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Court of Criminal Appeal 16 February 2001

R v Symiziris

[2001] NSWCCA 38

Theft & property

Citation: Symiziris v R [2001] NSWCCA 38
Court: NSW Court of Criminal Appeal
Date: 16 February 2001
Judge(s): James J, Whealy J

Background

The applicant pleaded guilty on 30 August 1999 to one count of robbery, arising from an incident at a Marrickville video store in June 1996 in which he demanded and received $600 from a store employee. A Form 1 matter for receiving stolen goods was also taken into account at sentence. There was a significant delay between the commission of the offence and sentencing, during which the applicant complied with ongoing bail conditions.

On 12 October 1999, the District Court sentenced the applicant to a fixed term of two years imprisonment, rather than imposing a minimum term and an additional term. The sentencing judge relied in part on the pre-sentence report as indicating that the applicant would not benefit from post-release supervision.

The applicant sought leave to appeal against sentence, contending that the sentencing judge erred in imposing a fixed term rather than a structured sentence with a minimum (non-parole) period and an additional term available for supervised release.

  • Whether the sentencing judge erred in imposing a fixed term of imprisonment rather than a minimum term and an additional term under s 6(2) of the Sentencing Act 1989
  • Whether the sentencing judge misread or misunderstood the pre-sentence report when concluding that the applicant would not benefit from supervision upon release
  • Whether special circumstances existed justifying a non-parole period that was disproportionately shorter than the total sentence

Decision

Whealy J, with whom James J agreed, found that the sentencing judge had misread the pre-sentence report. The passage cited by the judge, which stated that a recognisance with supervision was not of benefit given the applicant's family supports, referred to a community-based sentencing option, not to the value of post-release supervision following a custodial sentence. Properly read, the report indicated the applicant was suitable for a non-custodial order and did not suggest he was unsuitable for supervised release.

The Court confirmed that the predominant purpose of an additional term is to support rehabilitation through conditional freedom following the minimum term. A fixed term is reserved for cases such as serious, persistent recidivists unlikely to benefit from supervision, or persons so unlikely to reoffend that supervision is unnecessary. The applicant fell into neither category. His criminal history was modest, the robbery itself was unexceptional in terms of violence or sophistication, and he had made genuine efforts at rehabilitation.

Finding that the applicant was entitled to a structured sentence, the Court intervened under s 6(3) of the Criminal Appeal Act and resentenced him. Special circumstances were found, based on the fact that this was the applicant's first significant period of custody, the lengthy delay between offence and sentence, and his sustained compliance with bail reporting conditions over a prolonged period. Those special circumstances justified a non-parole period shorter than the statutory default proportion of the total term.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence allowed
  • Sentence imposed by English DCJ on 12 October 1999 quashed
  • In substitution, sentence of 24 months imprisonment imposed, commencing 12 October 1999, with a non-parole period commencing 12 October 1999 and expiring 16 February 2001 (the date of the appeal judgment), entitling the applicant to immediate release

Key Takeaways

  • A sentencing court may only impose a fixed term under s 6(2) of the Sentencing Act 1989 where a proper statutory basis exists, such as where the offender is a serious recidivist unlikely to benefit from supervision, or where supervision is plainly unnecessary given an extremely low risk of reoffending.
  • Misreading a pre-sentence report to conclude that an offender will not benefit from post-release supervision, when the report said no such thing in context, constitutes an error capable of vitiating a sentence on appeal.
  • The Court of Criminal Appeal confirmed that the primary purpose of an additional term is to provide for rehabilitation through conditional freedom once a minimum term has been served, following Power v The Queen (1974) 131 CLR 623.
  • Special circumstances justifying a longer-than-usual additional term can include a first significant period of custody, substantial delay between offence and sentence, and prolonged compliance with bail conditions.
  • Where a fixed term is quashed on appeal, the Court of Criminal Appeal is required to pass the warranted sentence in substitution under s 6(3) of the Criminal Appeal Act, regardless of whether the replacement sentence is more or less severe.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), s 6(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act (NSW), s 6(3)

Cases:
- Power v The Queen (1974) 131 CLR 623
- R v Levy (NSWCCA, 20 February 1992, unreported)
- R v Farroukh (NSWCCA, 29 March 1996, unreported)