Citation: Regina v Fear [2002] NSWCCA 361
Court: New South Wales Court of Criminal Appeal
Date: 29 August 2002
Judge(s): Hidden J; Newman AJ
Background
The applicant pleaded guilty in the District Court to six counts on an indictment: two armed robberies, three break, enter and steal offences, and one count of possessing a shortened firearm. He also asked the court to take into account ten further offences on a Form 1, including robbery in company, weapons and firearms possession, drug offences, and driving offences.
The offences spanned November 1997 to September 1999 and were serious and professionally executed. The robberies targeted bowling clubs, with the applicant armed with a tomahawk and accompanied by a co-offender on each occasion. The break, enter and steal offences were committed at commercial premises, also in company, with substantial sums stolen and most of the money never recovered.
District Court Judge Nield imposed an effective sentence of 12 years imprisonment with a non-parole period of 9 years. The applicant sought leave to appeal, contending the sentence was excessive and affected by legal error.
Legal Issues
- Whether the sentencing judge gave sufficient weight to the applicant's subjective circumstances, including contrition and steps toward rehabilitation
- Whether the sentencing judge erred by failing to find special circumstances warranting a different ratio of non-parole to parole period
- Whether the sentencing judge took into account more serious offences than those charged, contrary to the principle in The Queen v De Simoni (1981) 147 CLR 383
- Whether the principle of parity in sentencing required a lesser sentence, given the outcomes for the applicant's co-offenders
- Whether the effective sentence of 12 years was manifestly excessive
Decision
The Court of Criminal Appeal found no error in the sentencing judge's treatment of the applicant's subjective case. The judge had accepted the guilty pleas were entered at the earliest appropriate opportunity, allowed a 25 percent discount, and acknowledged contrition and rehabilitation efforts. These matters were dealt with adequately in the sentencing remarks.
On the De Simoni question, the Court acknowledged that the sentencing judge's observations about the uncharged aggravated offences and the stolen motor vehicle were "unfortunate and should not have been made." However, the Court was not persuaded that those observations caused the sentencing process to miscarry. The sentencing judge had in fact specified what sentence he would have imposed under the aggravated charges, demonstrating care not to commit the De Simoni error. There was nothing in the sentence for the robbery involving the stolen vehicle to suggest that the uncharged theft had been treated as an aggravating factor.
The parity argument, based on the lighter sentences received by co-offenders PG and Douglas Carroll, was rejected. Carroll's overall criminality was substantially less serious, and PG's sentence had been reduced by almost half due to significant assistance to the authorities. Only three of the many offences for which PG was sentenced were common with the applicant, making a meaningful comparison impossible.
The Court accepted the 12-year sentence was severe but concluded it fell within the proper range. The applicant was not young, carried a criminal history, and had committed most of the offences while on bail, which significantly aggravated the offending.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing judge's observations that a more serious charge could have been laid, while not amounting to De Simoni error in this case, were described by the Court of Criminal Appeal as "unfortunate" and capable of giving rise to a perception of unfairness; such observations are best avoided.
- Under the De Simoni principle, a sentencing court must not take into account facts that would constitute a more serious offence than the one for which the offender stands to be sentenced.
- A parity argument will not succeed where co-offenders faced materially different overall charges, received discounts for assistance to authorities, or where the sentencing outcomes cannot be meaningfully compared.
- In dismissing the appeal, the Court confirmed that committing multiple serious offences while on bail is a significant aggravating feature that can support a substantial custodial sentence.
- No error was established in declining to find special circumstances where the overall sentence structure already afforded the applicant three years of supervised liberty upon release.
Legislation and Cases Referenced
Legislation:
- Firearms Act 1996 (NSW)
- Prohibited Weapons Act 1989 (NSW)
- Crimes Act 1900 (NSW), ss 112(1), 112(2), 105A(1)(b)
Cases:
- The Queen v De Simoni (1981) 147 CLR 383
- R v PG [2001] NSWCCA 231
- Pearce v The Queen (1998) 194 CLR 610