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Court of Criminal Appeal 20 June 2003

Regina v Timmis

[2003] NSWCCA 158

Theft & property

Citation: Regina v Timmis [2003] NSWCCA 158
Court: NSW Court of Criminal Appeal
Date: 20 June 2003
Judge(s): Hodgson JA, Simpson J, Greg James J

Background

The applicant pleaded guilty in the District Court to accessory after the fact to break, enter and steal, and to receiving a stolen motor vehicle (first indictment), as well as to larceny of a motor vehicle (second indictment). On both indictments, additional offences were listed on Form 1 schedules, meaning the applicant admitted those further offences and asked that they be taken into account on the head sentence without being separately prosecuted.

The sentencing judge (Sides DCJ) imposed a total effective sentence of four and a half years imprisonment, with a non-parole period of two years and three months. The sentence for the accessory count was ordered to be served cumulatively upon the non-parole period of the motor vehicle larceny sentences.

The applicant sought leave to appeal, arguing that the sentencing judge misapplied the principles governing Form 1 offences and that the sentences were manifestly excessive.

  • Whether the sentencing judge correctly applied the principles in Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 when taking the Form 1 offences into account
  • Whether the total effective sentence, including the cumulative structure, was manifestly excessive

Decision

On the first ground, the Court examined remarks made by Sides DCJ about how he intended to treat the Form 1 offences. Greg James J noted that the sentencing judge's language carried some ambiguity. However, examining what the judge actually did, the Court was satisfied that the Form 1 offences were taken into account in a manner consistent with the approach confirmed in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002. The totality principle was applied appropriately in that exercise.

On the second ground, the Court rejected the argument that the sentences were manifestly excessive. Simpson J found that the offences were serious, noting that the accessory count involved a sophisticated commercial break-in netting $76,000 in stolen goods, and that the motor vehicle offending demonstrated a pattern of dishonest conduct. The sentencing judge's factual findings, including an inference that the applicant had physically assisted the principal offenders, were not disturbed. Greg James J confirmed that an appellate court has no power under the Criminal Appeal Act 1912 to interfere with findings of fact and the weight given to them unless established grounds for setting aside the exercise of the sentencing discretion are demonstrated. No such grounds were made out here.

The Court accepted that the applicant's subjective features, including eventual cessation of offending and a plea of guilty, were properly considered, but these did not bring the total sentence into the range of manifest excess.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that Form 1 offences must be genuinely reflected in the sentence imposed, not merely acknowledged in passing, and that the sentencing court may properly apply the totality principle when calibrating that uplift.
  • Under Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999, an offender whose additional admitted offences are placed on a Form 1 may expect that any extension of sentence is significantly less than it would have been had those matters been charged on indictment separately.
  • Ambiguous language in a sentencing judge's reasons does not automatically establish error: appellate courts look to what the judge actually did, not merely how it was expressed.
  • Factual findings made at sentence, including inferences drawn from circumstantial evidence, fall within the sentencing discretion and will not be disturbed on appeal unless established grounds for intervention are made out.
  • In dismissing the appeal, the Court reinforced that favourable subjective features, including cessation of offending and guilty pleas, do not necessarily render an otherwise appropriate cumulative sentence manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3, s 44
- Criminal Procedure Act 1986 (NSW)
- Crimes Act 1900 (NSW), s 447B
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 581 (20 December 2002)