Williams v R

Judgment 1BEAZLEY JA : I agree with James J. 2JAMES J : Jay Williams applied for leave to appeal against sentences imposed on him on 9 September 2010 in the District Court by his Honour Judge Knox for three offences, to all of which the applicant had pleaded guilty, namely:- 1.Robbery being armed with an offensive weapon ("the armed robbery offence") 2.Robbery in company ("the robbery in company offence") 3.Escape from lawful custody ("the escape offence") 3In sentencing the applicant for the armed robbery offence the sentencing judge took into account an offence of breaking and entering with intent to steal and an offence of failing to appear in accordance with a bail undertaking. 4The sentences imposed by the sentencing judge were:- 1.For the armed robbery offence, a non-parole period of four and a half years commencing on 1 September 2008 and a balance of the term of two years three months, that is a head sentence of six years nine months. 2.For the robbery in company offence, a non-parole period of five years four months commencing on 1 March 2009 and a balance of the term of three years eight months, that is a head sentence of nine years. 3.For the escape offence, a fixed term of imprisonment of six months commencing on 1 July 2014, the day after the expiration of the non-parole period of the sentence for the robbery in company offence. 5The aggregate sentences imposed were total head sentences of nine and a half years and total non-parole periods and a fixed term of six years four months. 6It had been agreed by the parties at the sentence hearing that the first sentence to be served should commence on 1 September 2008. The applicant had been arrested on 18 July 2008 and charged with the armed robbery offence. He was not granted bail. However, the applicant escaped from custody on 3 May 2009 (the escape offence), committed the robbery in company offence while at large and remained at large until he was arrested on 16 June 2009. 7Robbery being armed with an offensive weapon and robbery in company are both offences under s 97(1) of the Crimes Act for which the maximum penalty is imprisonment for 20 years. Escaping from lawful custody is an offence under s 310D(a) of the Crimes Act for which the maximum penalty is imprisonment for 10 years. 8The sentencing judge had first sentenced the applicant for these offences on 25 June 2010. The sentences imposed on 25 June 2010 were the same as the sentences later imposed on 9 September 2010, except that on 25 June 2010 the sentencing judge divided the head sentence of nine years for the robbery in company offence into a non-parole period of six years and a balance of the term of three years, producing some further, consequential, differences. 9On 9 September 2010 his Honour, purporting to apply s 43 of the Crimes (Sentencing Procedure) Act , on the basis that on 25 June 2010 a penalty had been imposed which was contrary to law in that the overall sentence did not reflect a finding of special circumstances his Honour had made in his sentencing remarks of 25 June 2010, set aside the sentences he had imposed on 25 June 2010 and imposed the sentences I have already stated. 10The sentencing judge had given the parties notice of his intention to set aside the sentences of 25 June 2010 and to re-sentence the applicant and there was no opposition on 9 September 2010 to his Honour adopting that course. On the hearing of this application neither party submitted that the sentencing judge had not been entitled to proceed as he had on 9 September 2010. The remarks on sentence his Honour had given on 25 June 2010 remained his Honour's principal sentencing remarks. The facts of the offences 11In the proceedings on sentence there was an agreed set of facts and his Honour's statement of the facts of the offences in his remarks on sentence was based on the agreed facts. The following is an abbreviated summary of his Honour's statement of the facts of the offences in his sentencing remarks. The armed robbery offence 12On the night of 11 July 2008 the victim, a middle-aged man who was a taxi driver by occupation, went to a block of units where his parents lived for the purpose of visiting his parents. 13While the victim was outside the building, the applicant ran up behind the victim and punched the victim on the side of the face. Two co-offenders, a man named Davies and a juvenile M, were with the applicant. 14The blow by the applicant caused the victim to fall to the ground. All three of the offenders repeatedly kicked and punched the victim as he lay on the ground, demanding money from the victim. 15The applicant dragged the victim into the foyer of the building. The victim attempted to get up and flee. The applicant kicked and punched the victim. The co-offenders kicked the victim, while he was on the ground. 16Davies then threw a beer bottle at the victim, which struck the victim's head with such force that the bottle smashed on impact. It was this beer bottle thrown by the co-offender Davies which the Crown relied on as being an offensive weapon. 17All three offenders continued to punch and kick the victim. The victim got up and tried to run away. He was chased by all of the offenders. Davies pushed the victim, who fell against a wall and landed on the ground. While the victim was on the ground the applicant punched the victim in the face and the two co-offenders punched and kicked the victim. All three offenders searched the victim's pockets and removed items of property. 18The applicant took hold of the victim's jacket, rolled the victim on to his back and kicked the victim twice in the face, rendering him unconscious. The juvenile pushed the applicant away from the victim. 19Davies kicked the victim again in the face and in the stomach. Davies separated the victim's legs and kicked the victim in the area of his genitals. Davies kicked the victim in the back of the head. 20The three offenders then left the scene. 21The attack on the victim by the three offenders had been captured by closed circuit television. 22The victim remained unconscious for a time, before staggering to his feet and going to his parents' unit. The victim was subsequently taken to hospital. His injuries included bruising, lacerations to the face and ribs and severe swelling to his face. The robbery in company offence 23The victim of this offence was another taxi driver, who was on duty when the offence was committed. The victim was flagged down by the applicant, a co-offender D and another co-offender, being the same juvenile M. The three offenders entered the taxi and the driver was directed by D to drive to Redfern. 24At a time when the taxi was stationary, the applicant got out of the taxi, approached the driver's door, opened the door, took the key out of the ignition and demanded money from the victim. The victim, who was in fear, took money out of his pocket and gave the applicant $90. The applicant demanded further money and the victim said that he had no further money. 25The victim activated his emergency button and this caused his telephone to be activated. The applicant demanded that the victim give him his phone and the victim complied. The applicant then twice punched the victim in the face. 26The applicant felt the victim's clothing, searching for a wallet. The applicant took the victim's watch off his wrist. The applicant opened the glove box of the taxi and found a coin dispenser in which the victim stored coins. It was a metal and plastic container. The applicant lifted up the coin dispenser and swung it down, hitting the victim in the face. The co-offender D told the applicant to calm down. 27Ultimately, the three offenders left the taxi and the victim drove away. As in the case of the first offence, the entire incident was captured by closed circuit television. The injuries to the victim were a black eye and scratches to his face. The escape offence 28On 3 May 2009 the applicant and three other prisoners were at a recreational oval at the Correctional Centre where they were inmates. They cut through perimeter fencing, climbed a wall and escaped. Two of the escapees were arrested shortly afterwards. The applicant remained at large, until he surrendered to police at a police station on 16 June 2009. The sentencing judge's remarks on sentence 29As I have already noted, the sentencing judge in his remarks stated the facts of the offences. In subsequent parts of his remarks on sentence the sentencing judge referred to the following matters. 30His Honour found that the applicant's role was central in all three offences and that his criminality was above mid-range. 31His Honour referred to the guideline judgment for armed robbery of R v Henry (1999) 46 NSWLR 346 and, in particular, to the common category of case described in Spigelman CJ's judgment (at 380 (162)). His Honour found that most of the factors in the common category of case were "totally applicable" and "provide a minimum platform for my consideration of the appropriate sentence". 32His Honour gave consideration to what aggravating factors had been present in the commission of the offences. An aggravating factor for the armed robbery offence was that it had been committed while the applicant was on conditional liberty. An aggravating factor for the robbery in company offence was that it had been committed while the applicant was an escapee. 33His Honour gave consideration to whether either of the robbery offences had involved gratuitous cruelty but decided that, while there had been a high level of violence, he should not find that there had been gratuitous cruelty. 34His Honour found that, while the victim of the armed robbery offence was in fact a taxi driver by occupation, he had been merely a member of the public at the time that offence was committed. However, the victim of the robbery in company offence was on duty as a taxi driver at the time the offence was committed and hence was a vulnerable person within s 21A(2)(l) of the Crimes (Sentencing Procedure) Act . 35The applicant, an Aboriginal, was born on 18 August 1989 so that he was 18 years old at the time of committing the armed robbery offence and 19 years old at the time of committing the other two offences. His youth was a mitigating factor. 36The applicant had a deprived childhood of a kind unfortunately common in Aboriginal offenders. The sentencing judge accepted the applicant's "upbringing as being one of chaos, instability and exposure to alcohol and physical abuse from his father". The sentencing judge referred to Fernando factors ( R v Fernando (1992) 76 A Crim R 58). His Honour found that the applicant had had a very limited educational and vocational history but had done some courses while in gaol. 37The applicant had abused drugs and alcohol since he was 16 years old. 38A psychometric assessment revealed that the applicant had low verbal intelligence. The sentencing judge's impression gained during the sentence hearing, in which the applicant had given evidence, was that the applicant had presented himself as being a fairly quick-thinking individual. 39The applicant, despite his youth, had an extensive criminal history, including numerous convictions for offences of breaking and entering, convictions for robbery and stealing from the person and a previous conviction for escaping, although from police custody and not Correctional Services custody. His Honour, although referring to Veen v The Queen (No 2) (1987-1988) 164 CLR 465, would appear to have regarded the applicant's previous criminal history as merely disentitling him to any leniency. 40In parts of his remarks on sentence which are relevant to a consideration of some of the applicant's grounds of appeal against sentence, the sentencing judge dealt with questions of parity between the applicant and the applicant's co-offenders on the armed robbery offence and the escape offence. I will consider these parts of his Honour's remarks when I am considering those grounds of appeal against sentence. The applicant's alleged co-offenders on the robbery in company offence, D and M, did not plead guilty and were acquitted at a trial, so that no question of parity arose in relation to that offence. 41I will consider what the sentencing judge said in his remarks about the applicant's pleas of guilty when considering one of the grounds of appeal against sentence. 42The sentencing judge declined to make a finding that the applicant had good prospects of rehabilitation and said that in sentencing the applicant he would not take into account that, as an escapee, he would be likely to have less opportunity while in custody to take part in courses. 43The sentencing judge considered that there was a need for some accumulation of the sentences for the robbery offences, because the offences involved different victims and had been committed at different times and in different circumstances. 44The sentencing judge found special circumstances within s 44 of the Crimes (Sentencing Procedure) Act , in that the applicant was "an urban indigenous offender who has been exposed to repeated acts of violence from an early age as well as alcohol and drug abuse", in the applicant's youth and in the fact that it was the first time the applicant had been in adult custody. The appeal 45The applicant relied on the following grounds of appeal:- Ground 1: His Honour erred by not granting a 25 per cent discount to the applicant for the plea of guilty before committal in accordance with s 17(1)(a) of the Criminal Case Conferencing Trial Act 2008. Ground 2: His Honour made a mistake of fact when considering the issue of parity. Ground 3: The applicant has a legitimate sense of grievance when comparing the sentence imposed upon him with respect to count 1 as opposed to that imposed upon his co-offender Davies. Ground 4: The sentences imposed upon the applicant were manifestly excessive. 46I will consider these grounds of appeal in turn.