Williams v R

Judgment 1ALLSOP P: I have had the great advantage of reading in draft the reasons of Price J. I have no hesitation in agreeing with his Honour in relation to grounds 2, 3 and 4. My concern lies with ground 1. 2The decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 made clear that the decision in R v Way [2004] NSWCCA 131; 60 NSWLR 168 was wrongly decided. That does not mean that all sentences passed before Muldrock relying on Way are necessarily vitiated by operative error. No such mechanical submission was made by Mr Dhanji SC, who appeared for the applicant. Nevertheless, a judge who has so scrupulously and carefully followed the precedents binding on her (as this judge did, if I may respectfully say so) can be taken to approach the matter accordingly. 3Here at [74] of her reasons, the sentencing judge referred to "the principles discussed in" not only Way but a number of decisions of this Court, including R v McEvoy [2010] NSWCCA 110. In that decision, Simpson J (with whom Grove J and R A Hulme J agreed) in expounding those principles said at [90]-[91]: "[90] It is because the standard non-parole period is to be treated as 'a reference point, or benchmark, or sounding board, or guide post' (Way, [122]) that this Court has required some specification of where in the range of objective seriousness an offence lies. Leaving aside other relevant factors, such as personal circumstances, one would expect an offence classified as substantially below the mid-range of objective seriousness to incur a sentence substantially below the standard non-parole period; an offence slightly below mid-range of objective seriousness to incur a sentence slightly below the standard non-parole period; and the converse where the offence is slightly, significantly, or substantially above the mid-range of objective seriousness. [91] In fact, taking the approach proposed by Howie J provides some check against error. If an intended sentence has a non-parole period substantially below the standard non-parole period, but the offence is held to be slightly below the mid-range of objective seriousness, then a sentencing judge would be wise to examine whether other factors (for example, personal circumstances) warranted that differential. If they do not, the sentence should be re-considered: see Way, [124]." 4To approach the matter thus may be seen to involve a degree of tethering to the standard non-parole period requiring justification for movement away from the "reference point", or "benchmark", or "guidepost": cf R v El Helou [2010] NSWCCA 111; 267 ALR 734 at [70] ff. Reference points, benchmarks or guideposts imply a degree of precision to a process which necessarily lacks such precision. Metaphors are apt to conceal as much as illuminate. Here the sentencing judge in her otherwise careful and precise remarks can be taken to be following perspicaciously the approach then required by this Court. That said, as the reasons of Price J reveal, her Honour dealt with all the circumstances attending the sentencing process in a way which in form and expression might not reflect error even after Muldrock. The assessment of the approach taken, however, is not a formal one, rather it is substantive. At [78], her Honour spoke of the offence as "just above the mid-range". This appears to involve a degree of precision that might be seen as chimeric, though faithful to such cases as McEvoy and R v Knight [2007] NSWCCA 283; 176 A Crim R 338. The expression of reasons should be assessed by a fair reading of them in the context of the then perceived orthodoxy of approach, as McCallum J (with whom Beazley JA and Harrison J agreed) said in Bolt v R [2012] NSWCCA 50 at [35]-[36]. Here the non-parole period, taking into account the 25 per cent utilitarian discount applied, was a little above 21 years (what might be seen to be "just above" the standard non-parole period). 5It is unnecessary for me to reach a final view about the approach employed by her Honour. This is so because, like Price J, I am unpersuaded that a lesser sentence is warranted in law: Criminal Appeal Act 1912 (NSW), s 6(3). The facts have been set out fully in Price J's reasons. I will not dwell on them to an extent beyond that which is necessary. The applicant strangled and bludgeoned the young woman with a shovel in a brutal attack that killed her from the blunt force injury inflicted and asphyxiation. Though not planned, the murder was intended and brutal. The sentence in all the circumstances was not only not excessive (ground 4), but it was justly reflective of all the favourable circumstances and considerations put on behalf of the applicant. I am unpersuaded that a less severe sentence is warranted in law. Indeed, I am of the view that the sentence was both just and proportionate. 6Thus, even if her Honour committed an error in the application of principles in Way, the orders proposed by Price J should be made. 7PRICE J: The applicant pleaded guilty in the Local Court to the charge of having murdered Shana Joy Wilkinson on or about 18 September 2009 and adhered to his plea in the Supreme Court. The maximum penalty for murder is life imprisonment and a standard non-parole period of 20 years has been prescribed. The applicant was sentenced to imprisonment with a non-parole period of 16 years, 3 months and 23 days commencing on 24 September 2009 and expiring on 15 January 2026 with a balance of term of 5 years, 5 months and 8 days commencing on 16 January 2026 and expiring on 23 June 2031. The earliest date that he will be eligible for release on parole is 16 January 2026. 8The applicant seeks leave to appeal against that sentence upon the following grounds: