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Court of Criminal Appeal 31 March 2004

R v Smith

[2004] NSWCCA 95

Also reported as 144 A Crim R 577
Fraud & dishonesty
CRIMINAL LAW AND PROCEDURE APPEAL AGAINST SEVERITY OF SENTENCE WHETHER BREACH OF DE SIMONI PRINCIPLE

Citation: R v Smith [2004] NSWCCA 95
Court: NSW Court of Criminal Appeal
Date: 31 March 2004
Judge(s): Howie J, Hidden J, Sperling J

Background

The applicant pleaded guilty in the District Court to demanding money and a keycard with menaces and with intent to steal, contrary to s 99(1) of the Crimes Act 1900, which carries a maximum penalty of ten years' imprisonment. This was a lesser charge than the original counts of robbery in company (maximum 25 years) and demanding with menaces in company with intent to steal (maximum 14 years), which were the subject of plea negotiations.

The sentencing judge, Christie DCJ, imposed three years' imprisonment with a non-parole period of two years, backdated to the date of arrest. At the time of the offence, the applicant was on conditional liberty under suspended sentences for dishonesty-related offences imposed only two months earlier. He had a lengthy prior record of offending beginning in the Children's Court and had repeatedly failed to respond to probationary measures.

The applicant sought leave to appeal on the ground that the sentence was manifestly excessive, arguing the sentencing judge had committed two distinct errors in his reasoning.

  • Whether the sentencing judge erred by referring to the guideline judgment in R v Henry (which concerns armed robbery offences carrying 20 to 25 year maximum penalties) when sentencing for a different offence with a ten-year maximum
  • Whether the sentencing judge breached the De Simoni principle by taking into account that the applicant had taken $200 cash from the victim, a fact not established by the offence to which he pleaded guilty
  • Whether those errors, individually or together, rendered the sentence manifestly excessive so as to warrant the Court of Criminal Appeal substituting a lesser sentence

Decision

On the R v Henry question, the Court found the sentencing judge's repeated references to that guideline judgment were unnecessary and unhelpful. Guideline judgments apply to the specific offences and circumstances they address and are not to be extended beyond that scope. However, Christie DCJ had explicitly acknowledged that the offence before him was less serious than armed robbery, and the Court concluded that this express recognition was sufficient to prevent the references from materially distorting the sentencing exercise.

On the De Simoni issue, the Court found that the introduction of the $200 figure into the sentencing proceedings was "unfortunate." The De Simoni principle (which prevents a sentencing court from taking into account facts that would have established a more serious offence than the one for which the offender was convicted) was plainly engaged. The applicant had pleaded guilty to a demand offence, and the fact that money was actually obtained was an element of the aggravated version of the offence rather than the charge to which he pleaded.

Despite identifying both errors as intrusions into the sentencing process, the Court declined to intervene. The statutory test requires the Court to form a positive opinion that some other sentence was warranted in law and should have been passed, not merely to identify a possible error. Given the applicant's extensive prior record, his persistent failure to respond to earlier court orders, and the seriously aggravating circumstance that he reoffended while on conditional liberty, the Court was not persuaded that the sentence fell outside the legitimate range of the sentencing discretion.

The Court also noted that the applicant's apparent continuing rehabilitation while in custody had been recognised by the favourable non-parole period granted at first instance, and that this progress had continued.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that guideline judgments are confined to the offences and circumstances to which they are directed; applying R v Henry (an armed robbery guideline) to a lesser demand offence was unnecessary and unhelpful, even if the sentencing judge acknowledged the distinction.
  • A sentencing court breaches the De Simoni principle when it takes into account facts that would constitute an element of a more serious offence than the one for which the offender was convicted, even where those facts emerge during the sentencing proceedings.
  • Identifying errors in the sentencing process does not automatically trigger appellate intervention. Under s 6 of the Criminal Appeal Act 1912, the Court must form a positive opinion that a different sentence was warranted in law and should have been passed.
  • In dismissing the appeal, the Court gave significant weight to the applicant's serious criminal history and the aggravating feature of reoffending while on conditional liberty, finding these factors kept the sentence within the legitimate discretionary range.
  • Reoffending while subject to suspended sentences or bonds is a factor capable of sustaining an otherwise contestable sentence on appeal, even where procedural missteps occurred at first instance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 94, 97(1), 99(1), 99(2)
- Criminal Appeal Act 1912 (NSW), s 6

Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery)
- De Simoni v The Queen (1981) 147 CLR 383 (principle against sentencing for more serious uncharged conduct)
- R v Whyte (2002) 55 NSWLR 252 (status of guideline judgments)
- R v Simpson (2001) 53 NSWLR 704 (appellate intervention standard)
- R v SY [2003] NSWCCA 291