Williams v The Queen; Saunders v The Queen - [2006] NSWCCA 33

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: WILLIAMS v. REGINA; SAUNDERS v. REGINA [2006] NSWCCA 33

FILE NUMBER(S):
2005/1856
2005/2265

HEARING DATE(S): Thursday 19 January 2006

DECISION DATE: 23/02/2006

PARTIES:
WILLIAMS, Bryan Charles v. REGINA
SAUNDERS, Geoffrey Allen v. REGINA

JUDGMENT OF: Basten JA Howie J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0369

LOWER COURT JUDICIAL OFFICER: Nield, DCJ.

COUNSEL:
Williams: A. Francis
Saunders: P. Lowe
Respondent: J. Girdham

SOLICITORS:
Williams: S. O'Connor
Saunders: W. Whitby
Respondent: S. Kavanagh

CATCHWORDS:
Criminal law - sentence - specially aggravated kidnapping - applicant's (Williams') offer to plead guilty - same sentence imposed on the applicant (Williams) and the co-offender - applicant (Williams) argued there should not have been a parity of sentences - whether sentence was manifestly excessive

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912

DECISION:
Applicant Williams: (a) that the sentences imposed be set aside (b) that the applicant be re-sentenced by this court (c) that a finding of special circumstances should be made, having regard to his good prior character and rehabilitation prospects (d) that the sentence imposed should allow for the time Mr. Williams spent in custody from the date of his arrest on 4 January 2003 until the date of his release on bail on 19 February 2003 (e) the applicant be re-sentenced to a non-parole period of 18 months to commence on 30 August 2004 and to expire on 28 February 2006, on which date he is eligible to be released on parole. The balance of the term of sentence of 12 months, which will commence on 1 March 2006 will expire on 28 February 2007
Applicant Saunders: (a) grant leave to appeal (b) appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1856
2005/2265
BASTEN, JA.
HOWIE, J.
HALL, J.
THURSDAY 23 FEBRUARY 2006

BRYAN CHARLES WILLIAMS v. REGINA
GEOFFREY ALLEN SAUNDERS v. REGINA

Judgment

BASTEN, JA: I agree with Hall, J.
HOWIE, J: I agree with Hall, J.
HALL, J: The court heard together applications for leave to appeal by Bryan Charles Williams and Geoffrey Allen Saunders in respect of sentences of imprisonment imposed upon each of them on 18 February 2005.
On 29 September 2004, the applicants pleaded not guilty to and stood trial upon indictments which alleged that they respectively on 15 December 2002 at Narara in the State of the New South Wales committed the following offences:-
(a)Specially aggravated kidnapping (in company and occasioning actual bodily harm), contrary to s.86(3) of the Crimes Act 1900. The offence carried a maximum penalty of imprisonment of 25 years.
(b)Aggravated indecent assault (in company and victim under 16 years), contrary to s.61M(1) of the Crimes Act 1900. The offence carried a maximum penalty of imprisonment of seven years.
On 29 September 2004, the applicant Geoffrey Allan Saunders, pleaded guilty to one count of cultivate prohibited plant. Sentencing for that offence was stood over and ultimately he was sentenced on 19 May 2005. This…

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.

Keep reading for free

Create a free CaseChat account to read Williams v The Queen; Saunders v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWCCA 33
Decision Date: 23 February 2006

CaseChat Overview and Summary

The appellant, Mr. Williams, along with his co-offender Mr. Saunders, was convicted and sentenced for the specially aggravated kidnapping of a victim, Mr. Foster. The appeal against sentence was heard in the High Court of Australia, where Mr. Williams raised three grounds of appeal: the failure to discount the sentence for his offer to plead guilty, the imposition of a sentence that gave rise to a sense of grievance, and the argument that the sentence was manifestly excessive.

Mr. Williams contended that the trial judge should have discounted the sentence due to his offer to plead guilty before the trial began. He also argued that the sentence imposed on him and his co-offender, which was identical, was unjust and created a sense of grievance. Lastly, Mr. Williams claimed that the sentence was manifestly excessive, considering the circumstances of the offence and his limited involvement.

The High Court reviewed the circumstances of the kidnapping, noting that while the ordeal was frightening for the victim, the offenders did not intend to cause him harm. The court examined Mr. Williams' limited involvement in the crime, which was from 4:00 pm to 6:00 pm, and the lack of evidence suggesting any physical harm to the victim. The Court held that the sentence was not manifestly excessive and that the trial judge appropriately considered the factors relevant to sentencing. The Court further found that the trial judge had correctly assessed the aggravating and mitigating factors, and there was no failure to discount the sentence for the offer to plead guilty. The appeal was ultimately dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In the case of Mr. Williams, there were three grounds of appeal, namely:-(a)An alleged failure to discount the sentence for the applicant’s offer to plead guilty before the commencement of the trial to the offence of which he was ultimately convicted.(b)The imposition of a sentence upon him and his co-offender which was said to give rise to a justifiable sense of grievance.(c)That the sentence was manifestly excessive.The facts It is convenient to extract (from paragraphs 2.2 to 2.5) the summary of facts set out in the written submissions provided by Ms. A. Francis of counsel, who appeared on behalf of Mr. Williams;-“2.2In summary, on 13 December 2002, the applicant’s co-offender, Mr. Saunders, was cultivating marijuana plants in his garage. The victim, Mr. Foster, broke into the garage to steal a Peewee 50 motorcycle belonging to the applicant [Williams]. During the course of the break-in, a neighbour witnessing the incident alerted the police. Mr. Saunders came upon the victim in the garage who then escaped out the window he had broken in through. Mr. Saunders gave chase although he did not catch him. Whilst Mr. Saunders was absent, the police attended the scene, discovered the plants, obtained a search warrant and returned. Mr. Saunders was arrested that day in respect of the cultivation and the deemed supply of the plants offences for which he was on bail when he detained Mr. Foster.2.3On 15 December 2002, at about midday, Mr. Saunders and his wife ‘picked up’ the [victim] from a train station and took him back to their house. Mr. Saunders later contacted the applicant [Williams] who arrived at the house at 4.00 pm. Thereafter, until shortly after 6.00 pm, the two men detained Mr. Foster for the purpose of finding out who were Mr. Foster’s accomplices in the break in. Importantly, the sentencing judge was satisfied that the offenders had no intention of hurting the victim. The victim was just shy of 15 years of age and whilst described by his Honour as ‘street wise’, a ‘drug user’, a ‘thief’ and a ‘liar’, his Honour was satisfied that the ordeal would have been a frightening and intimidating one.2.4His Honour was satisfied that the applicant’s [Williams’] involvement was from only 4.00 pm until 6.00 pm. Over this period, the applicant, in company with Mr. Saunders, drove the victim to a picnic area in the Strickland State Forest and forced him to dig a hole. There was evidence to the effect that Mr. Saunders had admitted saying to the victim during the incident that it would be ‘his bed for the night’.2.5The sentencing judge was satisfied that the victim was unreliable in his account in a number of important respects, namely, in relation to the allegation that he had been put in the boot of the car and in accordance with the jury’s verdict to the extent that he alleged he had been hurt by the offenders during the ordeal.”Submissions on behalf of the applicants Written and oral submissions were made on behalf of both applicants. I will deal firstly with those concerning Mr. Williams(a) Mr. Williams

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.