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Court of Criminal Appeal 15 September 1999

R v SIMON

[1999] NSWCCA 418

Assault & violenceTheft & propertyTraffic & drivingPublic order & justice offences

Citation: R v Simon [1999] NSWCCA 418
Court: New South Wales Court of Criminal Appeal
Date: 15 September 1999
Judge(s): Wood CJ at CL, Simpson J

Background

The applicant, a 23-year-old Aboriginal man with a significant criminal history, sought leave to appeal a series of sentences imposed by Judge Mitchelmore in the District Court on 20 September 1996. The offences were committed in late December 1995 and early January 1996, while the applicant was an inmate at the Industrial Training Centre, Long Bay.

The applicant first escaped lawful custody on 31 December 1995. He then committed a cluster of further offences on the evening of 5 to 6 January 1996, including stealing a motor vehicle, breaking into another vehicle, possessing implements for entering a conveyance, stealing from a person (bag snatching), and using the stolen vehicle as an offensive weapon to avoid apprehension by two police officers.

The District Court sentenced the applicant to a total effective term of eight years, with a minimum term of six years, for the most serious charge of using an offensive weapon to avoid lawful apprehension. All sentences except that for the escape charge were ordered to commence concurrently from 6 January 1996. The appeal was brought out of time, with no objection from the Crown.

  • Whether the overall sentences, particularly the eight-year term for using an offensive weapon to avoid lawful apprehension under s 33B of the Crimes Act 1900, were manifestly excessive
  • Whether the commencement dates of the sentences, particularly for the escape charge, were correctly calculated
  • Whether special circumstances existed to justify departure from the statutory one-third ratio between minimum and additional terms under s 5(2) of the sentencing legislation
  • Whether post-sentence rehabilitation conduct warranted consideration on resentencing

Decision

Simpson J (with Wood CJ at CL agreeing) concluded that the sentencing judge's primary focus on the principle of totality was correct and that no overt legal error was disclosed in the sentencing remarks. The overall criminality, viewed as a whole, did not attract an excessive total term.

However, the court identified error in the structure of the sentences and the commencement dates, particularly in relation to the escape charge. The date specified for that sentence to commence (24 May 1998) was incorrect, and the court determined it should have been 30 May 1998, the date on which the minimum term of the pre-existing sentence expired. When the sentences were properly restructured with corrected commencement dates, the individual terms for stealing from a person and using an offensive weapon were found to be excessive, even though the overall sentence length was not.

Having identified error sufficient to warrant resentencing, the court considered material tendered for that purpose. That material disclosed a commendable and sustained course of rehabilitation since incarceration. The court found this, combined with the accumulation of sentences, constituted special circumstances justifying departure from the statutory ratio, resulting in a longer additional term relative to the minimum term than the statute would otherwise require.

Orders Made

  • Leave to appeal granted; appeal allowed; applicant resentenced
  • Count 1 (escape lawful custody): fixed term of 12 months' penal servitude commencing 31 May 1998, expiring 30 May 1999
  • Counts 2 to 5 (stealing motor vehicle, possession of implements, malicious damage, larceny): identical fixed term of 12 months commencing 31 May 1998, expiring 30 May 1999
  • Count 6 (stealing from a person): fixed term of 2.5 years' penal servitude commencing 31 May 1998, expiring 30 November 2000
  • Count 7 (using offensive weapon to avoid apprehension): total term of 5.5 years' penal servitude commencing 31 May 1998, comprising a minimum term of 2.5 years (expiring 30 November 2000) and an additional term expiring 30 November 2003

Key Takeaways

  • The Court of Criminal Appeal confirmed that where individual sentences are structured with incorrect commencement dates, error is established even if no overt legal error appears in the sentencing remarks themselves, entitling the court to resentence.
  • Under s 34(2) of the Correctional Centres Act 1952, a sentence for escape from lawful custody must be imposed cumulatively upon all existing sentences, meaning the commencement date is tied to the expiry of the existing minimum term.
  • A finding of manifest excess in individual sentences can coexist with a conclusion that the overall total term is not excessive, and restructuring on appeal may reduce individual components without altering the aggregate result.
  • Evidence of genuine and sustained post-sentence rehabilitation is a legitimate consideration on resentencing, and may combine with the accumulation of sentences to constitute special circumstances justifying departure from the statutory minimum-to-additional term ratio.
  • In applying the totality principle to a series of concurrent sentences, the sentencing court's focus on the overall criminality rather than each offence in isolation was endorsed as the correct approach.

Legislation and Cases Referenced

Legislation:
- Correctional Centres Act 1952 (NSW), s 34(2)
- Crimes Act 1900 (NSW), ss 33B, 95, 117, 145, 154A, 195

Cases:
- R v Fernando (1992) 76 A Crim R 58
- R v Perez (unreported, NSWCCA, 11 December 1991)
- R v Hamilton (1993) 66 A Crim R 575
- R v Church (unreported, NSWCCA, 6 November 1998)
- R v Bell (unreported, NSWCCA, 29 September 1997)