaded guilty to an indictment containing one charge of burglary (charge 1), two charges of theft (charges 2 and 5), two charges of being a prohibited person in possession of a registered firearm (charges 3 and 6), one charge of aggravated burglary (charges 4), eight charges of possession of a drug of dependence, (charges 7‑14) and two charges of possession of a prohibited weapon (charges 9 and 12).
After a plea, the applicant was sentenced to be imprisoned for an aggregate term of five years on charges one to six and fines were imposed in respect of the remaining charges. The sentencing judge fixed a minimum term of three and a half years’ imprisonment.
The offences arose from two events. The first event occurred on 15 April 2012. The applicant went to premises in Noojee in Gippsland. He gained access to the premises by cutting a padlock on the entrance gate and forced entry to a number of buildings and shipping containers. He stole property valued at approximately $20,000, including eight firearms and ammunition.
The second event occurred on 17 May 2012. The applicant and co‑offenders, William Tilgner and Paul Roderick, discussed the possibility of doing a run through burglary at premises in Mirboo North in Gippsland.
Later that evening, the three men enlisted the help of Jack Stone and Ashley McLachlan. Each of the five men were given specific roles to carry out.
The offenders drove to the premises and Tilgner, Roderick and Stone walked up the driveway wearing balaclavas and gloves and carrying a cricket bat and cable ties. The applicant and McLachlan remained in the car.
The victim’s dog began barking and the victim went outside to investigate. He was confronted by the three men, threatened and forced back inside the house. The offenders made the victim lie down and restrained his wrists with cable ties. Roderick stood over the victim while Tilgner and Stone ransacked the property.
The applicant and McLachlan then entered the house. The applicant assisted in locating items to steal. The value of the items stolen amounted to approximately $5,500 including a firearm, ammunition, drugs and cash.
In the early hours of 18 May 2012, the applicant, Roderick, Tilgner and Stone became aware that the police had been notified. They lit an incinerator and burned the balaclavas and cricket bat and some of the stolen property. The applicant and Tilgner then drove away in the car used in the offence and set fire to it.
In the following days the police executed a search warrant at the applicant’s premises and located a number of items, including weapons, drugs and stolen property belonging to the first victim.
The applicant is 29 years’ old. He repeated the first year of primary school and left secondary school soon after commencing year 9. The applicant then had various jobs. For the last nine years the applicant has been running his own business of collecting and distributing firewood, a subsidiary of a business conducted by his parents.
The applicant was in a de facto relationship when he was sentenced. He had three children aged under ten by an earlier partner.
The applicant was declared eligible to receive disability services. His eligibility was based upon a psychologist’s assessment that he had a mild intellectual disability. He had limited skills in numeracy and literacy, difficulty in expressing himself and in understanding more complex conversations. A psychologist assessed the intelligence quotient of the applicant on a scale of 67. He also had problems with anger management.
The applicant had some 70 prior convictions from 26 court appearances including convictions for offences of violence, offences of dishonesty, drug offences and driving offences. Of particular significance were prior convictions for aggravated burglary and recklessly causing injury. The applicant had received and breached community‑based orders and suspended sentences.
The applicant seeks leave to appeal against the sentence on four grounds. The first ground of the application is that the sentencing judge erred in finding that the applicant’s plea was made at a late stage. His Honour said that the plea was made:
... at a late stage and at a time when your co‑accused had made statements implicating you.
It appears that the plea was offered a month before a contested committal hearing. Accordingly, counsel for the applicant submitted it was wrong to describe the plea as a late plea.
It is evident from his sentencing remarks that the judge knew precisely when the intention to plead guilty had been communicated to the Crown. The co‑offenders pleaded guilty at committal mentions some months earlier. I think that the sentencing judge meant no more than that the applicant’s plea was comparatively late. There was no error which appears to have affected the sentence.
The second ground of the application is that the judge erred in his approach to the applicant’s mental disability. The sentencing judge said that he took into account a number of reports as to the applicant’s mental state and expressly referred to his intellectual disability, his limited ability to read and a diagnoses of ADHD. Counsel for the applicant submitted that, while the applicant was not profoundly handicapped, his disability did bear upon the weight to be given to general and specific deterrence and was also relevant to the applicant’s moral culpability. See Muldrock v R (2010) 244 CLR 12, [53]‑[54].
I do not think that the fact that the sentencing judge did not refer to R v Verdins or say that he was discounting the sentence on account of the applicant’s disability meant that there was no appropriate weighting of this consideration in the instinctive sentencing synthesis. The sentence itself does not bespeak such an error.
The third ground of the application is that the sentence breached the principle of parity. Counsel for the applicant contended that the applicant ought to have received an equal or lesser sentence than that imposed upon Stone, who was sentenced to be imprisoned for a term of four years with a minimum term of two years and six months.
There were a number of circumstances differentiating the offenders, some in favour of Stone, others in favour of the applicant. Stone was five years younger than the applicant. Stone had superior prospects of rehabilitation. The applicant committed the offences while on bail. The applicant was the instigator of the aggravated burglary. Stone was not involved in the events at Noojee and was convicted of fewer offences. The applicant, unlike Stone, made a statement to the police in which he disclosed the identity of a co‑offender. The applicant helped the police recover the stolen firearms. The applicant, unlike Stone, suffered from an intellectual disability. The applicant could invoke the principle of totality, for he had served an 11 month sentence up to the date when he was remanded in custody.
Viewed overall, I am of the opinion that the sentencing judge was entitled to distinguish between the offenders as he did. Parity does not involve scientific nicety, for most of the factors to be most considered are not strictly commensurable.
The final ground of the application is that the sentence is manifestly excessive. Counsel for the applicant relied upon the plea of guilty, the applicant’s cooperation with the police, his intellectual disability and the principles of parity and totality. On the other hand, the offending was serious and was committed by a man with an extensive history of crime. Some of the offences were committed when the applicant was on bail.
Weighing these factors, I am of the opinion that the sentence was not beyond that which could be imposed by a reasonable sentencing judge in the proper exercise of the sentencing discretion.
As I think at least some of the grounds were arguable, I would grant leave to appeal but I would dismiss the appeal.
PRIEST JA:
I agree.
BUCHANAN JA:
The order of the Court is that the application for leave to appeal against sentence is granted. The appeal is treated as instituted and heard instanter and is dismissed.
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