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Court of Criminal Appeal 5 July 2007

Huntingdon v Regina

[2007] NSWCCA 196

Sexual offencesAssault & violence
CRIMINAL LAW SENTENCING DE SIMONI PRINCIPLE BACKDATING SENTENCE SPECIAL CIRCUMSTANCES SENTENCE NOT MANIFESTLY EXCESSIVE.

Citation: Huntingdon v Regina [2007] NSWCCA 196
Court: NSW Court of Criminal Appeal
Date: 5 July 2007
Judge(s): Giles JA, James J, Hislop J

Background

The appellant pleaded guilty in the District Court to two offences against a female victim: common assault and indecent assault committed in company. Both offences occurred on 7 January 2006. In essence, the indecent assault involved the appellant removing the victim's clothing and underwear while she was partially covered and calling upon another person to look at her exposed body.

The District Court sentenced the appellant to a fixed term of 80 days for the assault and a non-parole period of 15 months with an additional term of 5 months for the indecent assault. Both sentences were backdated to 8 May 2006. The sentencing judge allowed a discount of approximately 10 per cent for the guilty plea and noted the offending occurred in breach of bail and an existing bond.

The appellant sought leave to appeal the sentence for the indecent assault on four grounds.

  • Whether the sentencing judge breached the principle in R v De Simoni by treating "commission of the offence in company" as an aggravating factor, when that same circumstance could have supported a conviction for the more serious offence of aggravated indecent assault
  • Whether the sentencing judge failed to take into account pre-sentence custody and the principle of totality
  • Whether the sentencing judge erred in considering whether special circumstances existed to vary the standard non-parole to additional term ratio
  • Whether the sentence was manifestly excessive

Decision

De Simoni ground: The Court accepted that the sentencing judge had technically erred by treating the commission of the offence "in company" as an aggravating factor. Under the De Simoni principle, a sentencing judge cannot treat a circumstance of aggravation as a sentencing factor if that same circumstance would have warranted conviction for a more serious offence. Here, being "in company" is a statutory aggravating circumstance for the more serious offence of aggravated indecent assault under s 61M of the Crimes Act 1900. However, the Court found on the facts that the appellant and his co-offender did not share a common purpose in committing the indecent assault. As a result, the "in company" feature did not actually qualify as a circumstance of aggravation for s 61M purposes, and no practical error resulted from how the judge had framed it.

Pre-sentence custody and totality: The Court acknowledged the sentencing judge had not explicitly addressed backdating or the principle of totality in the remarks on sentence. The sentences were in fact backdated, so pre-sentence custody was accounted for in practical effect. Although the absence of express reasoning was an error in form, it produced no different outcome. Totality was also satisfied because the first offence attracted only a minor fixed term concurrent with the principal sentence.

Special circumstances: The Court found the sentencing judge gave proper consideration to whether the standard ratio between non-parole period and additional term should be varied. The judge was not required to find special circumstances merely because the appellant was young or had a difficult background. No error was established on this ground.

Manifest excess: The Court held the sentence was high but remained within the proper exercise of the sentencing discretion. The fact that the matter could have been dealt with summarily in the Local Court did not require the sentence to be capped at the Local Court's jurisdictional maximum. Citing Markarian v R, the Court affirmed that there is no single correct sentence and that sentencing judges must be allowed appropriate flexibility.

While the Court identified errors in the sentencing judge's approach, it concluded those errors had no impact on the sentence actually imposed. It was not established that any other, less severe, sentence was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The De Simoni principle, now preserved by s 21A(4) of the Crimes (Sentencing Procedure) Act 1999, prohibits a sentencing judge from treating a circumstance of aggravation as a sentencing factor if that circumstance would have supported conviction for a more serious offence.
  • Where an offence is committed "in company," that circumstance only constitutes aggravation under s 61M of the Crimes Act 1900 if the participants shared a common criminal purpose. Physical presence alone is insufficient.
  • Errors in a sentencing judge's reasoning do not automatically warrant intervention on appeal. The Court of Criminal Appeal will substitute a sentence only if it forms the positive opinion that some other, less severe, sentence was warranted in law and should have been passed.
  • Backdating a sentence to the date of custody can satisfy the requirement to account for pre-sentence custody, even where the sentencing judge does not expressly address the point in reasons.
  • Sentencing a matter in the District Court that could have been dealt with summarily does not, of itself, limit the available penalty to the Local Court's jurisdictional maximum.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 61L, 61M
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 24, 47
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v De Simoni (1980-1981) 147 CLR 383
- Markarian v R (2005) 215 ALR 213
- R v Button (2002) 54 NSWLR 455
- R v Simpson (2001) 53 NSWLR 704
- R v Close (1992) 31 NSWLR 743
- R v Wickham [2004] NSWCCA 193
- R v Yang (2003) 135 A Crim R 237
- R v Fidow [2004] NSWCCA 172
- R v Cook [1999] NSWCCA 234
- R v Hajjo (NSWCCA, unreported, 31 August 1992)
- R v John David (NSWCCA, unreported, 20 April 1995)
- R v Niass (NSWCCA, unreported, 16 November 1988)