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Williams v The Queen

Williams v The Queen

Case [2016] ACTCA 15 13 May 2016

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Williams v The Queen
Citation:	[2016] ACTCA 15
Hearing Date:	8 February 2015
DecisionDate:	13 May 2016
Before:	Refshauge, Penfold and Wigney JJ
Decision:	1. The appeal is allowed. 2. The orders made by Burns J on 5 June 2015 other than the Good Behaviour Orders in relation to the offences of proceed when traffic arrow red (CC14/05178) and exceed speed limit (CC14/5179) be set aside. 3. Derek Joseph Williams is re-sentenced as follows: (i) for the offence of aggravated burglary (CC14/5180) he is sentenced to imprisonment for one year and eight months to commence on 5 March 2015 and end on 4 November 2016; (ii) for the offence of theft (CC14/5181) he is sentenced to imprisonment for four months to commence on 5 August 2016 and end on 4 December 2016; (iii) for the offence of driving whilst disqualified (CC14/5175) he is sentenced to four months imprisonment to commence on 5 September 2016 and end on 4 January 2017 and he is disqualified from holding or obtaining a licence from 13 May 2016 to 22 June 2017; (iv) for the offence of furious/reckless/dangerous driving (CC14/05176) he is sentenced to four months imprisonment to commence on 5 October 2016 and end on 4 February 2017 and he is disqualified from holding or obtaining a licence from 13 May 2016 to 22 June 2016; (v) for the offence of driving a motor vehicle without consent (CC14/05177) he is sentenced to five months imprisonment to commence on 5 December 2016 and end on 4 April 2017. 4. The sentence will be suspended with effect from 16 May 2016. 5. Derek Joseph Williams is required to sign an undertaking to comply with the offender’s good behaviour obligations for twelve months with a probation condition that he be under the supervision of the Director-General or her delegate for twelve months or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to where he resides, and him undertaking such vocational courses and treatment and counselling for drug and alcohol addiction and mental impairment as the person supervising him considers appropriate.
Catchwords:	APPEAL – Criminal law – appeal against sentence – multiple offences committed – whether the sentence imposed by the trial judge caused disparity between co-offender’s sentences – re-sentencing
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), s 205 Criminal Code 2002 (ACT), ss 308, 312(a), 318 Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)(a) Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 7(1) Australian Road Rules (ACT), rr 20, 60
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Dalton v The Queen [2015] ACTCA 48 Dinsdale v The Queen (2000) 202 CLR 321 El-Helou v R [2014] NSWCCA 209 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 House v The King (1936) 55 CLR 499 at 505 Josefskiv 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.

Continue reading Williams v The Queen

Details

AGLC: Williams v The Queen [2016] ACTCA 15
Case: [2016] ACTCA 15
Decision Date: 13 May 2016

CaseChat Overview and Summary

The appeal concerned a sentence imposed by Burns J on Derek Joseph Williams for multiple offences, including aggravated burglary, theft, driving whilst disqualified, furious/reckless/dangerous driving, and driving a motor vehicle without consent. The primary ground for appeal was that the sentence imposed by the trial judge resulted in an unjust disparity when compared to the sentences received by a co-offender. The matter was heard by Refshauge, Penfold, and Wigney JJ of the Court of Appeal.

The Court of Appeal was required to determine whether the sentence imposed on Mr. Williams was manifestly excessive or unjust, particularly in light of the disparity with his co-offender's sentence. This involved a re-sentencing exercise to assess the appropriate punishment for the offences committed by Mr. Williams, considering all relevant factors, including the need for consistency in sentencing where appropriate.

The Court allowed the appeal, finding that the original sentence did indeed cause an unjust disparity. In re-sentencing Mr. Williams, the Court applied principles of sentencing that aim to achieve proportionality and avoid unwarranted differences between co-offenders. The Court set aside the original orders, except for the Good Behaviour Orders for two minor traffic offences, and imposed a new sentence structure. This new sentence included terms of imprisonment for the more serious offences, with specific commencement and end dates, and disqualifications from holding a driver's licence. Crucially, the overall sentence was suspended from 16 May 2016, subject to Mr. Williams entering into a good behaviour undertaking for twelve months. This undertaking included supervision by the Director-General or their delegate, with conditions relating to residence, and mandatory participation in vocational courses and treatment for drug and alcohol addiction and mental impairment as deemed appropriate by the supervisor.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders made by Burns J on 5 June 2015 other than the Good Behaviour Orders in relation to the offences of proceed when traffic arrow red (CC14/05178) and exceed speed limit (CC14/5179) be set aside.

3. Derek Joseph Williams is re-sentenced as follows:

(i) for the offence of aggravated burglary (CC14/5180) he is sentenced to imprisonment for one year and eight months to commence on 5 March 2015 and end on 4 November 2016;

(ii) for the offence of theft (CC14/5181) he is sentenced to imprisonment for four months to commence on 5 August 2016 and end on 4 December 2016;

(iii) for the offence of driving whilst disqualified (CC14/5175) he is sentenced to four months imprisonment to commence on 5 September 2016 and end on 4 January 2017 and he is disqualified from holding or obtaining a licence from 13 May 2016 to 22 June 2017;

(iv) for the offence of furious/reckless/dangerous driving (CC14/05176) he is sentenced to four months imprisonment to commence on 5 October 2016 and end on 4 February 2017 and he is disqualified from holding or obtaining a licence from 13 May 2016 to 22 June 2016;

(v) for the offence of driving a motor vehicle without consent (CC14/05177) he is sentenced to five months imprisonment to commence on 5 December 2016 and end on 4 April 2017.

4. The sentence will be suspended with effect from 16 May 2016.

5. Derek Joseph Williams is required to sign an undertaking to comply with the offender’s good behaviour obligations for twelve months with a probation condition that he be under the supervision of the Director-General or her delegate for twelve months or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to where he resides, and him undertaking such vocational courses and treatment and counselling for drug and alcohol addiction and mental impairment as the person supervising him considers appropriate.

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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Citations

AGLC Citation

Williams v The Queen [2016] ACTCA 15

Most Recent Citation

R v Kelly [2016] ACTSC 281

Cases citing this decision · 5 of 5 shown

Williams v The Queen
[2018] ACTCA 4 Para 1

…The appellant is no stranger to the court system. His numerous visits have included one matter in this Court ( Williams v The Queen [2016] ACTCA 15). At [10] of its judgment, the Court usefully described the appellant’s (then) criminal history:…
Singh v The Queen
[2017] ACTCA 17 Para 1

…See also Rubino v The Queen [2015] ACTCA 22 at [26]; Quzag v The Queen (No 4) [2016] ACTCA 27 at [49]; Williams v The Queen [2016] ACTCA 15; 75 MVR 482 at 496-7; [60]-[65].…
R v Williams
[2017] ACTSC 298 Para 1

…it is not useful to set out more than a summary in these reasons. That criminal history was described by the Court of Appeal in Williams v the Queen [2016] ACTCA 15 at [10] in the following terms:…
Beniamini v Craig
[2017] ACTSC 30 Para 1

…s manifestly excessive or inadequate. The identification of specified matters is then a particular of that ground of appeal. See Williams v The Queen [2016] ACTCA 15; 75 MVR 482 at 490; [29].…
R v Kelly
[2016] ACTSC 281 Para 1

…In Williams v The Queen (2016) 75 MVR 482, Mr Williams and a co-offender broke into retail premises in Fyshwick and stole property valued at $500. He had a drug addiction which he had tried to resolve by attending residential rehabilitation. He had an extensive criminal history. For the aggravated burglary, he was sentenced t…

View all 5 citing cases →

Cases cited in this decision · 25 of 25 shown

Dalton v The Queen
[2015] ACTCA 48 Para 1

…ation to the appeal ground that a sentence is manifestly excessive are well settled. They were recently summarised by the Court in Dalton v The Queen [2015] ACTCA 48 at [18] in the following terms:…
R v Williams
[2015] ACTSC 150 Para 1

…and periods of imprisonment, but none of these [had] been sufficient to deter [the appellant] from further criminal offending” ( R v Williams [2015] ACTSC 150 at [12]).…
Saraya v R
[2015] NSWCCA 63 Para 1

…New South Wales Court of Criminal Appeal, 29 February 1996, unreported), Gleeson CJ said, in a passage extracted in Ismunandar at [38] and Saraya v R [2015] NSWCCA 63 at [17]:…
El-Helou v R
[2014] NSWCCA 209 Para 1

…06 at 217; [23]-[26] ( Ismunandar ); Rees v The Queen [2012] NSWCCA 47 at [50], [67]; Ngati v R [2013] NSWCCA 203 at [80]; El-Helou v R [2014] NSWCCA 209 at [25].…
Barbaro v The Queen
[2014] HCA 2 Para 61

…oneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen ; Zirilli v The Queen (2014) 305 ALR 323 at [61]. ·In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there…
Bugmy v The Queen
[2013] HCA 37 Para 1

…to take into account the appellant’s deprived background as an Aboriginal offender in accordance with the High Court decision in Bugmy v The Queen (2013) 249 CLR 571 ( Bugmy ).…
Ngati v R
[2013] NSWCCA 203 Para 1

…ndar ; R v Siregar (2002) 136 A Crim R 206 at 217; [23]-[26] ( Ismunandar ); Rees v The Queen [2012] NSWCCA 47 at [50], [67]; Ngati v R [2013] NSWCCA 203 at [80]; El-Helou v R [2014] NSWCCA 209 at [25].…
Balthazaar v The Queen
[2012] ACTCA 26 Para 61

…ed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].…
Rees v R
[2012] NSWCCA 47 Para 1

…0 A Crim R 300 at 383-4; [289]; R v Ismunandar ; R v Siregar (2002) 136 A Crim R 206 at 217; [23]-[26] ( Ismunandar ); Rees v The Queen [2012] NSWCCA 47 at [50], [67]; Ngati v R [2013] NSWCCA 203 at [80]; El-Helou v R [2014] NSWCCA 209 at [25].…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 1

…of equal justice and in general terms requires that “like offenders should be treated in a like manner”: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at 472-3; [28] ( Green ). Parties to the same offence should, if other things are equal, receive the same sentence. However, the parity principle allows for…
Melham v The Queen
[2011] NSWCCA 121 Para 6

…he relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 ( Melham ). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous…
Youkhana v R
[2011] NSWCCA 37 Para 1

…To like effect, in Youkhana v R [2011] NSWCCA 37, R A Hulme J (Beazley JA and Hidden J agreeing) said (at [49]):…
Josefski v R
[2010] NSWCCA 41

…CLR 321 El-Helou v R [2014] NSWCCA 209 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 House v The King (1936) 55 CLR 499 at 505 Josefski v R [2010] NSWCCA 41 Lowe v The Queen (1984) 154 CLR 606 Ngati v R [2013] NSWCCA 203 Postiglione v The Queen (1997) 189 CLR 295 R v Borkowski [2009] NSWCCA 102 R v Chen […
R v Robert Borkowski
[2009] NSWCCA 102

…osefski v R [2010] NSWCCA 41 Lowe v The Queen (1984) 154 CLR 606 Ngati v R [2013] NSWCCA 203 Postiglione v The Queen (1997) 189 CLR 295 R v Borkowski [2009] NSWCCA 102 R v Chen [2002] NSWCCA 174 R v Diamond (New South Wales Court of Criminal Appeal, 18 February 1993, unreported) R v Doan (2000) 50 NSWLR 115 R v Ismu…
Markarian v The Queen
[2005] HCA 25

…is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].…
R v Walker
[2004] NSWCCA 230 Para 1

…as a result of the revocation of his parole. The appellant relied on the judgment of the New South Wales Court of Criminal Appeal in R v Walker [2004] NSWCCA 230 ( Walker ) in support of this submission.…
R v Doan
[2003] NSWSC 345 Para 1

…cing a sentence to a level which would be “an affront to the proper administration of justice”: Green at 475-6; [33]; see also R v Doan (2000) 50 NSWLR 115 at 120; [19]; R v Chen (2002) 130 A Crim R 300 at 383-4; [289]; R v Ismunandar ; R v Siregar (2002) 136 A Crim R 206 at 217; [23]-[26] ( Ismunandar ); Rees v The Q…
R v Ismunandar and Siregar
[2002] NSWCCA 477

…CA 174 R v Diamond (New South Wales Court of Criminal Appeal, 18 February 1993, unreported) R v Doan (2000) 50 NSWLR 115 R v Ismunandar ; R v Siregar [2002] NSWCCA 477 R v Rexhaj (New South Wales Court of Criminal Appeal, 29 February 1996, unreported) R v Walker [2004] NSWCCA 230 Rees v The Queen [2012] NSWCCA 47 Yo…
R v Chen
[2002] NSWCCA 174

…1 Lowe v The Queen (1984) 154 CLR 606 Ngati v R [2013] NSWCCA 203 Postiglione v The Queen (1997) 189 CLR 295 R v Borkowski [2009] NSWCCA 102 R v Chen [2002] NSWCCA 174 R v Diamond (New South Wales Court of Criminal Appeal, 18 February 1993, unreported) R v Doan (2000) 50 NSWLR 115 R v Ismunandar ; R v Siregar [2002]…
Dinsdale v The Queen
[2000] HCA 54 Para 1

…nable or plainly unjust” and was therefore the third type of error referred to in House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 at 325-326; [4]-[6]. Nor did the appellant’s lengthy written submissions advert to the relevant principles in relation to the appeal ground that a senten…
Postiglione v the Queen
[1997] HCA 26 Para 1

…sentences to be imposed upon like offenders to reflect different degrees of culpability and different circumstances: Postiglione v The Queen (1997) 189 CLR 295 at 301 ( Postiglione ); Green at 472-3; [28]. Matters such as the age, background, previous criminal history, the general character of each offender, mitigat…
House v R
[1936] HCA 40 Para 1

…tly excessive in the sense that it was “unreasonable or plainly unjust” and was therefore the third type of error referred to in House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 at 325-326; [4]-[6]. Nor did the appellant’s lengthy written submissions advert to the relevant principle…
Lowe v R
[1984] HCA 46 Para 1

…e of grievance” with the heavier sentence imposed on him, and that there was an appearance that justice had not been done: Lowe v The Queen (1984) 154 CLR 606 at 623 ( Lowe ).…
Zirilli v The Queen
[2014] HCA 212

…entence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen ; Zirilli v The Queen (2014) 305 ALR 323 at [61]. ·In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context…
House v The King
63 WN 176 Para 1

…Judge was manifestly excessive in the sense that it was “unreasonable or plainly unjust” and was therefore the third type of error referred to in House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 at 325-326; [4]-[6]. Nor did the appellant’s lengthy written submissions advert to the relevan…

Legislation cited in this decision · 3

Crimes (Sentencing) Act 2005 (ACT)
205 2 mentions (from Para 1)
Road Transport (Driver Licensing) Act 1999 (ACT)
32(1)(a) 2 mentions
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
7(1) 2 mentions