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Court of Criminal Appeal 14 December 2007

SIMPSON, Danielle v R

[2007] NSWCCA 348

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE HENRY GUIDELINE REHABILITATION CONSIDERATIONS.

Citation: SIMPSON, Danielle v R [2007] NSWCCA 348
Court: NSW Court of Criminal Appeal
Date: 14 December 2007
Judge(s): Giles JA, Hulme J, Hislop J

Background

The appellant was convicted by a District Court jury of armed robbery, having stolen a digital camera from a young woman at knifepoint on a street in Belmore in March 2006. The victim was grabbed by the collar and fell to the ground during a struggle before the appellant seized the camera. Bystanders intervened and held the appellant until police arrived.

The appellant had a prior criminal history that included a 2001 conviction for robbery in company, for which she served a sentence with a two-year non-parole period. She had a longstanding heroin addiction, though she had used Buprenorphine (a heroin substitute) during and after her earlier imprisonment. Her three children had been in foster care since 2000 due to the combined effects of drug use and domestic violence in the home.

At the District Court, Bennett DCJ sentenced the appellant to a total term of six years, comprising a four-year non-parole period commencing 18 March 2006 and a two-year balance of term. The appellant sought leave to appeal on three grounds: that the sentencing judge mischaracterised planning as an aggravating factor, that he erred in his approach to rehabilitation, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in treating the offence as involving planning and organisation under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred in his treatment of the appellant's prospects for rehabilitation, having regard to her criminal history
  • Whether the total sentence of six years (four-year non-parole period) was manifestly excessive in the circumstances

Decision

On the first ground, the Court of Criminal Appeal rejected the appeal. The evidence supported a finding of limited planning: the appellant had brought a knife and had been waiting at the location for a suitable victim. The Court noted that even counsel for the appellant at the original sentencing hearing had conceded there was a limited degree of planning. The Court found the sentencing judge was entitled to treat this as an aggravating factor, whether under s 21A(2)(n) or s 21A(1)(c) of the Crimes (Sentencing Procedure) Act.

On the second and third grounds, the Court upheld the appeal. It found there was good reason to give rehabilitation prominence in the sentencing exercise. The appellant had completed her earlier parole without further offending for approximately six months, and had legitimately used Buprenorphine without relapsing into heroin use until a confusion over prescription scripts disrupted her treatment. The Court acknowledged that the reoffending had to temper the weight given to rehabilitation, but concluded that rehabilitation remained an important consideration in the circumstances.

Applying the guideline judgment in R v Henry, the Court concluded that a sentence in the four-to-five year range was appropriate for this category of offence. The Court weighed the features that pointed toward a more severe sentence, namely the appellant's criminal history and the absence of a guilty plea, against the significance of rehabilitation, and determined the original sentence was excessive. The special circumstances finding made by the sentencing judge, which justified the longer-than-usual balance of term relative to the non-parole period, was maintained.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed and replaced with a non-parole period of three years commencing 18 March 2006 and expiring 17 March 2009, with a balance of term of one year and six months commencing 18 March 2009 and expiring 17 September 2010
  • The appellant became eligible for release to parole on 17 March 2009

Key Takeaways

  • Under the R v Henry guideline for armed robbery, the Court of Criminal Appeal confirmed that sentencing must be calibrated against the indicated range, and a sentence outside that range requires clear justification from the offence's specific features.
  • Rehabilitation can carry significant weight in sentencing even where an offender has a prior robbery conviction, provided there is evidence of genuine progress and the circumstances of the reoffending are consistent with ongoing rehabilitative potential.
  • A finding of limited planning as an aggravating factor under the Crimes (Sentencing Procedure) Act 1999 does not require sophisticated or elaborate premeditation; carrying a weapon and positioning oneself to target an opportunistic victim was sufficient to support the finding here.
  • Where an offender's relapse and reoffending is connected to a disruption in legitimate drug treatment rather than a voluntary return to drug use, the sentencing court may treat that context as relevant to the weight given to rehabilitation prospects.
  • The Court reduced the total sentence from six years to four years and six months, illustrating that an otherwise unremarkable armed robbery sentence can still be manifestly excessive where rehabilitation considerations have not been adequately reflected in the final sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(1)(c), 21A(2)(n)

Cases:
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (guideline judgment for armed robbery)
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 (test for intervention on manifest excess)
- R v Fahs [2007] NSWCCA 26 (interpretation of planned or organised criminal activity under s 21A(2)(n))
- Veen v The Queen (No 2) (1988) 164 CLR 465