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Court of Criminal Appeal 12 August 2003

REGINA v GARVEY

[2003] NSWCCA 226

Also reported as 142 A Crim R 194
Theft & property
CRIMINAL LAW SENTENCE APPEAL AGAINST SENTENCE WHETHER DE SIMONI PRINCIPLE RELEVANT PRINCIPLE OF REHABILITATION WHETHER SPECIAL CIRCUMSTANCES EXIST

Citation: [2003] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 12 August 2003
Judge(s): Wood CJ at CL, Simpson J, Adams J

Background

The applicant, a young Aboriginal man aged eighteen and a half at the time of the offence, pleaded guilty in the District Court to breaking, entering and stealing from a warehouse occupied by an electrical retail company. He stole three items of electronic equipment valued at approximately $25,000. During or after the break-in, a fire was started on a desk inside the premises, which a security guard extinguished before it caused major damage.

The applicant was sentenced to four years' imprisonment with a non-parole period of two years, commencing 18 June 2002. He sought leave to appeal against that sentence in the Court of Criminal Appeal.

The key dispute concerned whether the fire was properly treated as an aggravating circumstance, whether the sentencing judge allowed an adequate discount for the plea of guilty, and whether special circumstances justified departure from the standard statutory ratio between head sentence and non-parole period.

  • Whether the setting of the fire was properly taken into account as an aggravating circumstance in sentencing for break, enter and steal
  • Whether the De Simoni principle (which prohibits a sentencing court from treating as an aggravating factor a matter that would have warranted conviction for a more serious offence) applied in the circumstances
  • Whether an appropriate discount was given for the plea of guilty in accordance with R v Thomson and Houlton
  • Whether special circumstances existed justifying a departure from the statutory non-parole period ratio under section 44 of the Crimes (Sentencing Procedure) Act 1999

Decision

The Court acknowledged that treating the fire as an aggravating circumstance raised a potential De Simoni problem. Deliberately causing the fire could have constituted an offence under section 195(b) of the Crimes Act 1900, punishable by up to ten years' imprisonment, which is more serious than the offence to which the applicant pleaded guilty. However, because the applicant had not objected to this aggravation at the District Court level and did not press the point on appeal, the Court considered it unnecessary to resolve the De Simoni question in this case.

The Court found that the sentencing judge had not given adequate weight to the guilty plea and the applicant's remorse and contrition. Applying Thomson and Houlton, the Court held that a discount of twenty-five per cent should have been applied.

On the question of special circumstances, the Court found that several factors justified a substantial departure from the standard ratio under section 44: the applicant's relative youth, the fact that this was his first experience of adult custody, his prospects for rehabilitation, and the need for a longer period of post-release supervision and support. The Court reduced the head sentence to three years and set a non-parole period of twenty-one months, the latter figure combining a fifteen-month non-parole period for the present offence accumulated with a six-month non-parole period from a subsequent sentence for assault.

Orders Made

  • Leave to appeal against sentence granted
  • The District Court sentence quashed and substituted with a term of three years' imprisonment commencing 18 June 2002 and expiring 17 June 2005
  • A non-parole period of twenty-one months imposed, with the applicant to be released to parole on 17 March 2004, subject to supervision by the Adult Probation Service

Key Takeaways

  • The De Simoni principle, which prevents a sentencing court from treating as an aggravating factor conduct that would have supported conviction for a more serious offence, was flagged as potentially relevant where a fire set during a break-in constituted a separate, more serious offence. The Court of Criminal Appeal left the question open because it had not been pressed by the applicant.
  • A discount for a plea of guilty must adequately reflect the timing and utility of the plea, together with evidence of remorse and contrition, consistent with the Thomson and Houlton guidelines.
  • Special circumstances under section 44 of the Crimes (Sentencing Procedure) Act 1999 can include the offender's youth, first exposure to adult imprisonment, rehabilitation prospects, and the need for extended post-release supervision. These factors, in combination, justified a significant departure from the standard non-parole period ratio here.
  • Where a subsequent sentence has been expressed to commence on the anticipated expiry of an earlier non-parole period, section 59 of the Crimes (Sentencing Procedure) Act 1999 permits the court to treat that subsequent sentence as commencing from the date the revised non-parole period expires.
  • Positive evidence of an offender's work history and character, including employer references showing consistent and trustworthy conduct, is relevant to rehabilitation prospects and can influence the structure of a sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), section 195(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 44 and 59

Cases
- Attorney General's Application (No 1); R v Ponfield and Ors [1999] NSWCCA 435; (1999) 48 NSWLR 327
- R v De Simoni (1981) 147 CLR 383
- R v Thomson and Houlton (2000) 49 NSWLR 383