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42
Court of Criminal Appeal 19 April 2004

R v Newman, R v Simpson

[2004] NSWCCA 102

Also reported as (2004) 145 A Crim R 361
Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL PRACTICE AND PROCEDURE SENTENCING APPLICATION OF FERNANDO PRINCIPLES COMMENCEMENT DATE OF THE SENTENCE

Citation: R v Newman, R v Simpson [2004] NSWCCA 102
Court: New South Wales Court of Criminal Appeal
Date: 19 April 2004
Judge(s): McColl JA, Howie J, Shaw J

Background

The two applicants, along with a third co-offender, entered the home of a 67-year-old man in Griffith late at night in October 2002. The group was heavily intoxicated and had agreed to steal property from the victim's home to fund the purchase of alcohol. One applicant, a woman who knew the victim personally (he had provided her with pastoral and material support), gained entry by deception and left a door open for her co-offenders. The other applicant and the third offender, wearing balaclavas, then confronted and assaulted the victim inside his bedroom.

All three were originally charged with armed robbery with wounding under the Crimes Act 1900. They pleaded not guilty to that charge but guilty to an alternative charge of aggravated entry into a dwelling with intent to commit a serious indictable offence under section 113(3), which carries a maximum penalty of 20 years imprisonment. The Crown accepted those pleas in full satisfaction of the indictment.

In the District Court, the male applicant was sentenced to eight years imprisonment with a five-year non-parole period, and the female applicant received approximately five and a half years with a three-year non-parole period. Both sought leave to appeal those sentences to the Court of Criminal Appeal.

  • Whether the sentencing judge correctly applied the Fernando principles, which recognise the relevance of an offender's Aboriginality and associated social disadvantage to the sentencing exercise
  • Whether the commencement date of the male applicant's sentence was correctly calculated, given time already spent in custody
  • Whether a victim's expressed wish for leniency toward the offenders was a relevant consideration in sentencing
  • Whether the factual basis presented to the sentencing judge was appropriate, given that the agreed statement of facts effectively described the more serious offence of armed robbery rather than the offence to which the applicants had pleaded guilty

Decision

Factual basis for sentencing. Howie J identified a significant procedural concern at the outset. The agreed statement of facts tendered to the sentencing judge described conduct that would have supported the more serious armed robbery charge, not simply the offence to which the applicants had pleaded guilty. This created a real risk that the sentencing discretion had miscarried, because no distinction was drawn between the two offences when assessing the seriousness of what was actually charged. The court reiterated the principle from Palu that statements of facts must align with the offence for which the offender is being sentenced, and must not smuggle in aggravating features relevant only to a more serious charge.

Fernando principles. The Fernando principles require a sentencing court to consider the particular circumstances of Aboriginal offenders, including the effects of social disadvantage, alcohol dependency, and community background. The court found that the sentencing judge had not adequately engaged with these principles in relation to both applicants. The female applicant in particular had a history of significant social disadvantage, a prior violent relationship, and alcohol dependency that had not been sufficiently weighed.

Commencement date. The male applicant had been in custody since October 2002, but his sentence was dated from that time. The court examined whether this was correctly reflected in the sentence structure and considered whether any error arose from the commencement date as fixed by the sentencing judge.

Victim's views. The court considered the significance of the victim's expressed desire for leniency. Shaw J reviewed the authorities and concluded that while a victim's charitable or forgiving attitude cannot govern the court's sentencing duty, it is not entirely irrelevant either. A victim's views favouring leniency may carry at least minor weight, particularly when weighed against other sentencing purposes such as general deterrence, but they cannot displace those purposes.

Re-sentencing. Given the identified errors, the court re-sentenced both applicants. The majority (Howie J, with whom McColl JA agreed) would have granted leave and dismissed the appeals. However, the orders recorded in Shaw J's judgment indicate the court ultimately re-sentenced both applicants to reduced terms.

Orders Made

  • Leave to appeal granted in each case
  • Appeals upheld
  • The male applicant re-sentenced to seven years imprisonment with a non-parole period of four years
  • The female applicant re-sentenced to four years imprisonment with a non-parole period of two years

Key Takeaways

  • The Fernando principles require a sentencing court to actively engage with the circumstances of Aboriginal offenders, including the effects of social disadvantage and alcohol dependency on offending behaviour. A failure to do so may constitute an error justifying resentencing on appeal.
  • Where parties present an agreed statement of facts following a plea to an alternative, lesser charge, that statement must reflect the offence actually charged. Facts that support only the more serious charge risk producing a sentence that, in effect, punishes the offender for conduct they were not convicted of, contrary to the principle in R v De Simoni.
  • A victim's expressed forgiveness or wish for leniency is not entirely irrelevant to sentencing, but it cannot determine the outcome. Courts retain an independent duty to apply sentencing principles, including general deterrence, regardless of the victim's personal views.
  • Rehabilitation progress made in custody, including educational achievement and participation in therapeutic programs, remains a relevant consideration if a court is called upon to re-sentence.
  • Inconformity between the factual basis for sentencing and the offence charged is not a mere technicality. The Court of Criminal Appeal confirmed it can have real substantive consequences for the exercise of the sentencing discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 105A, 113(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 24(a), 28(3), 47(3)

Cases
- Fernando (1992) 76 A Crim R 58
- Palu (2002) 134 A Crim R 174
- R v De Simoni (1981) 147 CLR 383
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Morgan (2003) 57 NSWLR 533
- R v Phillips and Simpson [2002] NSWCCA 167
- R v Galati [2003] NSWCCA 148
- R v Nykolyn [2003] NSWCCA 229
- R v Howard [2001] NSWCCA 309
- R v English [2000] NSWCCA 245
- R v Ponfield (1999) 48 NSWLR 327
- Leete (2001) 125 A Crim R 37
- Ceissman (2001) 119 A Crim R 535
- Edwards (1996) 90 A Crim R 510
- Kanj (2000) 118 A Crim R 329
- Russell (1995) 84 A Crim R 386
- Rowe (1996) 89 A Crim R 467
- R v Li (NSWCCA, unreported, 9 July 1997)
- R v McHugh (1985) 1 NSWLR 588