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Court of Criminal Appeal 12 June 2002

REGINA v RANDALL

[2002] NSWCCA 239

Assault & violenceTheft & property

Citation: Regina v Randall [2002] NSWCCA 239
Court: NSW Court of Criminal Appeal
Date: 12 June 2002
Judges: Adams J, Blanch AJ

Background

The applicant, an Aboriginal man with severe intellectual disabilities, pleaded guilty in the Lismore District Court to stealing from the person under s 94 of the Crimes Act 1900. The offence involved pushing a 77-year-old woman in a supermarket car park, causing a laceration and bruising, before snatching her handbag. He was apprehended shortly after and admitted the offence to police.

The sentencing judge imposed three years and six months imprisonment with a non-parole period of 21 months. The applicant sought leave to appeal on the basis that the sentence was excessive.

  • Whether the sentencing judge impermissibly treated the assault element as an aggravating factor, contrary to the principles in Queen v De Simoni, when the applicant was charged with stealing from the person rather than robbery
  • Whether the sentencing judge gave excessive weight to general deterrence, particularly given the applicant's significant intellectual disability and personal circumstances
  • Whether the resulting sentence was manifestly excessive, warranting resentencing by the Court of Criminal Appeal

Decision

The Court found that the sentencing judge had erred in accordance with the De Simoni principle. The judge characterised the offence as one involving a serious assault with the potential to cause significant injury. However, because the applicant was charged with stealing from the person under s 94 rather than robbery, the assault could not properly be used as an aggravating factor. If the prosecution wished the assault to carry sentencing weight, the appropriate charge was robbery, which expressly incorporates assault as an element.

On the question of general deterrence, Adams J accepted that the sentencing judge had formally acknowledged its reduced relevance given the applicant's severe intellectual disability and background of disadvantage. Nevertheless, the starting point of four years and six months indicated that general deterrence had in fact been given substantial and disproportionate weight, particularly in light of the judge's comments about the frequency of similar offences in the Lismore area.

The Court also took into account the applicant's subjective circumstances, including his childhood in an economically deprived Aboriginal community, a history of petrol sniffing from age five, cognitive testing placing him in the bottom one percent of the population, and the limited utility of personal deterrence for an offender with such significant intellectual and psychological deficits. These factors, combined with the De Simoni error and the excessive starting point, justified resentencing.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence below quashed
  • Sentence of two years and six months imprisonment substituted, commencing 15 February 2001 and expiring 14 August 2003, with a non-parole period of 17 months expiring 14 July 2002
  • Applicant to be released to parole on the specified date under the supervision of the Probation and Parole Service

Key Takeaways

  • The De Simoni principle prohibits a sentencing court from treating as an aggravating circumstance any fact that, if proved, would have exposed the offender to a more serious charge carrying a greater penalty. Here, treating the assault as a significant aggravating feature was impermissible when the charge was stealing from the person rather than robbery.
  • Under s 94 of the Crimes Act 1900, robbery and stealing from the person carry the same maximum penalty of 14 years, but the distinction between the two charges remains legally significant for sentencing purposes because robbery requires an assault as an element.
  • General deterrence has limited application when sentencing offenders with significant intellectual or psychological disabilities, and a sentencing court's stated acknowledgment of that limitation will not be accepted at face value if the resulting sentence appears inconsistent with it.
  • Severe intellectual disability, an impoverished background, and a history of substance abuse from early childhood are relevant subjective factors that the Court of Criminal Appeal weighed in reducing the sentence.
  • In dismissing the original sentence, the Court of Criminal Appeal applied a 25 percent discount to the head sentence to reflect the utilitarian value of the early guilty plea, noting it spared an elderly victim from giving evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 94 (robbery or stealing from the person)
- Criminal Code (WA), s 1(1) (definition of "circumstance of aggravation", referred to in the De Simoni analysis)

Cases
- Queen v De Simoni (1980-1981) 147 CLR 303 (High Court authority on the impermissibility of sentencing on the basis of uncharged aggravating circumstances that would attract a more serious offence)
- Queen v Overall (unreported, NSWCCA, 16 December 1993) (NSW Court of Criminal Appeal authority applying De Simoni principles)