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Court of Criminal Appeal 5 April 2005

Simon v R

[2005] NSWCCA 123

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Simon [2005] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 5 April 2005
Judge(s): Spigelman CJ, Studdert J, Howie J

Background

The appellant pleaded guilty in the District Court to two counts arising from a violent attempted robbery at a bowling club in March 2002. The first and more serious count was intentionally inflicting grievous bodily harm under s 33 of the Crimes Act 1900, carrying a maximum penalty of 25 years imprisonment. The second count was armed robbery of another person at the same venue, also carrying a maximum of 25 years. Ten additional matters (break and enter offences) were listed on a Form 1 for consideration during sentencing.

The appellant was 18 years old at the time of the offences. He had an extensive but non-violent criminal history and an extremely difficult background, including an absent mother who was incarcerated for much of his childhood, exposure to drug and alcohol abuse from a very young age, and his Aboriginal heritage. He had ceased attending school by age 13 and began using heroin by 14.

District Court Judge Coolahan sentenced the appellant to a non-parole period of 10 years and a balance of term of 5 years for the s 33 offence (total 15 years), with a concurrent fixed term of 4 years for the armed robbery. The appellant sought leave to appeal on two grounds.

  • Whether the sentencing judge erred by failing to give effect to a finding of special circumstances when fixing the non-parole period
  • Whether the total sentence imposed was manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal accepted that the s 33 offence was extremely serious. The attack on the security officer, Mr Kallinis, involved the applicant striking the victim to the back of the head with a metal pipe, rendering him unconscious, followed by a firearm being discharged at close range and a prolonged beating. The injuries were initially life-threatening and required reconstructive facial surgery and removal of a bullet.

On the first ground, Howie J found that although the sentencing judge identified special circumstances, the non-parole period of 10 out of 15 years (representing approximately two-thirds of the total term) did not actually give any effect to that finding. This was a discernible error.

On the second ground, the Court found the total sentence of 15 years manifestly excessive, even accepting the very high objective seriousness of the offence. The Court had regard to a schedule of comparable s 33 sentences, which showed that only one sentence imposed after the introduction of standard non-parole periods in February 2003 exceeded 12 years, and that appeared to be the very sentence under review. The appellant's youth, his subjective circumstances, his Aboriginal background (considered in accordance with the principles in R v Fernando), his lack of any prior violence, and his guilty plea all warranted a more moderate sentence.

Howie J assessed the appropriate starting point before discount as 15 years, reduced by 20 percent for the guilty plea to 12 years. Giving effect to the finding of special circumstances, the non-parole period was fixed at 8 years with a balance of term of 4 years. Spigelman CJ and Studdert J agreed.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentence imposed for the first count on the indictment quashed
  • In substitution: non-parole period of 8 years from 2 June 2003, expiring 1 June 2011 (date eligible for release to parole)
  • Balance of term of 4 years from 2 June 2011, expiring 1 June 2015
  • Concurrent sentence for the second count was not disturbed

Key Takeaways

  • A finding of special circumstances by a sentencing judge must be given actual effect in the calculation of the non-parole period; identifying special circumstances without adjusting the ratio between the non-parole period and total sentence constitutes an error.
  • Manifest excess in a sentence for a very serious offence can still be established where the sentence is an outlier compared to the range of sentences imposed for comparable offences, even after the introduction of standard non-parole periods.
  • Under the principles in R v Fernando, an offender's Aboriginal background and the social disadvantages associated with it are relevant considerations in mitigation, particularly where there is a history of deprivation, lack of education, and substance abuse from a young age.
  • Youth operates as a mitigating factor even in cases of grave violence, though its weight is reduced where the offending lacks the impulsiveness typically associated with youthful behaviour.
  • The Court of Criminal Appeal confirmed that a 20 percent discount applied for a guilty plea, and that the proper approach was to identify the appropriate starting sentence, apply the discount, then fix the non-parole period to reflect special circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Tobar [2004] NSWCCA 391
- R v Way (2004) 60 NSWLR 168
- R v P [2004] NSWCCA 218
- R v Pellew [2004] NSWCCA 434
- R v Fernando (1992) 76 A Crim R 58
- R v Pham (1991) 55 A Crim R 123