New South Wales Court of Criminal Appeal CITATION: R v Williams [2005] NSWCCA 48 HEARING DATE(S): 3 February 2005 JUDGMENT DATE: 25 February 2005 JUDGMENT OF: Studdert J at 1; Hulme J at 26 DECISION: Leave to appeal granted; appeal dismissed. LEGISLATION CITED: Crimes Act, ss 86, 198 R v Fernando (1992) 76 A Crim R 58 R v Greene [2001] NSWCCA 258 CASES CITED: R v Henry (1999) 46 NSWLR 346 R v Letteri (unreported, NSWCCA, 18 March 1993) PARTIES: Regina v Anthony Charles Williams FILE NUMBER(S): CCA 2004/1754 Ms E. Wilkins (Crown) COUNSEL: Mr A. McAvoy (Applicant) S. Kavanagh (Crown) SOLICITORS: Sydney Regional Aboriginal Corporation Legal Service (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/51/0137 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ IN THE COURT OF CRIMINAL APPEAL 2004/1754 STUDDERT J HULME J Friday 25 February 2005 REGINA v ANTHONY CHARLES WILLIAMS Judgment 1 STUDDERT J: The applicant, Anthony Charles Williams, seeks leave to appeal against sentences imposed by his Honour Judge Blackmore SC on 9 May 2003. Previously, on 28 October 2002, the applicant had pleaded guilty to two counts in an indictment: (i) the first count charged the offence of aggravated kidnapping; (ii) the second count charged the offence of attempting to murder by burning; (iii) and the third count charged the offence of malicious damage to property by fire with intent to endanger life. 2 The applicant pleaded guilty to the offences the subject of the first and the third counts, the third count being in the alternative to the second count. The Crown accepted the plea to the third count in full discharge of counts two and three. 3 The offence charged in the first count is in a category in respect of which s 86(2) of the Crimes Act imposes a maximum penalty of twenty years imprisonment. The third count is in a category for which s 198 of the Crimes Act imposes a maximum penalty of twenty-five years imprisonment. 4 The court was also asked to take into account three serious offences on a Form 1: (i) Maliciously damage property by fire; (ii) Aggravated break and enter and commit serious indictable offence (armed with offensive weapon); (iii) Aggravated break and enter and commit serious indictable offence (malicious damage, knowing a person was in the dwelling house). 5 The court was asked to consider these scheduled matters in conjunction with the offence under s 198 of the Crimes Act. The scheduled charges were part of the one related set of circumstances. They concern what occurred at 26 Jubilee Street, as recorded in the statement of facts hereunder. His Honour correctly directed himself that in taking into account those scheduled matters, it was appropriate that he do so with a view to increasing the sentence that might otherwise have been appropriate for the offence the subject of the third count. 6 The sentencing judge imposed sentences in respect of the two counts to be served concurrently. On the first count, the applicant was sentenced to imprisonment for four years, to date from 30 March 2002, the date of his arrest. In respect of the offence the subject of the third count, and taking the Form 1 matters into account, the applicant was sentenced to imprisonment for eight years to date from 30 March 2002 and to expire on 29 March 2010, with a non parole period of five years, to date from 30 March 2002, expiring on 29 March 2007. Thereupon the applicant was to become eligible for release on parole subject to supervision, in particular in relation to drug and alcohol rehabilitation. 7 The facts concerning the matters in respect of which his Honour was called upon to pass sentence are conveniently recorded in his Honour's remarks on sentence, and I observe in this respect that his Honour's remarks incorporate a statement of facts which was tendered before him on the hearing on sentence. There was no challenge to this statement. The relevant facts were these: "As at May 2002, the complainant, Natasha Randall, had known the offender for some five years. They became involved in a relationship with each other, and two children resulted from the relationship. In August 2001, the complainant determined that she would end the relationship. The offender did not take this decision particularly well, and whilst he was in gaol, the complainant started to receive threatening phone calls and letters from him. The offender was released from gaol on Saturday 23 March 2002, and went to see the complainant at her home at 9 Ridge Street, Illarwil, during that afternoon. He returned and stayed until the following day. He finally left on Sunday afternoon. The complainant then left the house on the following Tuesday to spend a few days in Port Macquarie. She returned to Maclean on Saturday morning 30 March 2002. As the bus drove along the High Street in Maclean, the complainant saw the offender sitting outside the doctor's surgery. When the complainant got off the bus, the offender and the complainant met, and a verbal argument ensued. As a result of some colourful language used by both of those parties, a police officer told them to move along. The argument therefore proceeded along the street to a tobacco shop. The offender continued to plead with the complainant to have them recommence their relationship. That was interrupted by the arrival of an aunt named Judy Randall. At that stage, the victim and the aunt then met up with a friend and walked to the bowling club where they stayed for a while. Some time later, the offender walked in to the club and had another argument with the victim. He was ejected and sat outside. Whilst the victim was inside the club, she was receiving reports from friends that the offender was outside waiting for her. The police were again called and an officer spoke to the offender at that time. Some time later, the offender appeared again at the club, on this occasion in the company of his two children. A further argument ensued between the offender and the victim, during which the offender said that he would look after the children. The police were again called and the victim took the children into the club amid threats from the offender. Some time after 6pm that night, the complainant decided to go to her cousin's home in Jubilee Street at Hillcrest. Her cousin's name was Tanya Randall. At about 7pm, the offender attended the Maclean police station and spoke to Senior Constable Patterson about seeing his children. Senior Constable Patterson rang the victim and the offender spoke to her. The offender was getting more upset and agitated and angry and said to Senior Constable Patterson, 'Will you drive me up to the hospital, I need to get some help? I'm getting really angry and I'm going to do something silly.' The police took the offender to the Maclean Hospital where he was then given some Valium. As the offender continued to make threats towards the victim during the trip back to the police station, Senior Constable Patterson applied for a telephone interim apprehended violence order. Senior Constable Patterson served and explained the order on the offender at 9.05pm that night. When told that the victim had left town, the offender replied 'It doesn't matter where she goes, I will get her. All I have to do is go to Social Security and they will tell me where she is because she will have my kids with her and I'll get her then.' I pause to note that on the offender's account, that last conversation is something that he has no recollection about. He indicates that after he took the Valium at the hospital, he cannot remember anything until he woke up the next day. The facts continue. The police advised the complainant that an interim order had been obtained. The victim stated that the offender had called and said he would not come up to where she was that night. She stated that she believed him and decided to stay where she was for the night. A few hours later at about 11pm, the victim was sitting in the lounge room with Tanya Randall when she heard a noise. It was the offender and he asked her to let him into the house so they could talk. The victim refused him entry at that time and became concerned when she heard something banging against the bricks outside. The victim went to ring the police and as she was doing so, the offender kicked in the front door. He went over to her with half a bottle of beer in each hand and held a broken piece of glass to her face and told her to get off the phone, and that he was going to kill her. He then pulled the cord from the wall. The offender grabbed the victim by the hair, telling her that he was going to slash her throat. As he did this, their son Adrian, aged two, came out, the victim tried to stall the offender and begged him not to do it in front of Adrian. The offender then dragged her outside, saying that she [was] going to die, and as they reached the boundary fence, he jabbed her with one of the bottles in the left arm. The offender climbed through a hole in the fence and told the victim to follow him, threatened that if she did not, he would kill her in front of everyone. She did as she was told and the offender jabbed her on the arm again with a broken bottle. The offender walked the complainant towards bushland, but then released her and started walking in front of her. She quickly turned around and retreated to the house next door to Tanya Randall's address, that is the address of 26 Jubilee Street. The proprietor of that address was not home at the time. The victim gained access through an unlocked door that had a chair up against it on the inside, and she then placed the chair back in its original position. The offender pursued the victim and she heard him kicking at the door through which she had entered. She then saw the offender enter the house by breaking the lounge room window and she then ran into the bathroom, locking the door. Once in the bathroom, the victim placed a towel to her face to stifle the noise of her breathing. The offender searched all the rooms in the house and then started kicking the bathroom door. Some time later the kicking stopped, and the victim heard the offender in the laundry outside the bathroom. He asked her if she could smell petrol, and the victim looked around to see a liquid seeping underneath the bathroom door. On taking the towel from her face, she also smelt petrol. The offender told the victim that if she did not come out, he would burn her alive, and she saw some flames coming up the inside of the door from underneath it. Notwithstanding the threat, the victim remained where she was and suggested to the offender that he was in possession of a knife with which to stab her. The offender denied that. He smashed the bathroom window and poured some petrol in through it. As there was smoke in the room, the victim started choking, and although the bathroom door was burning, she opened it to get some air. Once again the offender threatened to burn the victim alive if she did not come out. The victim watched the offender lift up a box of matches up to the window. She then saw him light a match and throw it in. The petrol that was then on the bathroom floor and walls did not light. The victim then ran out through the bathroom door and escaped from the house. As she ran up the road, she saw the lights of a police vehicle and she ran to it. The offender was following her with a piece of wood raised above his head. He was told to put it down, but he maintained his original stance, which was then aimed at police. The offender was subdued by the use of capsicum spray. He was then arrested and placed in the police wagon. He continued to yell threats that he would cut the complainant's throat on his release from custody. The offender was conveyed to the police station at Maclean where he was offered the opportunity to participate in an interview to be conducted by way of electronic recording. He declined and was then formally charged with a number of matters. The victim was treated at the Maclean Hospital for smoke inhalation and superficial lacerations. Although the fire brigade was initially informed by police of the fire at 16 Jubilee Street and that it had been extinguished, they were required to attend the house a couple of hours later as the fire had continued to burn. Fire officers observed a fair amount of smoke and damage, and a fair bit of heat and smoke damage to the wooden bathroom door and toilet door. They concluded that an accelerant had been used and that the seat of the fire was outside the bathroom door. The following morning, the victim returned to her home on Ridge Street. On her front door was pinned a note, 'You are going to be one sorry girl when I find you dog.' On entering the house, the victim found that it had been ransacked and a number of items were missing. In the backyard were the remnants of a fire and the victim saw that various items belonging to her, a man by the name of Peter Vinnia and his daughter had been burnt. These items included Mr Vinnia's four year old daughter's asthma machine, asthma and medical books and all the toys and clothes from the house. A neighbour called Tabitha Child told police that on Wednesday 27 March 2002, she had seen the offender dragging those items from the house and setting fire to them in the backyard. Police then attended the scene in the company of the victim and video taped the interior of the house and the backyard." 8 His Honour correctly described the objective circumstances as being very serious indeed. 9 The applicant was born on 23 October 1968, so that at the time of sentence he was thirty-four years of age. He has a formidable criminal history, including, but not limited to, the following matters: "(i) Assault female and break enter and steal in July, 1989. On the break enter and steal charge the applicant was sentenced to three months hard labour; (ii) Assault Occasioning Actual Bodily Harm in June 1990; (iii) Assault Occasioning Actual Bodily Harm in December 1991; (iv) Assault (domestic violence) in September 1992; (v) Assault Occasioning Actual Bodily Harm (2) in March 1995. On each charge a sentence of 6 months imprisonment was imposed. There were also 2 assault charges at that time in respect of each of which concurrent fixed terms of 3 months were imposed; (vi) Break enter and steal February, 1996 (1 month imprisonment) (vii) Assault Occasioning Actual Bodily Harm in February 1999 at Grafton. Initially 9 months periodic detention was imposed. That was cancelled and a sentence of 9 months imprisonment was imposed with a parole period of 6 months and 27 days; and (viii) Assault also in February, 1999 at Grafton. Initially 3 months periodic detention was imposed. That was cancelled and a fixed term of 17 weeks imprisonment was imposed." 10 The sentencing judge had before him a report of a psychologist, Mr Roland, and his Honour described that as a detailed and helpful report which set out matters of background which the applicant affirmed in evidence in those sentencing proceedings. The applicant is an Aboriginal man who was brought up around Wilcannia. His family was affected by the consumption of alcohol and the environment was one in which violence was common. The applicant is able to read and write, but his education was limited, ceasing at the age of twelve. After that he worked on country properties. 11 The applicant and Natasha Randall had two sons, aged four and two at the time of sentencing. It appears that the serious problems between the applicant and the victim occurred after Ms Randall indicated she no longer was prepared to continue in the relationship, as is disclosed in the above statement of facts. 12 Returning to the report of the psychologist, Mr Roland, it was that expert's opinion: "It is evidence from Mr Williams' history that he comes from a severely disadvantaged background. It appears that he has been raised in a family environment in which it has been the norm to be exposed to emotional trauma and domestic violence, as well as to drinking in excess. It appeared Mr Williams has been a heavy drinker for most of his adult life, it appears this has been part of a pattern involving work and drinking, and associating with other males. It appears Mr Williams is somewhat of a loner, enjoying his own company or the company of those with whom he is very familiar. It appears alcohol helps him to socialise with others. It appears Mr Williams, based on his own account, has been the happiest in recent times when living with Natasha and their children. It appears, therefore, that the separation from Natasha and the children during his last period of incarceration was very hard for him. It appears that Mr Williams has a difficulty in maintaining healthy, stable relationships with women. The entries in Mr Williams's diary, I pause to note, those which were made whilst he was in custody, indicate that he was experiencing a great deal of anger towards Natasha, and apparently also towards her new boyfriend. According to Mr Williams, his written intentions to harm Natasha and her boyfriend were not something he wished to act upon, but was his way of dramatically expressing his feelings about the circumstances. At the very least, these diary entries indicate anger by Mr Williams towards Natasha. It is unsurprising, therefore, that when intoxicated, he acted on those intentions. Alcohol is a disinhibitor in the terms of behaviour. This means the intoxicated person is more likely to carry out actions they would normally have exercised self control over. My belief therefore is that Mr Williams had some intention of being aggressive towards Natasha. Whether this was to be verbal or physical in nature, I cannot say with confidence." 13 The applicant was given a twenty-five percent discount by reason of the pleas mentioned above, and for the purposes of structuring the sentences, and in particular the longer sentence, the judge found special circumstances. 14 Mr McAvoy of counsel, in his comprehensive written submissions, raised five matters which, in summary, were as follows: (i) that the sentencing judge gave insufficient weight to the report of Dr Weatherby; (ii) that there was an error in the interpretation of that report; (iii) that insufficient weight was given to the effect of the Valium ingested by the applicant; (iv) that insufficient weight was given by the judge to the circumstance that the applicant had sought the assistance of the police and the hospital and that he was given Valium at the hospital, which exacerbated his condition; (v) that there was error in the approach taken to the consideration of deterrence. 15 Grounds (i) to (iv) are related, as Mr McAvoy acknowledged in his oral submissions. In summary, the submission is made that the applicant controlled his aggressive tendencies until he went to the police station to seek help. This call for assistance led to the hospital visit where Valium was prescribed. The ingestion of that Valium had a causative role in the subsequent events and the sentence imposed did not make due allowance for this chain of events. 16 I am not persuaded that the sentencing judge misinterpreted Dr Weatherby's report in any material respect, and certainly his Honour was aware of the circumstances in which the applicant ingested Valium. He made findings favourable to the applicant in his remarks on sentence in passages to which I shall later refer. 17 As to Dr Weatherby, his Honour said (ROS 10): "I have some difficulty in accepting the opinions of Doctor Robert Weatherby because a crucial part of his evidence relies on the offender withdrawing from the consumption of cocaine. In the witness box, the offender strenuously denied ever taking that drug. In those circumstances, much of the opinion of Doctor Weatherby is not supported by the evidence. However, in a more general sense, Doctor Weatherby's opinions conformed with those of the Crown's expert to the effect that alcohol and Valium consumption, when taken in combination, reduce inhibitions and may even result in some irrational behaviour." 18 I find no error in the above observations. The Crown expert referred to is Dr Perl, who expressed the opinion that the combination of alcohol and Valium could have resulted in the disinhibition of the applicant, but Dr Perl's view was that the major contributing factor was the alcohol, pointing out that the applicant had made repeated threats "at various stages during the day, and at various blood alcohol concentrations" (see conclusion of report of 5 May 2003). Moreover, Dr Perl observed in an earlier report of 23 October 2002 that the applicant was aware of his actions and in this regard wrote: "Even after the ingestion of the Valium he appears to have been aware of his actions (as indicated by what he said whilst in the Police vehicle and his phone conversation in the presence of S/C Ruehe). Even after ingestion of the Valium he maintained he wanted to see his kids and indicated he would get at Ms Randal as he had indicated prior to the ingestion of the Valium. In addition, S/C Ruehe noted the Accused spoke clearly and coherently, with good recollection of his actions. Since the effects of Valium generally last several hours after ingestion, there appears to be no indication that he was affected by Valium at 11.50 pm." 19 His Honour expressly considered the impact of the Valium upon the applicant, as appears from these passages of the sentencing remarks: (ROS 9) "As noted, the objective facts are serious indeed. One issue that arose on the sentencing proceedings related to the extent to which the offender was intoxicated by alcohol and/or drugs at the time of the offence. Self ingestion of drugs and alcohol to deliberately fuel anger is an aggravating, not mitigating feature of an offence. However, I am satisfied after hearing evidence that that is not what occurred in this case. The evidence in that regard is fairly strongly in favour of the offender. After he had consumed alcohol, he went to the police seeking their assistance to see his children. When that was unsuccessful, he indicated that he might do something silly, and asked the police to take him to the hospital. At the hospital, he was given four Valium tablets which he then consumed. That was probably not the appropriate way to treat this particular man, given the agitation that was observed at the police station and later in the hospital…" And later (ROS 12-13): "Returning to the issue of the consumption of Valium, I am satisfied, having regard to my findings of fact, that that matter can operate as a mitigating factor in the sentence of the offender. In my view, that is because the consumption of those drugs reduced his inhibitions and allowed him to freely express, in a violent way, his anger towards the victim. Had he not consumed those things, he may not have acted as violently towards her as he did on that night. Having said that, there is no doubt in my mind that what he did was an accurate reflection of how he intended to act. The effect the drug may have had, in particular, was by reducing the natural reasoning and restraining processes that he may otherwise have undertaken in order to assess whether he was doing the right thing. The drugs were given to him by the hospital and he cannot be blamed for taking them. It is for that reason that the matter can, in my view, be regarded as a factor mitigating these particular offences." 20 The findings in the above passages were findings open to his Honour on the evidence. 21 I detect no error in the above approach to the difficult sentencing task his Honour faced, and I am not persuaded that any of the four grounds has been established. For completion, I observe that before the commission of these offences the applicant kept a diary in which there are a number of entries expressing intentions of harming the victim. For instance, on 14 March 2002, nine days before his release from custody, the applicant wrote in his diary: "I am going to bash her so much." 22 Turning to ground (v), the submission was that too much weight was given to deterrence, particularly having regard to the circumstance of the ingestion of Valium and its significance. In R v Greene [2001] NSWCCA 258 Howie J (at para 16) referred to general deterrence as "a significant matter…because of the prevalence of violence by men against women in domestic relationships", and in the present case reference was made to that authority when the sentencing judge referred to the need to pay particular regard to general deterrence. However, Mr McAvoy submitted that was not an appropriate approach here "having regard to the impact of the Valium". He cited R v Letteri (unreported, NSWCCA, 18 March 1993) and R v Henry (1999) 46 NSWLR 346. 23 The statements of principle relied upon by Mr McAvoy are conveniently found in what Wood CJ at CL said in Henry (at paras 253-254): "253 The relevant principle as stated in Letteri by Badgery-Parker J, in a passage adopted by Gleeson CJ in Engert is as follows: '… that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise.' 254 The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice." 24 In my opinion, on the findings of fact available to the sentencing judge and made by him, the principles found in the above passages from Letteri and Henry are not enlivened in the present case. The judge made allowance for the circumstances in which the Valium was ingested and for the circumstance that the ingestion impacted upon his inhibitions. Nevertheless, this was not a case of a crime committed by an offender suffering from a mental disorder which affected his control. Rather, it was a case of an offender who acted, after drinking to excess, to give effect to intentions expressed before Valium was taken and the Valium ingested was of limited significance, as reflected in the findings expressed by the sentencing judge and referred to above. 25 Express reference was made in the sentencing remarks to R v Fernando (1992) 76 A Crim R 58, and the judge stated that he had regard to the relevant factors identified in that much cited case. I detect no error of approach in the lengthy sentencing remarks in this case, and in my view, having regard to the serious nature of the crimes committed by the applicant, the sentences imposed upon him were entirely appropriate. Accordingly, I would grant leave to appeal but propose that the appeal be dismissed. 26 HULME J: I agree with the orders proposed by Studdert J and with his Honour's reasons. I would add only this. 27 The Applicant was fairly entitled to have taken into account as matters operating by way of significant mitigation of punishment his request to the police for help and the probable effects of valium upon him. That he obtained such benefit is apparent from Judge Blackmore's remarks on sentence. 28 The Applicant's difficulty in this appeal lies in the seriousness of his offending. It was so grave that even after allowance was made for all matters going in mitigation a heavy sentence was required. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.