Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Braedon WILLIAMS v R [2013] NSWCCA 15
• Hearing dates: 26 September 2012
• Decision date: 08 February 2013
• Before: McClellan CJ at CL at [1]; Hidden J at [2]; Adamson J at [31]

Decision

Leave to appeal granted, appeal dismissed.

• Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - aggravated break, enter and steal - co-offenders - parity/proportionality - quasi-custody - whether reduction of sentence required in anticipation of residential rehabilitation
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Crimes (Administration of Sentences) Act 1999
• Cases Cited: - Renshaw v R [2012] CCA 91; - R v Campbell [1999] NSWCCA 76; - Muldrock v The Queen [2011] HCA 39, 244 CLR 120; - Ng v R [2011] NSWCCA 227, 214 A Crim R 191
• Category: Principal judgment
• Parties: Braedon Kane Williams (applicant); Regina (respondent Crown)
• Representation: Counsel: A Francis (applicant); P Ingram SC (respondent Crown); Solicitors: Nyman Gibson Stewart (applicant); S Kavanagh - Solicitor for Public Prosecutions (respondent Crown)
• File Number(s): 2011/47638

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2011-09-02 00:00:00
• Before: Blackmore DCJ
• File Number(s): 2011/47638

Judgment

1 McCLELLAN CJ at CL: I agree with Hidden J.

2 HIDDEN J: The applicant, Braedon Kane Williams, pleaded guilty in the District Court to aggravated break, enter and steal, an offence under s 112(2) of the Crimes Act 1900 which carries a maximum sentence of 20 years imprisonment and a standard non-parole period of 5 years. He asked that a further offence of the same kind be taken into account on a Form 1. Blackmore DCJ, taking the Form 1 matter into account, sentenced him to imprisonment for 4 years, comprising a non-parole period of 2 years and 9 months, commencing on 12 February 2011, and a balance of term of 1 year and 3 months. He seeks leave to appeal against that sentence.

3 The grounds of the application are such that it is not necessary to examine the facts of the offences or the applicant's subjective case in detail. The two offences were committed in the early hours of 12 February 2011 in the Albury area. Each offence was committed in the company of two co-offenders, Nathan Sullivan and Eric Dwayne Williams. Eric Williams is not related to the applicant. In the principal offence a Caltex Service Station was broken into and cigarettes of a value in excess of $2,600 were stolen. Roller doors to the premises were damaged in the process. The Form 1 offence was a break-in at an IGA Supermarket, where alcohol of a value of a little over $770 was stolen.

4 The applicant was 22 years old at the time of the offences, and 23 at the time he was sentenced. He is now 24. He has a substantial criminal record. A pre-sentence report before Judge Blackmore disclosed a disturbed upbringing. He had limited education and a minimal employment history. He developed a major problem of substance abuse, particularly alcohol. Nevertheless, his Honour characterised the report as "reasonably positive", but noted that it was clear from the report that the applicant needed "firm direction in order to change."

5 The author of the pre-sentence report recommended that the sentencing court should order that the applicant "enter a residential rehabilitation program for drug and alcohol addiction directly from custody so that there is no opportunity for him to relapse or to further delay that entry and direct that he is not to discharge himself from the program without the prior permission of his supervising officer." His Honour adopted that recommendation. After setting the non-parole period, he said:

"I recommend your release to parole. That recommendation is subject to the condition that the offender be placed in a full-time drug rehabilitation course directly from custody. Parole should not be granted to this offender to be at large. Once in that course, it will amount to a breach of parole if the offender leaves the course for any reason."

Co-offenders

6 At the time he sentenced the applicant, Judge Blackmore also dealt with Nathan Sullivan. Sullivan pleaded guilty to both offences. He was sentenced to partly cumulative terms of imprisonment aggregating 4 years with an effective non-parole period of 3 years. Sullivan is about 2 ½ years younger than the applicant. He also had a substantial criminal history. His pre-sentence report was unfavourable, and his Honour described his prospects of rehabilitation as "negligible." He was subject to what his Honour described as "a number of forms of conditional liberty", which included a parole order, at the time of the offences.

7 Eric Williams was dealt with later by Frearson DCJ. Like the applicant, he pleaded guilty to the offence at the service station and had the offence at the supermarket taken into account on a Form 1. He received a suspended sentence of imprisonment for 2 years. He is about 16 months older than the applicant. He also had a significant criminal history, and he was subject to a 15 month suspended sentence for affray at the time of these offences.

8 However, having been in custody for about 3 months upon his arrest on 12 February 2011, he had been released on bail and had undergone a residential rehabilitation program for 12 months at a facility in Victoria called Granya House. He had aquitted himself well at that program, and Judge Frearson treated that period as a form of quasi-custody which entitled him to an additional measure of leniency. I shall refer to that principle when dealing with the first ground of this application. His Honour found that he was remorseful, that he had made "excellent progress towards rehabilitation," and that he was "unlikely to re-offend in this way." Whilst mindful of the sentences passed on the applicant and Sullivan, he saw the case of Eric Williams as "one of the rare cases" where an offender appeared to have changed his life and where rehabilitation "should receive more emphasis than in other cases."

9 Judge Frearson also dealt with the suspended sentence, revoking the bond and directing that Eric Williams serve the 15 month prison term. However, he fixed a non-parole period of 3 months dating from 12 February 2011, which had effectively been served by the period the offender had been in custody before his release on bail.

The application

10 Counsel for the applicant, Mr Brady, argued the application on two grounds:

(1) The sentence failed to take into account the quasi-custody of the residential rehabilitation directed by his Honour.

(2) A comparison of the applicant's sentence to those imposed upon his co-offenders gave rise to a justifiable sense of grievance.

Quasi-custody

11 I have referred to what was effectively a direction by Judge Blackmore that, if the applicant were granted parole, he should be placed immediately into a full-time drug rehabilitation program and should not be permitted to be at large. There was evidence, to which his Honour did not expressly refer, that a position might be available to the applicant in the well known rehabilitation program conducted by Odyssey House. A letter from that organisation disclosed that it was willing to "induct" the applicant into the program "as soon as practicable", and that the program would be "of some 12 months duration." There was also a letter from Granya House offering him a position on a specified date while he was awaiting sentence if he were released on bail. The letter did not disclose the length of the program. He remained in custody and that opportunity was not available to him. Mr Brady submitted that a rehabilitation program of that kind would amount to a form of quasi-custody which should have been taken into account, but his Honour failed to do so.

12 That it is appropriate for an offender to be given credit on sentence for having undergone a full-time residential rehabilitation program is not in doubt. Mr Brady referred us to the recent decision of this court in Renshaw v R [2012] CCA 91, in which the principle was re-stated, with reference to relevant authority, by Hoeben JA at [28] - [32]. Among the cases referred to by Hoeben JA was R v Campbell [1999] NSWCCA 76, in which Kirby J noted that in earlier cases credit had been allowed for 50% or even 75% of the time spent in rehabilitation.

13 Two difficulties confront this submission. The first is that, while it was open to his Honour to recommend conditions of a parole, he had no power to direct them. Plainly enough, this is what he purported to do. It is entirely understandable that his Honour took that course, given that it had been recommended by the Probation and Parole officer who prepared the pre-sentence report and the representatives of the Crown and the applicant before his Honour (who did not appear in this court) did not address the question whether he had the power to do so.

14 By s 50(1) of the Crimes (Sentencing Procedure) Act 1999, a court imposing a sentence of 3 years or less must, if a non-parole period is specified, order that the offender be released on the expiration of that non-parole period. In that event, s 51 empowers the court to impose conditions on that parole order. That regime, however, is confined to sentences of 3 years or less. Where the sentence is in excess of 3 years, the court cannot direct the release of an offender at the expiration of a non-parole period and cannot impose conditions upon any parole order which might be made. In that situation, whether a parole order is made and, if so, what conditions are imposed upon it are matters for the Parole Authority, not the sentencing court: see ss 134 - 135 of the Crimes (Administration of Sentences) Act 1999 and Muldrock v The Queen [2011] HCA 39, 244 CLR 120, at [4].

15 The second difficulty is that in Renshaw, and the earlier cases referred to by Hoeben JA, the offender had completed a rehabilitation program before sentence was passed. Not only was the sentencing court able to assess the benefit of the program, it was able to be informed of the conditions of it and, in particular, the discipline which it imposed upon the offender. We were not referred to any authority in which consideration was given to the extension of leniency on this basis in anticipation of an offender undertaking rehabilitation.

16 All this Mr Brady acknowledged. Nevertheless, he submitted that an allowance for prospective quasi-custody should have been made. In the light of the evidence of the 12 month program at Odyssey House, he contended for a reduction of sentence of the order of 6 months. (He noted that the program undertaken by Eric Williams at Granya House was also for 12 months.) He argued that, in the light of what Judge Blackmore had to say, coupled with the recommendation of the author of the pre-sentence report, it was most likely that the applicant would not be released to parole except to undertake a course of residential rehabilitation and would not be allowed to be at large until he had completed it.

17 That may be so, but it cannot be predicted with any certainty. Whether a place at Odyssey House, Granya House or any other program would be available when the applicant becomes eligible for parole is unknown. Equally, whether it would be necessary or desirable for him to undertake such a program would fall to be determined at that time. These are matters exclusively within the province of the Parole Authority, to be determined by it when the applicant becomes eligible for release. Recommendations to the authority by a sentencing court are no more than that, and they may or may not be acted upon.

18 In these circumstances, I am not persuaded that an allowance for quasi-custody was called for. In this context there is another matter raised by the Crown prosecutor in this court which is worthy of note. Judge Blackmore said of both the applicant and Sullivan that, in the absence of pleas of guilty, he would have imposed a total sentence on each of them of 6 years and 6 months. This he reduced by 25% in recognition of the utilitarian value of the pleas. That reduction would produce a sentence, in round figures, of 4 years and 10 months. His Honour reduced that term further so as to impose a 4 year sentence on both men. He said that he did so "in the hope that some initial consideration might lead to a change in these young men, particularly in the case of Mr Sullivan." He noted that Sullivan was "still a young man and a lengthy sentence would be particularly difficult for him."

19 It is clear that that further reduction of 10 months was not in recognition of quasi-custody in the applicant's case because his Honour extended the same benefit to Sullivan, for whom a residential rehabilitation program was not in prospect. It means no more than that his Honour extended additional leniency to both men in the light of their youth and in the hope of fostering their rehabilitation. However, it is a relevant matter in determining whether the lack of an allowance to the applicant for quasi-custody has caused the sentencing process to miscarry. I prefer to express no concluded view about whether a reduction of sentence for quasi-custody would ever be appropriate where an offender had the prospect of a rehabilitative program but has not yet undergone it. In the present case, however, I do not consider that such an allowance was required and I would reject this ground of the application.

Parity/proportionality

20 Mr Brady submitted that the relativity between the sentence passed upon the applicant and those passed upon Sullivan and Eric Williams was such as to engender in him a justifiable sense of grievance. He acknowledged that there was no relevant distinction between the involvement of the three men in the offences, and founded his argument on a comparison of their subjective cases.

21 He pointed out that the applicant and Sullivan received the same head sentence despite the fact that Sullivan was subject to more than one form of conditional liberty at the time of the offences and could not make out a subjective case as favourable as the applicant. While accepting that Sullivan was the younger of the two men, he noted Judge Blackmore's finding that the applicant showed some positive signs of rehabilitation whereas Sullivan's prospects of reform were bleak. Indeed, his Honour said in his remarks that Sullivan's case was "actually more serious" than the applicant's and that the offences were "committed whilst he was on conditional liberty." While the applicant's non-parole period was 3 months less than Sullivan's, Mr Brady argued that this was inadequate to mark the applicant's lesser criminality. In that regard he also relied upon his argument that the applicant, unlike Sullivan, would be likely to spend a significant proportion of his parole period in residential rehabilitation.

22 As to Eric Williams, Mr Brady acknowledged that at the time he was sentenced he made out a much more favourable subjective case than the applicant. This, he argued, was sufficiently reflected by Judge Frearson's order that the 2 year sentence be suspended. He focused upon the nominal term of 2 years, arguing that such a marked disparity between that sentence and the applicant's sentence could not be justified. He noted that Eric Williams was older than the applicant and that he had been on a bond associated with a suspended sentence at the time of the offences. Moreover, Judge Frearson dealt with the breach of that bond in such a way as to impose no further punishment upon him.

23 Mr Brady also pointed out that Judge Frearson, when considering the sentences passed upon the applicant and Sullivan, wrongly ascribed to the applicant the unfavourable subjective features which Judge Blackmore had found in Sullivan's case. That is so, but it is not material for present purposes. This court's task is to examine the evidence as it was and determine whether, viewed objectively, the applicant has been unfairly treated when regard is had to the sentence passed upon Eric Williams.

24 More than enough has been written by appellate courts on the subject of parity of sentence. A helpful review of the relevant principles is to be found in the recent decision of this court in Ng v R [2011] NSWCCA 227, 214 A Crim R 191 at [77] - [83]. It is appropriate to set out some passages from that judgment which are germane to the present case.

25 Relevantly to the complaint of a lack of proportionality between the applicant's sentence and the sentence imposed upon Sullivan, the court said at [77] - [78] (omitting references to authority):

"[77] There are significant advantages where related offenders are sentenced by the same judge, with remarks on sentence containing factual findings and conclusions concerning the relative criminality of the offenders and differing subjective features of each of them ... .

[78] Where the same judge sentences two offenders at the same time and gives detailed reasons for imposing the sentences, having regard to the differing criminality of each, the differing subjective circumstances and relevant sentencing principles, this Court should be cautious before determining that one of the offenders has a justifiable sense of grievance because of different sentencing outcomes ... ."

26 Relevantly to the applicant's complaint about his sentence in comparison with the sentences passed upon both co-offenders, the court said at [83]:

"A ground asserting disparity is concerned with such markedly and unjustifiably different sentences imposed on co-offenders that they give rise to a genuine feeling on the part of a reasonable and impartial observer that justice has not been achieved because one offender has been unfairly treated, having regard to the sentence passed upon the other offender."

27 What the court there said bears upon the issue of proportionality between the applicant's sentence and Sullivan's. Of course, their sentences are not "markedly" different. The complaint is not one of marked disparity, but rather the lack of it. The applicant contends that he was entitled to be treated significantly more leniently than Sullivan. As to Eric Williams, the complaint is one of marked disparity. Both complaints raise the same question, that is, whether a comparison of the offender's sentence with those imposed upon the co-offenders, viewed objectively, conveys that justice has not been done to him.

28 Dealing first with Sullivan's sentence, Judge Blackmore had the advantage of considering the cases of both men in the same proceeding. It is clear that he was mindful of Sullivan's less favourable subjective case, particularly his commission of the present offences while subject to conditional liberty. On the other hand, it is equally clear that he was particularly conscious of Sullivan's youth and was concerned to foster his rehabilitation, even though his prospects of reform were not encouraging. It would have been open to his Honour to reflect the different subjective cases of the two men by extending greater leniency to the applicant, but it does not appear to me that a marked difference of sentence was called for such as to warrant the intervention of this court.

29 The difference between the applicant's sentence and that imposed upon Eric Williams, of course, is marked. However, Judge Frearson was well aware of the sentences passed upon Sullivan and the applicant when he took the course he did, and he decided that a very different approach should be taken in Eric Williams' case. There was good reason for the measure of leniency which he extended. Despite his unfavourable criminal history and his breach of conditional liberty, that offender had undergone a course of residential rehabilitation and had turned his life around. It was clearly open to Judge Frearson to place particular emphasis upon rehabilitation and to treat the case as exceptional. In these circumstances, the difference in sentence between the two men does not establish that the applicant has been unfairly treated.

30 This ground also is not made out. I would grant leave to appeal but dismiss the appeal.

31 ADAMSON J: I agree with Hidden J.

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Decision last updated: 14 February 2013