Williams, Peter Edward Charles v R

Court of Criminal Appeal (NSW)|2017-01-31|Before: Bathurst CJ, Johnson J, Fagan J

Solicitors: Mr Mark Hanlon, Lambton Law Solicitors (applicant) Mr Craig Hyland, Office of the Director of Public Prosecutions (respondent) File Number(s): 2014/82353 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 21 April 2016 Before: Robison DCJ File Number(s): 2014/82353

The facts of the offence

The applicant was 54 years old at the date of the offence. He was in business as a jeweller at Hamilton, near Newcastle. The victim ran a business of repairing antique clocks from premises which were also in the Newcastle area. The applicant and the victim had known each other for about 15 years prior to the offence and had had business dealings with each other. The victim was also aged 54 years.
Prior to 19 November 2013 the applicant became aware that one William Barry Jones believed he was owed money by the victim and that the victim was in possession of certain clocks and barometers, the property of Jones. Jones had at some time carried on business under the name Bower Bird Antiques in the Newcastle area, at Islington, and had referred clock repairs to the victim.
By 19 November 2013 the applicant had agreed with Jones to assist him with respect to his claim upon the victim for repayment of the alleged debt and return of the property. On that day, when the victim attended the applicant's shop, the applicant stated that he would be receiving a clock for repair on 26 November 2013. The two of them made an arrangement for the victim to return to the applicant's shop at 1:00 pm on 26 November 2013 to take delivery of the clock. This was a ruse perpetrated by the applicant for the purpose of securing the victim's attendance at his shop at a specific time. The date and time of the meeting were reconfirmed in subsequent communications between the two men in the days immediately following 19 November 2013.
On 26 November 2013 three men, who have not been identified by investigating police, arrived at the applicant's shop at 12:46 pm. A fourth man, also unidentified, arrived at 12:48 pm. According to the agreed statement of facts which was before the learned sentencing judge the applicant "accepts that [he] procured some of those men to confront the [victim]". William Jones arrived at 12:47 pm and he introduced each of the four unidentified men to the applicant.
The applicant's premises comprised a showroom at the front, a workroom behind and an office area adjoining the workroom. The applicant directed the four men through the door which led from the showroom into the workroom. William Jones entered the adjoining office space. The applicant instructed a sales assistant who was present in the shop to leave and take her lunch break. He instructed his son, who had been occupied in the workroom, to leave and purchase coffee for the four men. All of this had occurred by 12:56 pm, at which time the applicant himself entered the workroom and waited.
At 12:57 pm the victim arrived at the shop. The applicant came out into the showroom to greet him and directed him into the workroom. The applicant then beckoned to Jones, who entered the workroom with the applicant and the victim, shortly before 12:58 pm. Some 30 seconds later the applicant left the workroom, entered the office area and disabled a closed-circuit television system which monitored the interior of the premises.
Inside the workroom the four unidentified men surrounded the victim. One of them indicated William Jones and said: "You owe him money". The victim attempted to escape. He opened the door leading back into the showroom but was blocked from leaving by one of the four men. Another of them punched him twice in the face and forced him back. This assault drew blood from a cut above the victim's left eye and from his nose. One of the four demanded that the victim hand over his wallet, keys and diamond ring. He complied. The four men forced him to sit and they secured his wrists with cable ties.
After the victim had been in the workroom with the four men and Jones for about 10 minutes he was led through the showroom and out of the building. He was then seated in a black motor vehicle. As he was walked through the shop the cable ties on his wrists were concealed by a shirt. The applicant said to the four men at this time "Don't hurt him". The applicant appeared to the victim to be distressed when he said this.
In the car two of the men produced weapons, namely a knife and a Taser. They drove the victim to a Kennard's storage depot where property of the victim, including jewellery, was stored. They forced the victim to provide his access codes to the storage unit and then utilised them and stole some of his property. After this he was driven to another locality and released.
The above summary of the facts is taken from the agreed statement which was before his Honour. The learned judge accepted that the applicant had not anticipated physical violence towards the victim but had no doubt "that his intention was that the victim would be made aware in emphatic terms what his obligations were to Jones. Being made aware in emphatic terms to some extent must involve an element of approach and, at the least, a threat of violence".
Because the applicant was the one who showed the four unidentified men into the rear room, where they lay in wait for the victim, his Honour found that the applicant had "set up this situation for the victim and must have been aware that there would have been an element of detention and, at the very least, a threat of physical violence". The applicant conceded before his Honour that he disabled the closed circuit television in order to erase evidence of the four men having been in the workroom and to prevent any recording of what took place there.
His Honour accepted that the applicant did not witness a physical assault although he must have seen the injuries the victim had sustained when the latter was led through the showroom to the motor vehicle. It was also found that the applicant had not expected any demand to be made of the victim other than for the money and property which the applicant believed was properly due to William Jones and that he had not expected the victim would be taken from the shop premises to the storage location or have weapons produced against him whilst he was being transported there by car.

Subjective considerations

The applicant's record comprised a number of offences of driving whilst his blood alcohol content exceeded prescribed concentrations and an offence of destroying or damaging property from January 2002 which had been dealt with by way of a bond. This record was neutral to the sentencing exercise and appears to have been so treated by his Honour. It was accepted in his favour that the offence was out of character, that he had demonstrated genuine remorse, that he was not likely to reoffend and that there were strong prospects of rehabilitation. His plea of guilty was entered very late, having been first indicated on the day the charge was listed for trial. A discount of 5% was allowed.

Ground 1 - acts for which the applicant was not criminally responsible

His Honour made a clear finding that the applicant was not criminally responsible for the actions of his co-offenders after they left the shop premises. It was accepted that although the applicant was a participant in a joint criminal enterprise he could not be liable for acts of his co-offenders which took place beyond his presence and which he had not contemplated in the preconcert. His Honour said: "… in the car two of the men produced weapons, namely, a knife and a Taser. The victim was driven to Kennard's Storage where he had property stored, including jewellery … he was forced to give over his access codes, and items of his property were stolen, and then he was later released in Cooks Hill. There is nothing to indicate that the [applicant] accompanied those in the car. It appears that his personal and direct involvement at that stage ended at a time when the victim was being escorted back to the car. … The facts indicate that he has, therefore, been involved to the extent that he arranged for the victim to attend [his jewellery shop], arranged for the persons to confront and detain the victim in the secure rear room of his premises, and caused the victim to enter and be detained by the group inside the room where he was assaulted. Undoubtedly, he deactivated the CCTV for the reasons I have enunciated and, as I indicated earlier, there is certainly no evidence that he was a party to what occurred after the victim was taken from [his shop]. His assertion that he had no expectation that the victim would be taken or that weapons would be produced is, in my view, an assertion that I can accept in the circumstances, given that he was not anticipating any physical violence. …" (Emphasis added).
In a subsequent passage of the Remarks on Sentence His Honour said: "I am mindful, of course, of the extent to which he was involved in this joint criminal enterprise. That needs to be taken into account together with the overall level of criminality involved. There must have been a level of planning involved, not over any particular prolonged period of time, but the facts really speak for themselves about what led up to all of this. There was the issue of property which was demanded and there must have been an expectation on the part of the offender that the victim would be taken from the shop to recover that property. After all, that is really what it was all about." (Emphasis added).
The applicant's argument on ground 1 is that the emphasised portion of the passage quoted at [19] contradicted the emphasised words quoted at [18] and led to his Honour sentencing on a basis which attributed to the applicant acts of the co-accused after they had escorted the victim from the applicant's shop. It is said that this attribution was contrary to the Agreed Facts which the Crown had tendered.
There is no such contradiction as propounded by the applicant. In the later passage, quoted at [19], his Honour was referring to an expectation that, as part of the criminal plan to which the applicant adhered, the victim would be taken to wherever the clocks and barometers claimed by William Jones were held so that they could be delivered up. In the two passages extracted above his Honour recognised that whilst the applicant must have intended the victim would be transported under detention to that place and for that purpose, he had not intended or contemplated what in fact occurred after the victim was taken from the applicant's shop.
Nothing said by his Honour detracted from his explicit acceptance that the applicant could not be sentenced as if those subsequent criminal acts were attributable to him. On the contrary, subsequent to the passage quoted at [19] upon which the applicant relies, his Honour said: "Clearly, the case against this particular offender ends when the victim was taken from the store". Ground 1 is rejected.

Ground 2 - manifestly excessive

The applicant did not, in support of ground 2, rely upon sentences passed in any other cases which might be said to be comparable. No argument was made that the sentence imposed was beyond the range of other decisions or that it involved inconsistency in the application of the law having regard to the degree of punishment of other offenders: cf Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [6]; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [56]. The absence of any such comparison or argument is unsurprising as other instances of offending against s 86 exhibit such a wide variety of circumstances that it is doubtful whether examination of them could reveal any reasonably homogenous subgroup from which a pattern of sentencing in like cases could be discerned: R v Newell [2004] NSWCCA 183 at [43].
This court in R v Newell at [32] and again in R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 at [55] has identified features of an offence of this nature which may be particularly relevant to its objective seriousness. In the present case, although the period of detention for which the applicant is criminally responsible was relatively short, that detention was pre-planned with some care, the applicant having used his business association with the victim to lure him to the applicant's shop and, without warning, into the presence of the four men whose presence was evidently intended to intimidate.
The applicant characterised his purpose as having been to enforce a "claim of right" by William Jones. This was relied upon in the application for leave as a mitigating consideration. But it is not. As was said by Johnson J (McClellan CJ at CL and Hammerschlag J agreeing) in R v Speechley at [122], the sentence imposed in such a case should reflect "..the need for denunciation and general deterrence, as resort to vigilante action as a response to some misconduct or crime committed (or believed to have been committed) by the victim is to be severely discouraged: Barlow v R [2008] NSWCCA 96 at [2], [40]; R v Rayment [2010] NSWCCA 85 at [106]."
His Honour rightly gave effect to this consideration, expressly recognising it in the following passage: "What does loom large in all of this, of course, is general deterrence. This was a classic stand over situation and clearly a strong message should be sent to the community that this sort of activity will not be tolerated. In the court's view these kinds of things are considered very serious indeed."
For this ground to succeed the applicant would have to demonstrate that it may be inferred from the length of the sentence there was some misapplication of principle by the learned judge even though no specific error is expressly apparent from the remarks on sentence: Wong v The Queen at [58]. The applicant would have to show that the sentence was unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; [1936] HCA 40; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54.
That has not been shown in relation to the sentence of 3 years and 3 months with a non-parole period of 1 year 9 months, taking into account the objective seriousness of the offending and the need for general deterrence and making due allowance for the favourable subjective considerations. Ground 2 is also rejected.

Orders

For these reasons the orders of the Court are: 1. Leave to appeal is granted. 2. The appeal is dismissed.

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