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Court of Criminal Appeal 19 December 2001

REGINA v SIMPSON

[2001] NSWCCA 534

Also reported as (2001) 53 NSWLR 704 (2001) 126 A Crim R 525
Fraud & dishonesty
CRIMINAL LAW SENTENCING "SPECIAL CIRCUMSTANCES" CRIMINAL LAW SENTENCE APPEALS STATUTORY TRIGGER FOR RE

Citation: Regina v Simpson [2001] NSWCCA 534
Court: NSW Court of Criminal Appeal
Date: 19 December 2001
Judge(s): Spigelman CJ; Mason P; Grove J; Sully J; Newman AJ

Background

The applicant pleaded guilty in the Penrith District Court to seven counts of obtaining money by making a false statement under s 178BB of the Crimes Act 1900. He had defrauded three banks of between $140,000 and $220,000 by submitting loan applications under false identities supported by forged documents, over an extended and carefully planned scheme. He also asked the sentencing judge to take into account a further twenty-five similar offences on a Form 1.

The sentencing judge imposed fixed terms of two years for Counts 1 to 6, and for Count 7, a head sentence of three years and six months with a non-parole period of two years and seven months. The judge expressly found no "special circumstances" that would warrant departing from the statutory ratio between the non-parole period and the head sentence under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

The applicant sought leave to appeal against sentence. A question arose about whether a three-judge bench decision in R v Hameed had correctly stated the law on special circumstances, prompting the Court to reconstitute as a bench of five to resolve that and the remaining issues.

  • What is the proper scope of "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, and must a finding of special circumstances be based primarily on the desirability of extended parole supervision?
  • Is a sentencing judge required to give reasons for declining to vary the statutory proportion between the head sentence and the non-parole period?
  • What does s 6(3) of the Criminal Appeal Act 1912 require before an appellate court may quash a sentence and substitute another?

Decision

Special circumstances: The Court (unanimously) rejected the proposition that a finding of special circumstances must be grounded exclusively, or even primarily, on the desirability of extended parole supervision. The primary perspective when fixing a non-parole period is the minimum period of actual incarceration that justice requires. The full range of considerations relevant to that minimum period may also be relevant to the assessment of special circumstances. Section 44(2) operates as a fetter on the sentencing discretion: the sentencing judge must first identify the facts said to constitute special circumstances, and then exercise judgment about whether those facts justify departing from the statutory three-quarters proportion.

Sully J added a distinct analytical note, emphasising that the correct starting point is to determine the proper head sentence and non-parole period first. Only where that exercise produces a proportion below three-quarters does the question of special circumstances arise. His Honour also cautioned that relevant subjective factors and "special circumstances" are not synonyms. Each plays a discrete role in constructing a proper sentence, and subjective matters already factored into the head sentence and non-parole period cannot simply be recast as special circumstances to justify a further reduction.

Reasons for decision on special circumstances: The Court confirmed there is no legal obligation on a sentencing judge to give reasons for declining to vary the statutory relationship in s 44(2). The sentencing judge had expressly referred to special circumstances, and the Court found no error or ambiguity in his reasoning.

Sentence appeals under s 6(3): The majority held that s 6(3) of the Criminal Appeal Act 1912 requires an appellate court to form the opinion both that another sentence is "warranted in law" and that it "should have been passed" before substituting a different sentence. Identification of error at first instance remains a prerequisite. Sully J reached the same conclusion by reference to established Court of Criminal Appeal authority. All five judges agreed the original sentences were appropriate, and the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, special circumstances are not confined to cases where extended parole supervision is demonstrably desirable. The full range of considerations bearing on the minimum period of actual incarceration is potentially relevant.
  • Relevant subjective factors and "special circumstances" are discrete considerations. Matters already properly weighed in fixing the head sentence and non-parole period cannot be automatically re-characterised as special circumstances to justify a further reduction in the non-parole period proportion.
  • No obligation exists on a sentencing judge to give reasons for declining to depart from the statutory three-quarters ratio between the non-parole period and the head sentence.
  • Under s 6(3) of the Criminal Appeal Act 1912, an appellate court must identify error in the original sentence before it becomes entitled to substitute a different one. The Court of Criminal Appeal confirmed that the statutory language requires both that another sentence be "warranted in law" and that it "should have been passed."
  • In dismissing the appeal, the Court approved the original sentences as appropriate, given the objective seriousness of the offending, the substantial amounts defrauded, and the significant degree of planning involved.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BB
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Sentencing Act 1989 (NSW)
- Probation and Parole Act 1983 (NSW)
- Criminal Code (WA)

Cases:
- Griffiths v The Queen (1989) 167 CLR 372
- Power v The Queen (1973) 131 CLR 623
- Dinsdale v The Queen (2000) 202 CLR 321
- R v GDR (1994) 35 NSWLR 376
- R v Moffitt (1990) 20 NSWLR 114
- R v Phelan (1993) 66 ACrimR 447
- R v Astill (No 2) (1992) 64 ACrimR 289
- R v Hameed [2001] NSWCCA 287
- R v Edigarov [2001] NSWCCA 436
- R v Morrissey (NSWCCA, 15 July 1994, unreported)
- R v Vachalec [1981] 1 NSWLR 351
- R v Visconti [1982] 2 NSWLR 104
- R v Bo Too (NSWCCA, 16 July 1992, unreported)
- Bugmy v The Queen (1990) 169 CLR 525
- House v The King (1936) 55 CLR 499
- Pearce v The Queen (1998) 194 CLR 610