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2
Court of Criminal Appeal 2 April 2007

LIAO v R

[2007] NSWCCA 132

Assault & violenceTheft & propertyFirearms & weapons
APPEAL AGAINST SENTENCE ROB LANDLADY ARMED WITH A WEAPON REFERENCE TO “GRATUITOUS” VIOLENCE WHETHER A BREACH OF DE SIMONI PRINCIPLE

Citation: LIAO v R [2007] NSWCCA 132
Court: NSW Court of Criminal Appeal
Date: 2 April 2007
Judge(s): McClellan CJ at CL, Hulme J, Hoeben J

Background

The appellant was a tenant living in a townhouse owned and occupied by his landlady. After losing $7,000 gambling at a casino and contemplating suicide, he purchased a kitchen knife, planned the offence overnight, and the following morning lured his landlady into his bedroom under the pretence of inspecting a broken window.

Once she entered the room, he held the knife to her neck, threatened to kill her, struck her with a wooden rolling pin, tied her hands and feet, gagged her, and forced her to assist him in locating her wallet and bank cards. He attempted to withdraw funds from her accounts and her daughter's account, and told her he would return and kill her if the PIN numbers she provided did not work. He was ultimately arrested after calling triple zero himself and directing police to his location.

The appellant pleaded guilty in the District Court to robbery when armed with an offensive weapon under s 97(1) of the Crimes Act 1900. He was sentenced to a total term of six years, with a non-parole period of two years and nine months. He appealed to the Court of Criminal Appeal, contending that the sentence was excessive and that two specific findings by the sentencing judge were in error.

  • Whether the sentencing judge's reference to "gratuitous" violence breached the principle in De Simoni (1981) 147 CLR 383, which prohibits a sentencing court from punishing an offender for a more serious offence of which they have not been convicted
  • Whether the sentencing judge erred in finding that the appellant had "breached a degree of trust" by virtue of his lodger relationship with the victim
  • Whether the total sentence and non-parole period were manifestly excessive

Decision

On the De Simoni issue, the Court of Criminal Appeal found no breach. The sentencing judge's reference to "gratuitous" violence was understood as an observation about the nature of the actual conduct, specifically that the blow with the rolling pin was unnecessary to achieve the offence. The more serious offence that might have been contemplated, robbery in circumstances of aggravation involving corporeal violence, carries the same maximum penalty of 20 years as the offence charged under s 97(1). Because there was no difference in maximum penalty between the two, no De Simoni problem could arise.

On the breach of trust finding, the Court did not find it necessary to resolve definitively whether the landlady-lodger relationship falls within the statutory aggravating factor in s 21A(2)(k) of the Crimes Act. The Court held that it was, at minimum, a relevant sentencing factor that the appellant's position as a lodger in the victim's home provided the very opportunity to commit the offence. He had exploited that access by luring her into his room under false pretences.

The Court also rejected the submission that the sentence was manifestly excessive. The sentencing judge had correctly assessed the objective seriousness of the offence as above the midpoint, and the guideline set out in Henry (1999) 46 NSWLR 346 was satisfied. McClellan CJ at CL observed that a greater non-parole period may even have been appropriate given the circumstances, but the sentence as imposed was within range. The 25 per cent discount for the early guilty plea had been applied, and the non-parole period of less than 50 per cent of the total sentence reflected the sentencing judge's assessment of the appellant's rehabilitation prospects.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No breach of the De Simoni principle arises where the offence actually charged and the arguably more serious offence a sentencing judge's language may have evoked carry the same statutory maximum penalty.
  • The Court of Criminal Appeal confirmed that a sentencing judge is not required to decide whether a specific statutory aggravating factor technically applies if the same factual circumstance is independently relevant as a sentencing consideration under established guidelines.
  • A lodger's exploitation of the access provided by living in a victim's home can properly be treated as a relevant aggravating circumstance, even if the landlady-lodger relationship is not identical to relationships of high trust such as guardian and child.
  • In dismissing the appeal, the Court noted that the sentence imposed was within range and that, if anything, a higher non-parole period might have been justified on the facts.
  • Under the guideline in Henry, an offender whose criminality exceeds the standard contemplated by that guideline may receive a sentence above the benchmark, adjusted for the utilitarian value of an early guilty plea.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery when armed with an offensive weapon), s 21A(2)(k) (aggravating factors)

Cases
- De Simoni (1981) 147 CLR 383
- Henry (1999) 46 NSWLR 346