Citation: [1999] NSWCCA 58
Court: NSW Court of Criminal Appeal
Date: 10 March 1999
Judge(s): Simpson J; Smart AJ
Background
The applicant pleaded guilty in the Penrith District Court to stealing from the person under s 94 of the Crimes Act 1900, which carries a maximum penalty of fourteen years penal servitude. The offence arose from a bag-snatching at a Blacktown bank, where the applicant followed a mother and her four young children after observing her withdraw $700 from an ATM, then grabbed her bag. A brief struggle ensued involving the victim's children, and a knife fell from the applicant's pocket during the altercation, though the sentencing judge was not satisfied the applicant actively used it.
Judge Coleman in the District Court imposed a total sentence of five years, divided into a minimum term of three years and an additional term of two years, having found special circumstances under s 5 of the Sentencing Act 1989. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.
Legal Issues
- Whether evidence of the knife, and the sentencing judge's references to it, breached the principle in R v De Simoni (1987) 147 CLR 383 by effectively punishing the applicant for a more serious offence than the one to which he pleaded guilty
- Whether the total sentence of five years was manifestly excessive, having regard to the available sentencing range for s 94 offences
- Whether the minimum term was appropriate in light of the applicant's history of imprisonment, supervision, and prospects for rehabilitation
Decision
The Court addressed the knife issue first. The sentencing judge had twice explicitly stated he was not taking into account any use of the knife in the commission of the offence, and the Court of Criminal Appeal found no reason to look behind those statements. A passage in the remarks on sentence that described the knife falling from the applicant's pocket did not, on its proper reading, contradict those earlier stated intentions. The De Simoni grounds were therefore rejected.
On the question of manifest excess, the Court accepted that the total five-year sentence sat at the very upper end of the available range for this type of offence, but concluded it remained within range and should not be disturbed. Three aggravating features of the offence were identified: a degree of violence in the struggle, a degree of premeditation in surveilling the victim, and the involvement of the victim's children in the confrontation. The applicant's significant prior record, including convictions for robbery and related offences, meant he was entitled to no leniency.
However, the Court found that the minimum term warranted adjustment. The applicant had, following his release in 1995 from a prior lengthy sentence, remained conviction-free for approximately twelve months before reoffending. The Court concluded the evidence demonstrated he had benefited from supervision and would need further supervision upon release from this sentence. Those factors supported reducing the minimum term, with a corresponding increase to the additional term, while keeping the total sentence at five years.
Orders Made
- Leave to appeal granted
- Total sentence of five years confirmed
- Minimum term reduced to two and a half years, commencing 10 October 1997 and expiring 9 April 2000
- Additional term increased to two and a half years, commencing 10 April 2000 and expiring 9 October 2002
Key Takeaways
- The Court of Criminal Appeal confirmed that sentencing judges may admit evidence of a knife discovered during an offence without breaching the De Simoni principle, provided that evidence is used only for a permissible purpose (such as establishing premeditation) and the judge does not treat possession or use of the knife as an element of a more serious offence.
- Where a sentencing judge clearly and repeatedly states that a particular piece of evidence will not aggravate the sentence, the Court of Criminal Appeal will generally accept those statements at face value rather than drawing adverse inferences from their mere presence in the remarks on sentence.
- A five-year total sentence for stealing from the person under s 94 of the Crimes Act 1900, involving violence, premeditation, and an offender with a serious prior record, was held to be at the very upper limit of the available range but not manifestly excessive.
- In adjusting the minimum-to-additional-term ratio, the Court of Criminal Appeal treated evidence of an offender's prior responsiveness to supervision, and the likelihood of needing further supervision upon release, as sufficient grounds to reduce the minimum term while leaving the total sentence intact.
- Under s 5 of the Sentencing Act 1989, the additional term can be increased to reflect a greater need for post-release supervision, even where the total sentence is affirmed on appeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 94 and 97
- Sentencing Act 1989 (NSW), s 5
Cases:
- R v De Simoni (1987) 147 CLR 383