Citation: Michael Wayne Pickett v R [2004] NSWCCA 389
Court: New South Wales Court of Criminal Appeal
Date: 12 November 2004
Judge(s): McColl JA, Howie J, Buddin J
Background
The applicant pleaded guilty in the District Court to two counts: stealing a motor vehicle and assaulting a police officer in the execution of his duty, occasioning actual bodily harm. Both offences arose on 19 July 2002 in Blacktown.
The assault occurred when the applicant, having crashed a stolen car during a police pursuit, reversed the vehicle into Senior Constable Evans. The open passenger door struck the officer in the back of the legs, and he was nearly crushed between the stolen car and his police vehicle. He sustained strains to his wrist, back, neck and legs.
The applicant was 43 at the time of the offences, of Aboriginal descent, and had a lengthy criminal history dating from 1978. That history included numerous motor vehicle offences, prior assaults occasioning actual bodily harm, and multiple terms of imprisonment. The offences were committed while he was on bail.
Legal Issues
- Whether the sentencing judge applied the De Simoni principle correctly by considering circumstances relating to a more serious charge that had been reduced
- Whether undue weight was given to delay in the sentencing process as a mitigating factor
- Whether the applicant's antecedent criminal history was used appropriately in the sentencing exercise
- Whether "special circumstances" existed justifying a variation to the standard non-parole period ratio
- Whether the orders made by the sentencing judge actually gave effect to her stated intention regarding that ratio
Decision
The Court confirmed the head sentence of 4 years imprisonment on the second count and upheld most of the District Court's reasoning. No appellable error was established in relation to the De Simoni principle, delay, or the treatment of criminal history, even where the precise language used by the sentencing judge was not a perfect reflection of orthodox principle.
On the De Simoni issue, the Court accepted the original charge (use of an offensive weapon to avoid lawful apprehension, carrying a 12-year maximum) had been relevant as context. The sentencing judge had not, however, been found to have punished the applicant for the more serious offence.
On antecedent history, the Court referred to the High Court's statement in Veen v The Queen (No 2) that criminal history is legitimately relevant not only to claims for leniency but also to the moral culpability of the offender, his dangerous propensity, and the need for specific deterrence. The Court found the sentencing judge, though not strictly orthodox in her language, had not erred in substance.
The appeal succeeded on one narrow ground. The sentencing judge had expressly stated she was varying the standard non-parole period ratio from 75/25 to 50/50 to reflect special circumstances requiring longer supervision. However, because the second sentence was partially accumulated on the first, the resulting overall non-parole period came to 60 per cent of the effective head sentence rather than the intended 50 per cent. The Court of Criminal Appeal intervened solely to correct that structural anomaly.
Orders Made
- Leave to appeal against the sentence on count 2 granted
- Appeal allowed in part
- Head sentence confirmed
- Non-parole period imposed in the District Court quashed and replaced with a non-parole period of 18 months, expiring 27 January 2005, at which date the applicant would be eligible for release on parole
Key Takeaways
- The De Simoni principle prohibits sentencing an offender for a more serious charge to which they were not convicted, but does not prevent the court from treating the surrounding circumstances as context when they are relevant to the offence charged.
- Antecedent criminal history is not confined to a mitigating role. As confirmed by reference to Veen v The Queen (No 2), prior convictions may be weighed against an offender where they illuminate moral culpability, reveal a dangerous propensity, or inform the need for specific deterrence.
- Where a sentencing judge states an explicit intention about the structure of a sentence (including the non-parole period ratio), the orders as made must actually give effect to that intention. A mismatch between stated intention and actual orders constitutes a correctable error.
- Partial accumulation of sentences can produce an aggregate non-parole period ratio that differs from the ratio applied to each individual sentence. This outcome may warrant intervention even where no other error is present.
- In dismissing most grounds of appeal, the Court of Criminal Appeal underscored that imprecise language in remarks on sentence does not automatically establish error if the overall sentencing exercise was consistent with correct principle.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), s 33B(1)(a) (use of offensive weapon to avoid lawful apprehension)
Cases
- The Queen v De Simoni (1981) 147 CLR 383
- Veen v The Queen (No 2) (1987-88) 164 CLR 465
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Qutami (2001) 127 A Crim R 369
- R v Bolamutu [2002] NSWCCA 454
- R v Sivyer [2002] NSWCCA 410
- R v Crombie [1999] NSWCCA 297
- R v LWP [2003] NSWCCA 215
- R v Wickham [2004] NSWCCA 193
- R v Keen [2004] NSWCCA 86