Citation: Regina v Philips; Regina v Simpson [2002] NSWCCA 167
Court: Court of Criminal Appeal, New South Wales
Date: 6 May 2002
Judge(s): Greg James J; Carruthers AJ
Background
Two co-offenders, a male applicant and a female applicant, sought leave to appeal against sentences imposed in the Sydney District Court following their guilty pleas to armed robbery charges under s 97(1) of the Crimes Act 1900. The offences arose from a knife-point robbery of a taxi driver in Annandale in the early hours of 28 April 2001, during which approximately $200 cash and personal items were stolen and the driver was placed in fear for his life.
The male applicant was sentenced to six years imprisonment with a three-year non-parole period, backdated to the date of his arrest. The female applicant, who had spent 33 days in pre-sentence custody before being granted bail, received a four-year sentence with a two-year non-parole period commencing from the date of sentencing. The sentencing judge acknowledged her pre-sentence custody but did not formally backdate her sentence to reflect it.
Both applicants challenged the sentences on several grounds, including that the sentencing judge failed to quantify the discount given for their pleas of guilty and, in the female applicant's case, did not backdate the sentence to account for pre-sentence custody.
Legal Issues
- Whether the sentencing judge erred by failing to expressly quantify the discount applied for each applicant's guilty plea
- Whether the sentencing judge erred by failing to formally backdate the female applicant's sentence to reflect 33 days of pre-sentence custody
- Whether either sentence was otherwise manifestly excessive in the circumstances
Decision
The Court dismissed the male applicant's appeal, finding that while the sentencing judge had not expressly quantified the guilty plea discount, the overall sentence was not manifestly excessive given his significant criminal history, the aggravating circumstances (including a current good behaviour bond and being on bail at the time of the offence), and the serious nature of the armed robbery.
On the question of guilty plea discounts, the Court affirmed the desirability of sentencing judges expressly quantifying the reduction given for a guilty plea, following the approach established in Regina v Thomson and Houlton (2000) 49 NSWLR 383. The failure to do so in the male applicant's case did not, however, establish error sufficient to warrant intervention.
The Court allowed the female applicant's appeal on the pre-sentence custody point. Applying the Full Bench decision in Regina v Howard [2001] NSWCCA 309 and the earlier guidance in Regina v McHugh (1985) 1 NSWLR 588, the Court held that where pre-sentence custody is exclusively referable to the offence being sentenced, the sentence should be backdated by an equivalent period rather than treated as an informal discount. The Court noted that imposing the sentence in round figures without a specific backdate left it unclear whether the 33 days had been properly accounted for.
The Court varied the female applicant's sentence to backdate its commencement by 33 days, to 17 September 2001. The total head sentence and non-parole period remained at four years and two years respectively, but both were adjusted to run from the earlier date.
Orders Made
- Male applicant (Philips): Leave to appeal granted; appeal dismissed.
- Female applicant (Simpson): Leave to appeal granted; appeal allowed. Sentence varied to four years imprisonment commencing 17 September 2001 and expiring 16 September 2005, with a non-parole period of two years commencing 17 September 2001 and expiring 16 September 2003.
Key Takeaways
- The Court of Criminal Appeal reaffirmed that sentencing judges should expressly quantify the discount applied for a guilty plea, rather than simply noting the plea as a mitigating factor without attaching a specific reduction.
- Where pre-sentence custody is exclusively referable to the offences being sentenced, the preferred practice is to formally backdate the sentence commencement date by the equivalent period. This approach, confirmed by the Full Bench in Regina v Howard, avoids "hidden factors" affecting the actual length of custody.
- Imposing a sentence in round figures without a specific backdate creates ambiguity about whether pre-sentence custody has been adequately accounted for, which can itself ground a successful appeal.
- In dismissing the male applicant's appeal, the Court found that sentencing errors of form do not automatically warrant intervention where the overall sentence is not shown to be manifestly excessive.
- Significant aggravating features, including committing a serious offence while subject to a good behaviour bond and while on bail, weighed heavily against the male applicant notwithstanding mitigating factors such as his guilty plea and drug addiction history.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c)(iii), 22(1), 24, 47(3)
- Justices Act 1902 (NSW), s 51A
Cases:
- Regina v Howard [2001] NSWCCA 309
- Regina v Thomson and Houlton (2000) 49 NSWLR 383
- Regina v McHugh (1985) 1 NSWLR 588
- Regina v Henry & Ors (1999) 46 NSWLR 346
- Lowe v The Queen (1984) 154 CLR 606
- Regina v Cartwright (1989) 17 NSWLR 243
- Regina v Hitchens [1983] 3 NSWLR 318
- Regina v English [2000] NSWCCA 245
- Regina v Frascella [2001] NSWCCA 137
- Regina v Rose [2001] NSWCCA 370
- Regina v Deeble (CCA, 19 September 1991, unreported)
- Regina v Thwaites (CCA, 1993, unreported)