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Court of Criminal Appeal 8 August 2007

Rickard v Regina

[2007] NSWCCA 238

Theft & propertyDomestic & family violencePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: Rickard v Regina [2007] NSWCCA 238
Court: NSW Court of Criminal Appeal
Date: 8 August 2007
Judge(s): Spigelman CJ, Hislop J, Harrison J

Background

The appellant pleaded guilty in the District Court to two offences arising from events on 5 March 2006 in Alexandria. The first offence was intimidation with intent to cause mental harm, under s 562AB of the Crimes Act 1900, directed at a former partner. The second was larceny under s 117 of the same Act, involving the theft of a leather jacket belonging to the former partner's new partner.

The sentencing judge, Berman DCJ, imposed a two-year sentence with an 18-month non-parole period (served by periodic detention) for the intimidation offence, and a concurrent fixed term of six months (also periodic detention) for the larceny.

The appellant sought leave to appeal to the Court of Criminal Appeal, challenging both the factual findings underpinning the sentence and the penalties themselves.

  • Whether the sentencing judge made findings of fact unsupported by, or inconsistent with, the evidence, affecting the assessment of aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred by failing to consider "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (a provision that allows adjustment of the ratio between head sentence and non-parole period)
  • Whether the sentences imposed were manifestly excessive

Decision

The Court of Criminal Appeal, with Spigelman CJ and Hislop J agreeing with Harrison J, allowed the appeal only in part. The sentence for the intimidation offence under s 562AB was confirmed. The reasoning addressed each ground in turn.

On the factual findings ground, the Court examined the sentencing judge's finding that the appellant lied when he claimed to have attended the former partner's home out of concern for her welfare. The Court assessed this ground against the pre-sentence report and forensic psychiatric report, both of which recorded the appellant's account of genuine welfare concerns.

The Court ultimately concluded that the larceny offence warranted a different outcome. Harrison J characterised the theft of the jacket as a spontaneous, impetuous, and immature act driven by jealousy rather than by any criminal purpose of gravity. The jacket was returned the following day. Given those circumstances, the Court considered that the larceny charge ought to be dismissed without conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999.

On the question of the sentencing judge's foreshadowed jurisdictional limit (noting the offence could have been dealt with summarily in the Local Court), the Court acknowledged that the undiscounted head sentence in fact exceeded that limit. However, the Crown conceded this error and the Court declined to interfere, finding no suggestion that the appellant's legal strategy below had been adversely affected by reliance on the judge's remarks.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Sentence imposed for the intimidation offence under s 562AB of the Crimes Act 1900 confirmed
  • Sentence imposed for the larceny offence under s 117 of the Crimes Act 1900 quashed; charge dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 (that is, without recording a conviction)

Key Takeaways

  • A sentencing judge's factual findings that are unsupported by, or inconsistent with, the evidence can constitute appellable error affecting the proper assessment of aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999.
  • Where a theft is characterised as spontaneous, impetuous, and minor in context, particularly where the stolen item is promptly returned, dismissal of the charge without conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999 may be an appropriate outcome on appeal.
  • An error by a sentencing judge in exceeding a foreshadowed jurisdictional limit will not automatically warrant appellate interference; the Court of Criminal Appeal declined to intervene where no prejudice to the appellant's conduct of the proceedings below was demonstrated.
  • The Court confirmed that different sentencing considerations apply as between a principal offence and a lesser associated offence: factors such as punishment, retribution, and deterrence do not necessarily carry equal weight across all counts sentenced together.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 117, 562AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A, 44(2)

Cases:
- Neal v R (1982) 149 CLR 305
- R v Simpson (2001) 53 NSWLR 704